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1. Recovery of Personal Property the proper
action to recover personal property is replevin,
It is the independent and general right of a person to
governed by Rule 60, Rules of Court.
control a thing particularly in his possession,
2. Recovery of Real Property
enjoyment, disposition, and recovery, subject to no
a) Forcible Entry or Unlawful Detainer either
restrictions except those imposed by the state or
action was formerly referred to as accion
private persons, without prejudice to the provisions
of the law.
b) Accion Publiciana the plenary action to
recover the better right of possession.
c) Accion Reivindicatoria reivindicatory
1. Full Ownership includes all rights of an owner.
2. Naked Ownership the right to the use and the Additionally, we can also make use of in certain
fruits has been denied. cases of the:
3. Sole Ownership where the ownership is vested
1. Writ of Preliminary Mandatory Injunction
in only one person.
2. Writ of Possession
4. Co-ownership when the ownership is vested in
two or more owners.
It is defined as an act or provisional remedy where
BUNDLE OF RIGHTS the complainant prays for the recovery of the
1. Jus possidendi the right to possess; the right to possession of personal property.
hold a thing or to enjoy a right.
Elements of Replevin
2. Jus utendi the right to use; it includes the right
to exclude any person, as a rule, from the 1. That the applicant is the owner of the property
enjoyment and disposal thereof; the owner- claimed, particularly describing it, or is entitled to
possessor may use such force as may be the possession thereof;
reasonably necessary to repel or prevent an 2. That the property is wrongfully detained by the
actual or threatened unlawful physical invasion adverse party, alleging the cause of detention
or usurpation of the property. thereof according to his best knowledge,
3. Jus fruendi the right to the fruits; includes the information and belief;
right to three kinds of fruits natural, industrial 3. That it has not been distrained or taken for a tax
and civil rights. assessment or fine pursuant to law or seized
4. Jus abutendi the right to consume (and also to under a writ of execution or preliminary
transform or abuse); a person can indeed bur n attachment or otherwise placed under custodia
his own house if in an isolated place, but not legis or if so seized, that it is exempt from such
where the burning world endanger the seizure or custody; and
properties of others; a person can dispose of his 4. Actual market value of the property.
wealth, but he must leave enough for his own
support and for those whom he is obliged to
5. Jus disponendi the right to dispose; includes It is a summary action to recover material or physical
the right to donate, to sell, to pledge or possession of real property when a person originally
mortgage. in possession was deprived thereof by force,
6. Jus vindicandi the right to recover. intimidation, strategy, threat, or stealth.
7. Jus accessiones the right to accessories
Prescriptive Period
The action must be brought within one year from
the dispossession. However, in case of strategy or
stealth, it would seem that the better rule would be


to count the period of one year from the time of NOTE: A squatters possession is by tolerance. This
DISCOVERY of such strategy or stealth. kind of possession becomes unlawful from the time
the owner makes a demand on the squatter to
vacate the premises.
The issue involved is mere physical possession
(possession de facto) and not juridical possession
(possession de jure) nor ownership. FORCIBLE ENTRY UNLAWFUL DETAINER
The possession was The possession was
It is the action that must be brought when
possession by a landlord, vendor, vendee or other unlawful from the very lawful in the beginning,
person of any land or building is being unlawfully beginning but became unlawful
withheld after the expiration or termination of the afterwards
right to hold possession, by virtue of any contract,
The issue involved is The issue involved is
express or implied. In such a case, prior physical
possession IS NOT required. the right to the the right to the
material possession of material possession of
The action can apply to all kinds of land, whether
the premises the premises
agricultural, residential, or mineral, since the law
does not distinguish. Proceedings in Proceedings in
NOTE: A person or squatter who occupies the land of personam (binding only personam (binding only
another at the latters tolerance or permission, on the parties and on the parties and
without any contract between them, is necessarily privies) privies)
bound by an implied promise that he will vacate
upon demand, failing which, a summary action for
ejectment or unlawful detainer is the proper remedy
against him. (Yu v. De Lara)
Prescriptive Period It is intended for the recovery of the better right to
The action must be brought within one year from possess, and is a plenary action1 in an ordinary civil
the time possession becomes unlawful, thus proceeding before a Regional Trial Court.

1) if there is a xed period for the termination of It is the action when deprivation of possession
the lease, the lease ends automatically without (forcible entry and unlawful detainer) has lasted
need of any demand; hence, the one-year period more than one year, the action to recover falls
begins from the expiration of the lease. within the jurisdiction of the Regional Trial Court.
2) if the reason for ejectment is non-payment of Prescriptive Period
rent or the non-fulllment of the conditions of
the lease, then the one-year period must be It must be brought within a period of ten years,
counted from the date of demand to vacate. otherwise, the real right of possession is lost.

(Thus, if the demand to vacate comes only 3 Issue

years from the time tenant had begun not to pay The issue is not possession de facto (material and
the rents, the landlord still has a period of one physical possession) but possession de jure (better
year to be counted from the date of such right of possession).
Two Kinds of Plenary Actions to Recover Possession
The demand must be made at least 5 days (Accion Publiciana)
(building) or 15 days (land) before the action is
Issue 1In Plenary Action, it is where witnesses are to testify and
present evidences. In Summary Proceeding, it does not
The issue is possession de facto (material
need testimonies, and a position paper with judicial
possession), not possession de jure nor ownership. affidavits attached to it is only needed.


1. That where the entry was not obtained thru WRIT OF POSSESSION
FISTS (fraud, intimidation, stealth, threat, or
A writ of possession used in connection with the
Land Registration Law is an order directing the
2. That where the one-year period for bringing
sheriff to place a successful registrant under the
forcible entry or unlawful detainer has already
Torrens system in possession of the property
covered by a decree of the Court.
Accion Pauliana is the action to rescind contracts in
fraud of creditors.
The right of ownership is not absolute. There are
limitations which are imposed for the benet of
The accion reivindicatoria or reivindicatory action is
humanity, and which are based on certain legal
dened as an action to recover ownership over real
maxims, such as the following:
property. The action must be brought in the Regional
Trial Court where the real estate is situated. 1. The welfare of the people is the supreme law of
the land.
Prescriptive Period
2. Use your property so as not to impair the rights
It must be brought within 10 years or 30 years as the of others. Sic utere tuo ut alienum non laedas.
case may be (depending on whether the other party The owner of a thing cannot make use thereof
seeks to obtain ownership by ordinary or in such a manner as to injure the rights of a third
extraordinary prescription). person. (Art. 431).
The issue involved is ownership, and for this STEWARDSHIP PRINCIPLE
purpose, evidence of title or mode may be
The property owner is bound to use or utilize their
lands in a manner that will promote welfare and
NOTE: It is permissible to le both an action for benefits not only for themselves but also for the
ownership (reivindicatoria) and for detainer over the State.
same land, and between the same parties, because
The State may regulate or control land ownership.
the issues involved are different.
Social responsibility or obligation in a manner that
NOTE: An action for reconveyance based on an
using own properties will not impair the rights of the
implied trust, prescribes in ten (10) years. If based
on fraud, the action prescribes in four (4) years,
counted from the discovery of the fraud.
WRIT OF INJUNCTION 1. Those given by the State or the Law.
A person deprived of his possession of real or 2. Those given by the owner (or grantee) himself.
personal property is ordinarily not allowed to avail 3. Those given by the person (grantor) who gave
himself of the remedy of preliminary preventive or the thing to its present owner.
prohibitory injunction, the reason being that the
defendant in actual possession is presumed
disputably to have the better right. 1. Limitations imposed by the State police
power, power of taxation, power of eminent
Under the Civil Code, however, under certain
conditions, and in view of the frequent delays in
2. Limitations imposed by the Law the legal
cases of this nature, the remedy of the writ of
easement of waters, the legal easement of right
preliminary mandatory injunction may be availed of
of way.
in the original case of forcible entry; and during the
3. Limitations imposed by the owner when the
appeal, in the case of unlawful detainer.
owner leases his property to another, said owner


in the meantime cannot physically occupy the destroy a or personal refers to a

premises; when the owner pledges his personal house so that properties taking for
property, he has in the meantime to surrender its re would not public use,
spread; to extraordinary
4. Limitations imposed by the grantor the donor
may prohibit the donees from partitioning the remove expropriation
property for a period not exceeding twenty (20) billboards is allowed
years. which are under our
offensive to 1987
sight Constitution

The right of It is the It is the right BURDENS OF OWNERSHIP

the State to inherent of the State to
While an owner has certain rights over his property,
regulate and power of a acquire
subject to the limitations hereinabove already
restrict State to raise private
discussed, he suffers also from certain disadvantages
personal and income or property for or consequences of said ownership. For example, we
property rights revenue to public use have the rule of res perit domino (the owner bears
for the defray upon payment the loss of the property owned by him).
common weal. necessary of just
governmental compensation.
expenses for a
public The right to counter, in certain cases, force with
purpose. force. It includes not only defense to a mans person
but also that of his rights, including the right to
It is a Real as well as It may be property. However, it does not apply when owner
limitation on personal exercised even loss possession after lapse of time.
the right of property may over private Article 429 of the Civil Code
ownership in be taxed, and properties of
The owner or lawful possessor of a thing has the
the sense that unless the cities and
right to exclude any person from the enjoyment and
property may taxes are paid municipalities, disposal thereof. For this purpose, he may use such
be interfered there is and even over force as may be reasonably necessary to repel or
with, even danger that lands prevent an actual or threatened unlawful physical
destroyed, if the property registered invasion or usurpation of his property.
the welfare of may be seized with a Torrens Example
the and title
I have a car; I see a thief about to get it. I can use
community so conscated by force in driving the thief away, provided that the
demands it. the means I resort to are reasonable. As a matter of fact,
government. I can even chase him immediately and recover the
car from him by force.
to abate to impose ordinary
nuisances; to taxes on real expropriation
2 Essential requisites are (a) taking by competent authority Article 11, Paragraph 4, Revised Penal Code
(b) observance of due process of law (c) taking for public
use (d) payment of just compensation. While eminent The state of necessity is considered a justifying
domain refers to the right, expropriation usually refers to circumstance. Any person who, in order to avoid an
the procedure, thru which the right is exercised.


evil or injury, does an act which causes damage to latter, being in possession, is presumed to be the
another does not incur criminal liability provided owner, and cannot be obliged to show or prove a
that the following requisites are present: better title.
a) that the evil sought to be avoided actually
b) that the injury feared be greater than that
Article 439 of the Civil Code
done to avoid it;
c) that there be no other practical and less By treasure is understood, for legal purposes, any
harmful means of preventing it. hidden and unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of
Article 432 of the Civil Code
which does not appear.
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 Article 438 of the Civil Code
danger and the threatened damage, compared to
Hidden treasure belongs to the owner of the land,
the damage arising to the owner from the
building, or other property on which it is found.
interference, is much greater. The owner may
demand from the person beneted indemnity for Nevertheless, when the discovery is made on the
the damage to him. property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall
be allowed to the nder.
To prevent re from spreading and thus burning
If the nder is a trespasser, he shall not be entitled
valuable houses, remen may dynamite or destroy
to any share of the treasure. If the things found be of
barong-barongs between the re and the shacks so
interest to science or the arts, the State may acquire
as to stop the re. The owners of the barong-
them at their just price, which shall be divided in
barongs have no right to interfere. However, the
conformity with the rule stated.
owners of the buildings saved will have to
compensate the owners of the shacks destroyed.
NOTE: If X nds a hidden treasure in his house, he
alone owns the treasure. If he is married, the
treasure belongs to the conjugal partnership.
1. actual possession
NOTE: For the nder to be entitled to one-half, the
2. claim of ownership
discovery on anothers property must be by
Article 541 of the Civil Code chance there must be no purpose or intent to
look for the treasure.
A possessor in the concept of owner has in his favor
the legal presumption that he possesses with a just NOTE: With respect to hidden treasure which may
title and he cannot be obliged to show or prove it. be found on the land or tenement, the usufructuary
shall be considered a stranger. Art. 566 The
usufructuary does not get a share.
NOTE: In the case of paid laborers, a distinction must
1. Property must be identified the boundaries of be made. If he really discovered the property by
the land sought must be proved, so that if a chance, he gets half. If on the other hand, he had
person fails to specify which portion of a parcel been employed precisely to look for the treasure, he
of land is the portion he is supposed to have will get nothing insofar as the treasure is concerned.
inherited, his action to recover the property will Of course, he will get his wages or salary.
necessarily fail.
NOTE: If hidden treasure is found by chance under a
2. Reliance on the title of the plaintiff if the
municipal plaza, who owns the treasure? ANS.: Half
claims of both plaintiff and defendant are weak,
goes to the nder and the other half to the
judgment must be for the defendant, for the


NOTE: A trespasser (one prohibited to enter, or not

given authority to enter) who discovers hidden
treasure is not entitled to any share of the treasure.
If a person lawfully allowed to enter discovers the
treasure, but does not reveal the fact of discovery,
he does not thereby become a trespasser, in view of
the permission to enter. Thus, he is entitled still to
his share.
NOTE: A treasure hunt is an express search for
hidden treasure. An owner of land may for example
contract with a group of men who would look for the
treasure. Should discovery be made, the actual
nders will not necessarily be entitled to half.
Instead, they will be given what has been stipulated
in the contract.


QUIETING OF TITLE such claim and its effect on his title, or to assert any
superior equity in his favor.
Quieting of title is a common-law remedy for the
removal of any cloud upon or doubt or uncertainty He may wait until his possession is disturbed or his
with respect to title to real property title is attacked before taking steps to vindicate his
To secure an adjudication that a claim of title to or 2. If the plaintiff is NOT in possession of the
an interest in property, adverse to that of the property, the action MAY PRESCRIBE.
complainant, is invalid, so that the complainant and Even if the action is brought within the period of
those claiming under him may be forever afterward limitations, it may be barred by LACHES, where there
free from any danger of hostile claim. is no excuse offered for the failure to assert the title
sooner. (See Ongsiako, et al. v. Ongsiako, meron
1. REMEDIALaction to remove cloud or to quiet 3. If somebody else has possession
title ( Para mawala na yung cloud(possible third The period of prescription for the recovery of the
party interest/ duda sa titulo) land is either 10 or 30 years, depending on ordinary
or extraordinary prescription. And even if brought
2. PREVENTIVEaction to prevent a future cloud within the prescriptive period, the action may no
or doubt (Para makita na ng third parties in view of longer prosper if there has been an unreasonable or
the title na malinis talaga yung title having been unjustified delay in fi ling the suit estoppel by
declared by a competent court na free of liens or laches.
encumberances and doubt)
As a general rule, it is settled that an action to quiet
C. REQUISITES FOR THE EXISTENCE OF CLOUD title does not prescribe.
The cloud (or doubt) on title exists because:
Necessity for Title of the Plaintiff
(a) of an instrument (deed, or contract) or record or The plaintiff must either have: the legal (registered)
claim or encumbrance or proceeding. ownership or the equitable (beneficial) ownership.
Otherwise, the action will not prosper.
(b) which is APPARENTLY valid or effective.
One who has complied with all the terms and
(c) BUT is, in truth and in fact, invalid, ineffective, conditions which would entitle him to a homestead
voidable, or unenforceable, or extinguished (or patent, even without a right on the land is to be
terminated) or barred by extinctive prescription. regarded as the equitable owner thereof.

(d) AND may be prejudicial to the title. Two Instances Where the Action to Quiet Title May
Be Used
D. REQUISITES FOR AN ACTION TO QUIET (a) when the contract, etc., has ended;
TITLE TO PROSPER (b) when the action is barred by extinctive
It must be made clear that there is a fixed prescription
determination on the part of the defendant to
create a cloud and it is not sufficient that the danger Example of (a):
is merely speculative. 1. X was given by Y the right of ownership over a
piece of land for 5 years. At the end of that time, if X
E. PRESCRIPTIVE PERIOD insists on his continued ownership, Y may bring the
1. If the plaintiff is in possession of the property, action to quiet title.
The owner has a continuing right to be given aid by 2. A piece of land was given to a husband and his
the court to ascertain and determine the nature of wife on condition that if the wife later on deserts
unjustifiably the husband, the latter would be the


sole owner thereof. The wife, after a few months, 2) that the defendant has acquired the ownership
deserted unjustifiably the husband, but insisted on by,
her co-ownership. The husband may now bring the for example, adverse possession.
action because the resolutory condition has been
fulfi lled. 3) that the case has already been previously decided
between the parties on the same issue res
Examples of (b) judicata.
1. A possessed Bs land in bad faith adversely,
publicly, and continuously for 30 years. A is now, 4) that the defendant became the owner after the
therefore, the owner. If B still insists on his action had been fi ed, but before he filed his answer
ownership, A may bring the action to quiet title. In (as by succession, donation, etc.).
this case, B can really not recover the land anymore
from A. 5) that the action has prescribed, the plaintiff being
outside of possession.
Art. 479. The plaintiff must return to the defendant
all benefits he may have received from the latter, Instances when the Action to Quiet Title Will Not
or reimburse him for expenses that may have Prosper
redounded to the plaintiffs benefit.
(a) if it is merely an action to settle a dispute
Duty of Plaintiff to Make Certain Reimbursement concerning boundaries.

Example: A bought land thru an agent whose (b) if the case merely involves the proper
authority was not in writing. A then built a fence interpretation and meaning of a contract or
around the land. In an action to quiet title, the document.
principal(totoong may ari ng lupa) will win (since
under Art. 1874, the sale is really void) but he must (c) if the plaintiff has no title, either legal or
reimburse A for the expenses for the fence, since equitable.
this has redounded to his (the principals) benefit.
(d) if the action has prescribed and the plaintiff is not
Question last semester: in possession of the property.
X, a real estate agent, was given a written Authority
to Sell a parcel of land owned by Y. X negotiated the (e) if the contract, instrument, etc. is void on its face.
sale of the property and finally found Z, a buyer. X (For instance, assume that X, armed with a certain
then executed a Deed of Sale but a day before the document, seeks to eject Y. If the document on its
signing was to take place, Y died. Nonetheless, a face is so defective that Y does not even have to
week after X and Z proceeded with the signing of the present rebuttal evidence, the document may be
Deed of Sale but antedated the date of the sale to said to be void on its face. In a case like this, Y, to
make it appear that the Deed was executed during protect his rights, does not have to bring an action to
the lifetime of Y. What is the legal consequence of quiet title.
the Ys death?
Answer: The Deed of Sale executed by X, a real (f) if it is a mere claim or assertion (whether oral or
estate agent was a forgery, the same being executed written) unless such claim has been made in a court
when his principal Y was already dead. The heirs of Y action or the claim asserts that an instrument or
may file an Action to Quiet Title to have the Deed of entry in behalf of the plaintiff is not really what it
Sale voided so that the property may revert to the appears to be.
What is the Courts Task
Regarding Defenses: The defendant can win if he The court is tasked to determine the respective
can prove: rights of the parties so that the complaint and those
claiming under him may be forever free from any
1) that the plaintiff does not have legal or equitable danger of hostile claim.


CASE IN QUIETING OF TITLE encumbrance or proceeding which is actually invalid

or inoperative, but which may nevertheless impair or
LUCASAN V PDIC affect injuriously the title to property. PDIC claimed
that the notice of embargo was issued pursuant to a
Facts: Pacific Banking Corporation (PBC) extended writ of execution, while the certificate of sale was
a P5,000.00 loan to Lucasan. Lucasan failed to pay executed as a result of a public bidding. Thus, their
the loan when it became due and demandable. annotations on the titles were valid, operative or
Consequently, PBC filed a collection case. The RTC effective. PDIC asserted that Lucasans petition is
issued a writ of execution directing the sheriff to nothing but a disguised attempt to compel PDIC to
effect a levy on the properties owned by Lucasan resell the properties at a reduced price
and sell the same at public auction. of P100,000.00. Accordingly, it prayed for the
City Sheriff of Bacolod issued a Notice of Embargo on dismissal of the petition.
the same titles. The lots were sold at public auction
and were awarded to PBC as the highest bidder Issue: Whether or not Lucasan's petition to quiet
title is valid and proper.
Lucasan, through counsel, wrote a letter to the
Philippine Deposit Insurance Corporation (PDIC), Held: No, under ART. 476. Whenever there is a
PBCs receiver and liquidator seeking the cloud on title to real property or any interest
cancellation of the certificate of sale and offering to therein, by reason of any instrument, record, claim,
pay PBCs claim against Lucasan. Not long thereafter, encumbrance or proceeding which is apparently
Lucasan paid his loans. Consequently, the valid or effective but is in truth and in fact invalid,
mortgagee banks executed their respective releases ineffective, voidable, or unenforceable, and may be
of mortgage, resulting in the cancellation of the prior prejudicial to said title, an action may be brought to
encumbrances on Lucasan's lot. remove such cloud or to quiet the title.

PDIC denied Lucasans request for the cancellation of An action may also be brought to prevent a cloud
the certificate of sale stating that it had already from being cast upon title to real property or any
become part of the acquired assets of Pacific interest therein.
Banking Corporation by virtue of a Certificate of
Sale executed by the City Sheriff of Bacolod. The ART. 477. The plaintiff must have legal or equitable
redemption period on the titles started from June 5, title to, or interest in the real property which is the
1981 and that the last day of the redemption period subject-matter of the action. He need not be in
was June 5, 1982, therefore the right of redemption possession of said property.
had elapsed, hence, the properties can only be
disposed through public bidding using the latest To avail of the remedy of quieting of title, two (2)
appraised value in the total amount indispensable requisites must concur, namely:
of P2,900,300.00 as of March 29, 2000 as minimum
bid (1) the plaintiff or complainant has a legal or an
equitable title to or interest in the real property
Thereafter, Lucasan then filed a petition subject of the action; and
denominated as declaratory relief with the RTC.
Lucasan also pleaded for the lifting and/or (2) the deed, claim, encumbrance or proceeding
cancellation of the notice of embargo and the claimed to be casting a cloud on his title must be
certificate of sale annotated shown to be in fact invalid or inoperative despite
its prima facie appearance of validity or legal
PDIC moved to dismiss the complaint for lack of efficacy.
cause of action. It averred that an action to quiet
title may only be brought when there is a cloud on, Stated differently, the plaintiff must show that he
or to prevent a cloud from being cast upon, the title has a legal or at least an equitable title over the real
to real property. It asseverated that a cloud on the property in dispute, and that some deed or
title is an outstanding instrument record, claim, proceeding beclouds its validity or efficacy.


Unfortunately, the foregoing requisites absent this


In the case at bar, the subject parcels of land were

levied upon by virtue of a writ of execution and a
public auction of the subject parcels of land was held
and the lots were awarded to PBC as the highest
bidder. A certificate of sale in favor of PBC was
issued on the same day, and was registered and

Under the Rules of Court, which were in effect at

that time, the judgment debtor or redemptioner had
the right to redeem the property from PBC within
twelve (12) months from the registration of the
certificate of sale. With the expiration of the twelve-
month period of redemption and no redemption
having been made, as in this case, the judgment
debtor or the redemptioner lost whatever right he
had over the land in question.

Lucasan admitted that he failed to redeem the

properties within the redemption period, on
account of his then limited financial situation. It
was only or fifteen (15) years later that he
manifested his desire to reacquire the
properties. Clearly thus, he had lost whatever right
he had over the lots.

Certainly, Lucasan no longer possess any legal or

equitable title to or interest over the subject
parcels of land; hence, he cannot validly maintain
an action for quieting of title.

Furthermore, Lucasan failed to demonstrate that the

notice of embargo and the certificate of sale are
invalid or inoperative. In fact, he never put in issue
the validity of the levy on execution and of the
certificate of sale. It is clear, therefore, that the
second requisite for an action to quiet title is,
likewise, absent.

Concededly, Lucasan can pursue all the legal and

equitable remedies to impeach or annul the
execution sale prior to the issuance of a new
certificate of title in favor of PBC. Unfortunately, the
remedy he had chosen cannot prosper because he
failed to satisfy the requisites provided for by law for
an action to quiet title. Hence, the RTC rightfully
dismissed Lucasans complaint.

10 | P a g e

CO-OWNERSHIP all, shall be maintained at the expense of all the

owners pro rata;
The undivided thing or right belongs to two or more
(3) The stairs from the entrance to the first story
shall be maintained at the expense of all the owners
Co-ownership is the right of common dominion pro rata, with the exception of the owner of the
which 2 or more persons have in a spiritual (ideal or ground floor; the stairs from the first to the second
aliquot) part of a thing which is not physically story shall be preserved at the expense of all, except
divided. the owner of the ground floor and the owner of the
first story; and so on successively.
In co-ownership, there is only1 ownership, but it is
shared ownership.
This hardly exists anymore.
Each co-owner owns a fractional or an ideal part of
Condominium Law (RA 4726 as amended by
the object but they cannot point to a specific part of
R.A. No. 7899)
the object.
Most condominiums are corporations. If the
condominium is a co-ownership, then the
A. CHARACTERISTICS OF CO-OWNERSHIP provisions of the Civil Code are relevant.

1. More than 1 owner
2. There is one physical whole divided into ideal or 1. By law
undivided shares Law may mandate co-ownership (i.e., party wall)
3. Each ideal share is definite in amount but not 2. By contract
physically segregated from the rest 3. By chance
4. As to the physical whole, each co-owner must Examples are commixtion or confusion
respect the other co-owners in its common use, 4. By occupation
enjoyment and preservation (Article 483) Fishermen are co-owners of the whale they caught.
5. As to the ideal share, each co-owner holds 5. By succession
absolute control (Article 493) Compulsory, testamentary, intestate
6. No juridical personality of its own
7. A co-owner is in a sense a trustee for other co-
8. There is no mutual agency
9.There is no extinguishment upon the death of any DISTINCTION BETWEEN RIGHT TO PROPERTY
Art. 490. Whenever the different stories of a house A. Right to Property owned in common
belong to different owners, if the titles of ownership
do not specify the terms under which they should 1. As to expenses and benefits
contribute to the necessary expenses and there A co-owners share in the fruits(benefits) and
exists no agreement on the subject, the following expenses (charges) is always proportional on the co-
rules shall be observed: owners interest. Any agreement to the contrary is
(1) The main and party walls, the roof and the other void.
things used in common, shall be preserved at the
expense of all the owners in proportion to the value The portions belonging to the co-owners in the co-
of the story belonging to each; ownership shall be presumed equal, unless the
(2) Each owner shall bear the cost of maintaining the contrary is proved.
floor of his story; the floor of the entrance, front
door, common yard and sanitary works common to Although Art. 485 refers to contractual agreements,
it should extend to other sources of co-ownership
since Art. 485 is an expression of public policy.

11 | P a g e

2. In bringing an action.
b. There shall be no majority unless the resolution is
Any one of the co-owners may bring an action in
approved by the co-owners who represent the
controlling interest in the object of the co-
A, B, C, D, and E are co-owners of a lot ownership.
which is being squatted. A files an
ejectment suit. A wins. All the other co- c. Should there be no majority, or should the
owners benefit. Do the other co-owners resolution of the majority be seriously prejudicial to
share in the expense? Yes, one can argue those interested in the property owned in common,
that its a necessary expense. the court, at the instance of an interested party,
A, B, C, D, and E are co-owners of a lot shall order such measures as it may deem proper,
which is being squatted. A files an including the appointment of an administrator.
ejectment suit. A loses. May the other sue
for ejectment? No, it is barred by prior d. Whenever a part of the thing belongs exclusively
judgment. to one of the co-owners, and the remainder is
owned in common, the preceding provision shall
A,B, and C bought a book on credit. They apply only to the part owned in common.
are co-owners of a book. In an action by the
creditor against the co-owners, the creditor B. Right to Property in full ownership over his ideal
must sue all. Article 487 contemplates a share
situation when it is the co-owner who files
the suit not when they are the defendants. Article 493 is the rule regarding fractional interest.
Article 487 is a case where one co-owner can bind The partner provision of Article 493 is Article 486
the other. The other instance is Article 489. Article 486 provides that each co-owner may use
the thing owned in common, provided he does so in
3. As to the Repairs accordance with the purpose for which it is
General Rule: Repairs for preservation may be made intended and in such a way as not to injure the
at the will of one of the co-owners. (Necessary interest of the co-ownership or prevent the other
expenses) co-owners from using it according to their rights.
The purpose of the co-ownership may be changed
No consent of all the co-owners is required by agreement, express or implied
A co-owner may lease his fractional or ideal share.
As much as possible or practicable, notice should be
given to the other co-owners. The lack of notice only A co-owner may not dispose of the entire property
gives rise to the presumption that the repairs were owned in common. If he does so, the transaction is
not necessary. However, this can be proven valid in so far as his ideal share is concern.
otherwise. Co-owners must respect the rights of the other co-
Exception: Expenses to improve or embellish the
thing is to be decided by the majority.
Right with respect to the ideal or proportionate
Majority is computed not by counting heads but by share
majority of the controlling interest in the co- Deals into with the right to the whole property but
ownership. As provided under Article 492 only with the right to the IDEAL or metaphysical
share of each co owner.
4. As to the Administration; in case there is dispute
such as bad or good alterations. Article 492. Rules regarding the ideal share
1. Each co-owner must have full ownership of his
a. For the administration and better enjoyment of part and his share of the fruits and benefits
the thing owned in common, the resolutions of the 2. He may alienate, assign or mortgage his ideal
majority of the co-owners shall be binding. (Financial share but of course without prejudice to the exercise
majority) of the others of their right of legal redemption

12 | P a g e

3. He may even substitute another person for the testator, for a period not exceeding 20 years
enjoyment except when personal rights are involved 3. When partition is prohibited by law
4. He may exempt himself from necessary expenses 4. When a physical partition would render the
and taxes by renouncing part of his interest in the property unserviceable but in this case, the property
co-ownership may be allotted to one of the co-owners.
Under Article 498, when the thing is
essentially indivisible and the co-owners
cannot agree that it be allotted to one of
In order to make alterations, the consent of all co- them who shall indemnify the others, it
owners is needed even if it would benefit all of shall be sold and its proceeds be
them. distributed.
An alteration is an act of strict ownership (i.e. any
Juridical Dissolution
act of encumbrance) or one which involves a change
a. First, give the whole to one of the co-owners who
in the use of the thing.
will now be required to indemnify the rest
Alteration: b. If this is not agreed upon, there must be a sale
1. Change which is more or less permanent.
2. Which changes the use of the thing. What is allowed only is a constructive and
3. Which prejudices the condition of the thing or its not a physical partition
enjoyment by others.
5. When the legal nature of the common property
However, if the withholding of the consent by one or
Prohibition of Partition because of an
more of the creditors is clearly prejudicial to the
common interest, the court may intervene and
afford adequate relief. 1. Period must not extend more than 10 years
2. If it exceeds 10 years, the stipulation is valid
Remedy in case of good or bad alterations, there insofar as the first 10 years is concerned
shall be an administration of the common property, 3. There can be an extension but only after the
headed by the controlling majority ( see notes under original period has ended
Art 492) 4. After the first extension, there can be another,
and so on
RIGHT TO PARTITIONS indefinitely, as long as for each extension, the period
of 10 years is not exceeded
No co-owner shall be obliged to remain in the co-
General Rule: Prescription will not run if the object is
Partition in possession of anyone of the co-owners since such
Partition converts into certain and definite partsof possession is not adverse or because the co-owners,
the respective share of the undivided shares of the expressly or impliedly recognizes the co-ownership
co-owners. Exception: Co-owner repudiates the co-ownership
General Rule: Partition is demandable by any of the and the prescriptive period will start to run.
co-owners as a matter of right at any time. If the
other co-owners do not consent, then go to court. Requisites of Repudiation
Exceptions: 1. Clear and unequivocal act of repudiation of the co
When a Co-Owner may not successfully 2. Act of repudiation must be made known
demand a partition 3. Clear and convincing evidence
1. If by agreement, for a period not exceeding 10 4. Other requirements of prescriptionopen,
years, partition is prohibited continuous, exclusive, notorious, adverse, public
2. When partition is prohibited by the donor or possession in the concept of owner.

13 | P a g e

RIGHT TO CONTRIBUTIONS FOR EXPENSES the same without proper authority: the husband
with respect to the wife's paraphernal real estate,
Each co-owner has the right to compel the other co-
the father or guardian as to the property of the
owners for expenses for the preservation of the
minor or ward, and the manager without special
thing owned in common as well as taxes must be
shouldered by every co-owner in proportion to their
A co-owner has 2 options: Art. 1648. Every lease of real estate may be
recorded in the Registry of Property. Unless a lease
1. Pay for the necessary expenses or taxes
2. Exempt himself from this obligation by renouncing is recorded, it shall not be binding upon third
so much of his undivided interest which is equivalent persons.
to his share to the co-owner who paid for the
necessary expenses or taxes
The co-owner who made the advance has a 1. Judicial Partition
right of reimbursement. The advancing co- 2. Extrajudicial Partition
owner only has the right to require 3. When by prescription, one co-owner has acquired
payment. He may not demand the share of the whole property by adverse possession as against
the co-owner. all the others and repudiating unequivocally the co-
No waiver shall be made if it is prejudicial to ownership of the other
the co-ownership 4. When a stranger acquires by prescription to the
Expenses herein pertains only to necessary thing owned in common
expenses 5. Merger in one co-owner
6. Loss or destruction
RIGHT TO REDEMPTION OF CO-OWNERS SHARE 7. Expropriation (in this case, indemnity will be
Art. 1620. A co-owner of a thing may exercise the distributed accordingly)
right of redemption in case the shares of all the
other co-owners or of any of them are sold to a third 1. EFFECTS OF PARTITION
person. Upon Partition:
If the price of the alienation is grossly excessive, the 1.There shall be a mutual accounting for benefits
redemptioner shall pay only a reasonable one. received.
2.Reimbursement for expenses made.
Should two or more co-owners desire to exercise the 3.Each co-owner shall pay for damages caused by
right of redemption, they may only do so in reason of his negligence or fraud.
proportion to the share they may respectively have 4. Every co-owner shall be liable for defects of title
in the thing owned in common. and quality of the partition assigned to each of the
Art. 1623. The right of legal pre-emption or
5. Each former co-owner is deemed to have had
redemption shall not be exercised except within
exclusive possession of his part allotted to him for
thirty days from the notice in writing by the
the entire period during which the co-possession
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 partition of a thing owned in common shall not
The right of redemption of co-owners excludes that
prejudice third persons, who shall retain the rights of
of adjoining owners.
mortgage, servitude or any other real rights
belonging to them before the division was made.
Art. 1647. If a lease is to be recorded in the Registry
of Property, the following persons cannot constitute

14 | P a g e

Personal rights pertaining to third persons against CASES IN CO-OWNERSHIP

the co-ownership shall also remain in force,
notwithstanding the partition. PROTACIO GO V SERVACIO

3.PARTITION IN CASE CO-OWNERS CANNOT AGREE Facts: Marta Barola Go died. She was the wife of
Protacio, Sr. and mother of the petitioners. Protacio,
Sr. and his son Rito B. Go (joined by Ritos wife Dina
Art. 496. Partition may be made by agreement B. Go) sold a 5,560 square meter portion of the
between the parties or by judicial proceedings. property to Ester L. Servacio (Servacio) for
Partition shall be governed by the Rules of Court 5,686,768.00. The petitioners demanded the return
insofar as they are consistent with this Code. of the property, but Servacio refused to heed their
demand. After barangay proceedings failed to
resolve the dispute, they sued Servacio and Rito in
the Regional Trial Court in Maasin City, Southern
Leyte (RTC) for the annulment of the sale of the
THE FOLLOWING: property.

The petitioners averred the following:

1. Is there co-ownership?
2. Are they the co-owners? The property being sold by Rito Go and Protacio Sr.
3. What are their respective shares? is a conjugal property; and that the sale of the
4. What would be the allocation? property to Servacio without the prior liquidation of
the community property between Protacio, Sr. and
Marta was null and void.
Art. 497. The creditors or assignees of the co-owners
may take part in the division of the thing owned in Servacio and Rito countered that Protacio, Sr. had
common and object to its being effected without exclusively owned the property because he had
their concurrence. But they cannot impugn any purchased it with his own money.
partition already executed, unless there has been
fraud, or in case it was made notwithstanding a Thereafter, the RTC declared that the property was a
formal opposition presented to prevent it, without conjugal property of Protacio, Sr. and Marta.
prejudice to the right of the debtor or assignor to Nonetheless, the RTC affirmed the validity of the
maintain its validity. sale of the property, holding that: As long as the
portion sold, alienated or encumbered will not be
allotted to the other heirs in the final partition of the
property, or to state it plainly, as long as the portion
sold does not encroach upon the legitimate of other
heirs, it is valid

RTC opined:

This rule applies not only to sale but also to

mortgages. The alienation, mortgage or disposal of
the conjugal property without the required
formality, is not however, null ab initio, for the law
recognizes their validity so long as they do not
exceed the portion which, after liquidation and
partition, should pertain to the surviving spouse who
made the contract.

In the instant case, the 5,560 square meter portion

of the 17,140 square-meter conjugal lot is certainly
much less than what vendors Protacio Go and his

15 | P a g e

son Rito B. Go will eventually get as their share in including themselves, of specific shares in Martas
the final partition of the property. So the sale is still estate. Neither did they aver that the conjugal
valid. properties had already been liquidated and
partitioned. Accordingly, pending a partition among
WHEREFORE, premises considered, complaint is the heirs of Marta, the efficacy of the sale, and
hereby DISMISSED without pronouncement as to whether the extent of the property sold adversely
cost and damages. affected the interests of the petitioners might not
yet be properly decided with finality. The
The RTCs denial of the petitioner's motion for appropriate recourse to bring that about is to
reconsideration prompted the petitioners to appeal commence an action for judicial partition.
directly to the Court on a pure question of law.
* From the foregoing, it may be deduced that since a
Issue: Whether or not the sale of land of Protacio Sr. co-owner is entitled to sell his undivided share, a
and Rito Go is valid? sale of the entire property by one co-owner
without the consent of the other co-owners is not
Held: Yes it is valid. Under Article 493. Each co-
null and void. However, only the rights of the co-
owner shall have the full ownership of his part and
owner-seller are transferred, thereby making the
of the fruits and benefits pertaining thereto, and he
buyer a co-owner of the property.
may therefore alienate, assign or mortgage it, and
even substitute another person in its enjoyment, Appropriate recourse of co-owners in cases where
except when personal rights are involved. their consent were not secured in a sale of the
entire property as well as in a sale merely of the
Protacio, Sr., although becoming a co-owner with his
undivided shares of some of the co-owners is an
children in respect of Martas share in the conjugal
action for PARTITION.
partnership, could not yet assert or claim title to any
specific portion of Martas share without an actual Servacio would be a trustee for the benefit of the co-
partition of the property being first done either by heirs of her vendors in respect of any portion that
agreement or by judicial decree. Until then, all that might not be validly sold to her.
he had was an ideal or abstract quota in Martas
share. Nonetheless, a co-owner could sell his
undivided share; hence, Protacio, Sr. had the right to
freely sell and dispose of his undivided interest, but BALOLOY V HULAR
not the interest of his co-owners.
Facts: Spouses Victoriana Estopin were the original
Consequently, the sale by Protacio, Sr. and Rito as owners of a parcel of land located in, Juban,
co-owners without the consent of the other co- Sorsogon(Lot 3347). A major portion of the property
owners was not necessarily void, for the rights of was agricultural, while the rest was residential.
the selling co-owners were thereby effectively When Lino Estopin died intestate, his widow,
transferred, making the buyer (Servacio) a co-owner Victoriana Lagata, executed a Deed of Absolute Sale
of Martas share. This result conforms to the well- on over the agricultural portion of the Lot (15,906
established principle that the binding force of a sqm) and the residential portion of the property (287
contract must be recognized as far as it is legally sqm) to Astrologo Hular. In 1961: Iluminado Baloloy
possible to do so. asked Astrologo Hulars permission to construct a
house on a portion of Lot No.3347 and the latter
Remedy of the other co-owners on the sale of the
unpartitioned lot

The respondents aver that each of the heirs had Iluminado Baloloy in 1945 acquired a coconut land
already received a certain allotted portion at the (north of the residential portion of Lot 3347 Lot No.
time of the sale, and that Protacio, Sr. and Rito sold 3353 (9302 sqm) and registered the same.
only the portions adjudicated to and owned by Iluminado constructed his house on a portion of Lot
them. However, they did not present any public No. 3353. He and his family, including his children,
document on the allocation among her heirs, forthwith resided in said house.

16 | P a g e

In 1979, respondent Hular had his house constructed In this case, the respondent alone filed the
near the trail (road) on Lot No. 3347, which, complaint, claiming sole ownership over the subject
however, occupied a big portion of Lot No. 3353. property and praying that he be declared the sole
owner thereof. There is no proof that the other co-
Iluminado died intestate. His widow and their owners had waived their rights over the subject
children continued residing in the property, while property or conveyed the same to the respondent or
petitioner Reynaldo Baloloy, one of Iluminados such co-owners were aware of the case in the trial
children, later constructed his house near that of his court. The trial court rendered judgment declaring
deceased father. the respondent as the sole owner of the property
and entitled to its possession, to the prejudice of the
When Astrologo died, he was survived by his latters siblings. Patently then, the decision of the
children, Jose, Romeo, Anacleto, Elena, Leo, Teresita, trial court is erroneous.
and the respondent, among others, who continued
to reside in their house. Under Section 7, Rule 3 of the Rules of Court, the
respondent was mandated to implead his siblings,
Sometime in l991 the respondent had Lot No. 3353 being co-owners of the property, as parties. The
surveyed and discovered that the residential area respondent failed to comply with the rule. It must,
deeded by Lagata to Astrologo Hular had an area of likewise, be stressed that the Republic of the
1,405 square meters, instead of 287 square meters Philippines is also an indispensable party as
only. defendant because the respondent sought the
nullification of OCT No. P-16540 which was issued
Respondent Alfredo Hular filed a complaint for based on Free Patent No. 384019. Unless the State
quieting of title of real property against the is impleaded as party-defendant, any decision of
children and heirs of Iluminado Baloloy. He prayed the Court would not be binding on it. It has been
among others that he be declared the absolute held that the absence of an indispensable party in a
owner of the property in question. case renders ineffective all the proceedings
subsequent to the filing of the complaint including
Issue: Whether all the indispensable parties had the judgment. The absence of the respondents
been impleaded by the respondent in the trial court siblings, as parties, rendered all proceedings
subsequent to the filing thereof, including the
Held: No, Under Article 487 of the New Civil Code, judgment of the court, ineffective for want of
any of the co-owners may bring an action in authority to act, not only as to the absent parties
ejectment. This article covers all kinds of actions for but even as to those present.
the recovery of possession, including an accion
publiciana and a reinvidicatory action.
A co-owner may bring such an action without the TTY B. LACBAYAN v. BAYANI S. SAMOY
necessity of joining all the other co-owners as co-
plaintiffs because the suit is deemed to be Facts: Petitioner and respondent met each other
instituted for the benefit of all. Any judgment of through a common friend sometime in 1978. Despite
the court in favor of the co-owner will benefit the respondent being already married, their relationship
others but if such judgment is adverse, the same developed. During their illicit relationship, petitioner
cannot prejudice the rights of the unimpleaded co- and respondent, together with three more
owners. incorporators, were able to establish a manpower
services company. Five parcels of land were also
If the action is for the benefit of the plaintiff alone acquired during the said period and were registered
who claims to be the sole owner and entitled to the in petitioner and respondents names, ostensibly as
possession thereof, the action will not prosper husband and wife.
unless he impleads the other co-owners who are
indispensable parties. Eventually, however, their relationship turned sour
and they decided to part ways sometime in 1991.In
1998, both parties agreed to divide the said

17 | P a g e

properties and terminate their business partnership This second stage may well also deal with the
by executing a Partition Agreement. Initially, rendition of the accounting itself and its approval by
respondent agreed to petitioners proposal that the the court after the parties have been accorded
properties in Malvar St. and Don Enrique Heights be opportunity to be heard thereon, and an award for
assigned to the latter, while the ownership over the the recovery by the party or parties thereto entitled
three other properties will go to respondent. of their just share in the rents and profits of the real
However, when petitioner wanted additional estate in question
demands to be included in the partition agreement,
respondent refused. Feeling aggrieved, petitioner Until and unless this issue of co-ownership is
filed a complaint for judicial partition of the said definitely and finally resolved, it would be
properties before the RTC in Quezon City on May 31, premature to effect a partition of the disputed
1999. properties. More importantly, the complaint will not
even lie if the claimant, or petitioner in this case,
On February 10, 2000, the trial court rendered a does not even have any rightful interest over the
decision dismissing the complaint for lack of merit. subject properties.
Aggrieved, petitioner elevated the matter to the CA
asserting that she is the pro indiviso owner of one- Placing a parcel of land under the mantle of the
half of the properties in dispute. Torrens system does not mean that ownership
thereof can no longer be disputed.
Petitioner contended that it is improper to thresh
out the issue on ownership in an action for partition. Ownership is different from a certificate of title, the
Her appeal was denied. latter only serving as the best proof of ownership
over a piece of land. The certificate cannot always be
Issue: Whether or not partition may exist between considered as conclusive evidence of ownership. In
the parties. fact, mere issuance of the certificate of title in the
name of any person does not foreclose the
Held: No. The existence of co-ownership is possibility that the real property may be under co-
necessary in the resolution of an action for partition. ownership with persons not named in the certificate,
Thus: or that the registrant may only be a trustee, or that
other parties may have acquired interest over the
The first phase of a partition and/or accounting suit property subsequent to the issuance of the
is taken up with the determination of whether or not certificate of title. Needless to say, registration does
a co-ownership in fact exists, and a partition is not vest ownership over a property, but may be the
proper (i.e., not otherwise legally proscribed) and best evidence thereof.
may be made by voluntary agreement of all the
parties interested in the property.

This phase may end with a declaration that plaintiff CRUZ V CATAPANG
is not entitled to have a partition either because a
co-ownership does not exist, or partition is legally
prohibited. It may end, on the other hand, with an Facts: Petitioners Leonor Cruz, Luz Cruz and Norma
adjudgment that a co-ownership does in truth exist, Maligaya are the co-owners of a parcel of land
partition is proper in the premises and an covering an area of 1,435 square meters located at
accounting of rents and profits received by the Barangay Mahabang Ludlod, Taal, Batangas.
defendant from the real estate in question is in Sometime in 1992, Teofila Catapang, with the
order. consent of Norma Maligaya as one of the
aforementioned co-owners, built a house on a lot
The second phase commences when it appears that adjacent to the subject parcel of land. The house
the parties are unable to agree upon the partition built by Catapang intruded on a portion of the co-
directed by the court. In that event, partition shall owned property. In September 1995, Cruz learned
be done for the parties by the court with the about the intrusion and made several demands for
assistance of not more than three (3) Catapang to demolish and vacate the part of the
commissioners. structure encroaching upon their property. However,

18 | P a g e

Catapang refused and disregarded the demands of act of strict dominion or ownership and any
Cruz. Cruz then filed a complaint for forcible entry encumbrance or disposition has been held implicitly to
against Catapang before the MCTC of Taal, Batangas. be an act of alteration. The construction of a house on
The MCTC decided in favor of Cruz, ruling that the co-owned property is an act of
consent of only one of the co-owners is not dominion. Therefore, it is an alteration falling under
sufficient to justify defendants construction of the Article 491 of the Civil Code. There being no consent
house and possession of the portion of the lot in from all co-owners, respondent had no right to
question. On appeal, the RTC affirmed the decision construct her house on the co-owned property.
of the MCTC. Catapang filed a petition for review
with the Court of Appeals, which reversed the RTCs
decision and ruled in favor of her. The Court of SANCHEZ V CA
Appeals held that there is no cause of action for
Facts: Lilia Sanchez, petitioner, constructed a house
forcible entry in this case because respondents on a 76-square meter lot owned by her parents-in-
entry into the property, considering the consent law with the following co-owners: Eliseo Sanchez
given by co-owner Norma Maligaya, cannot be
married to Celia Sanchez, Marilyn Sanchez married
characterized as one made through strategy or
to Nicanor Montalban, Lilian Sanchez, widow, Nenita
stealth which gives rise to a cause of action for Sanchez, single, Susana Sanchez married to
forcible entry. Thus, the case went to the Supreme
Fernando Ramos, and Felipe Sanchez.
On 20 February 1995, the lot was registered under
Issue: Whether or not the consent of one co-owner TCT No. 289216 in the name of private respondent
will warrant the dismissal of a forcible entry case Virginia Teria by virtue of a Deed of Absolute Sale
filed by another co-owner against the person who supposed to have been executed by all six (6) co-
was given the consent to construct a house on the owners in her favor. Petitioner claimed that she did
co-owned property? not affix her signature on the document and
subsequently refused to vacate the lot, thus
Held: No. We have held that a co-owner cannot prompting private respondent Virginia Teria to file
devote common property to his or her exclusive use an action for recovery of possession of the aforesaid
to the prejudice of the co-ownership. In our view, a lot with the Metropolitan Trial Court (MeTC) of
co-owner cannot give valid consent to another to Caloocan City sometime in September
build a house on the co-owned property, which is an
act tantamount to devoting the property to his or On 12 February 1998, the MeTC-Br. 49 of Caloocan
her exclusive use. City ruled in favor of private respondent declaring
that the sale was valid only to the extent of 5/6 of
the lot and the other 1/6 remaining as the property
Article 486 states each co-owner may use the thing
of petitioner, on account of her signature in
owned in common provided he does so in
the Deed of Absolute Sale having been established as
accordance with the purpose for which it is intended
a forgery.
and in such a way as not to injure the interest of the
co-ownership or prevent the other co-owners from Petitioner then elevated her appeal to the Regional
using it according to their rights. Giving consent to a Trial Court of Caloocan City, the trial court affirmed
third person to construct a house on the co-owned the 27 July 1998 decision of the MeTC.
property will injure the interest of the co-ownership
and prevent other co-owners from using the Thereafter the MeTC issued an order for the
property in accordance with their rights. issuance of a writ of execution in favor of private
Virginia Teria, buyer of the property. On 4 November
Under Article 491, none of the co-owners shall, without 1999 or a year later, a Notice to Vacate was served
the consent of the others, make alterations in the thing by the sheriff upon petitioner who however refused
owned in common. It necessarily follows that none of to heed the Notice.
the co-owners can, without the consent of the other
co-owners, validly consent to the making of an
alteration by another person, such as respondent, in
the thing owned in common. Alterations include any

19 | P a g e

On 28 April 1999 private respondent started Article 493 of the Civil Code gives the owner of an
demolishing petitioners house without any special undivided interest in the property the right to freely
permit of demolition from the court. sell and dispose of it, i.e., his undivided interest. He
may validly lease his undivided interest to a third
Due to the demolition of her house which continued party independently of the other co-owners.
until 24 May 1999 petitioner was forced to inhabit
the portion of the premises that used to serve as the But he has no right to sell or alienate a concrete,
houses toilet and laundry area. specific or determinate part of the thing owned in
common because his right over the thing is
On 29 October 1999 petitioner filed her Petition for represented by a quota or ideal portion without
Relief from Judgment with the RTC on the ground any physical adjudication.
that she was not bound by the inaction of her
counsel who failed to submit petitioners appeal Although assigned an aliquot but abstract part of the
memorandum. property, the metes and bounds of petitioners lot
has not been designated. As she was not a party to
Issue: Whether or not the petitioner may redeem the Deed of Absolute Sale voluntarily entered into by
her 1/6 aliquot interest on the land. the other co-owners, her right to 1/6 of the property
must be respected. Partition needs to be effected
Held: Yes, Co-ownership; characteristics to protect her right to her definite share and
determine the boundaries of her property. Such
partition must be done without prejudice to the
The characteristics of co-ownership are:
rights of private respondent Virginia Teria as buyer
of the 5/6 portion of the lot under dispute. Although
(a) plurality of subjects, who are the co-owners,
assigned an aliquot but abstract part of the property,
the metes and bounds of petitioners lot has not
(b) unity of or material indivision, which means that been designated.
there is a single object which is not materially
divided, and which is the element which binds the WHEREFORE, the Petition is GRANTED.
subjects, and,
The Deed of Absolute Sale by the other co-owners to
Virginia Teria shall be RESPECTED insofar as the
(c) the recognition of ideal shares, which determines other undivided 5/6 portion of the property is
the rights and obligations of the co-owners. concerned.

Co-ownership; relationship
In co-ownership, the relationship of such co-owner
to the other co-owners is fiduciary in character and
attribute. Whether established by law or by Facts: Agustin Dizon died intestate leaving behind his
agreement of the co-owners, the property or thing five children Eduardo, Gaudencio, Salud, Valenta and
held pro-indiviso is impressed with a fiducial nature Natividad as surviving heirs. Among the properties
so that each co-owner becomes a trustee for the left by the decedent was a parcel of land with an
benefit of his co-owners and he may not do any act area of 2,188 sqm covered by OCT 10384.
prejudicial to the interest of his co-owners.
Eduardo sold his hereditary rights to his sister Salud
Thus, the legal effect of an agreement to preserve Dizon Salamat. The sale was evidenced by a private
the properties in co-ownership is to create an document bearing the signatures of his sisters
express trust among the heirs as co-owners of the Valenta and Natividad as witnesses.
properties. Co-ownership is a form of trust and every
Gaudencio likewise sold his hereditary rights to his
co-owner is a trustee for the others.
sister Salud. The sale was evidenced by a notarized
document bearing the signature of Eduardo Dizon
and a certain Angela Ramos as witnesses.

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(Basta halos lahat binenta kay Salud) (2) that such positive acts or repudiation have been
made known to the cestui que trust or other co-
(Ngayon, yung mga petitioner gusto na i-partition, owners and
kaso si Natividad nag inarte, sakanya daw yung lahat
ng lupa dahil ipinamana daw sa kanya yun ni Tatay (3) that the evidence thereon must be clear and
nilang si Agustin Dizon orally, which is not tenable convincing. Nothing is present in the case.
kasi ang donation dapat naka public instrument.)
As regards the improvements introduced by the
Petitioner instituted an action for compulsory respondent on the questioned lot, the parties should
judicial partition of real properties registered in the be guided by Article 500 of the Civil Code which
name of Agustin Dizon with the RTC. The action was states that: Upon partition, there shall be a mutual
prompted by the refusal of herein respondent accounting for the benefits received and
Natividad Dizon Tamayo to agree to the formal reimbursements for expenses made.
distribution of the properties of deceased Agustin
among his heirs. Respondents refusal stemmed Art. 500. Upon partition, there shall be a mutual
from her desire to keep for herself the parcel of land accounting for benefi ts received and
covered by OCT 10384 where she presently resides, reimbursements for expenses made. Likewise, each
claiming that her father donated it to her in 1936 co-owner shall pay for damages caused by reason of
with the conformity of the other heirs. The subject his negligence or fraud.
property is also declared for taxation purposes under
Tax Declaration No. 10376 in the name of
The respondent further contends that a void
donation may be the basis of ownership which may
Facts: Dominica and Paciencia filed a case against
ripen into title by prescription.
the heirs Flores for the declaration of nullity of
Issue: WON the respondent may acquire the co- documents, ownership with damages and
owned property by adverse possession? preliminary injunction before the Regional Trial
Court (RTC) of Aklan, on the grounds that the
Held: No , it is well settled that possession, to property in their possession should be partitioned in
constitute the foundation of a prescriptive right, favor of the heirs of Emilio Restar as co-owners of
must be adverse and under a claim of title. The the same.
Respondent was never in adverse and continous
possession of the property. It is undeniable that However Flores heirs contended that under the new
petitioners and respondent, being heirs of the Tax Declaration in 1945, Flores caused the transfer
deceased, are co-owners of the properties left by of parcels of rice lands situated in Aklan to his, and
the latter. A co-ownership is a form of a trust, with that an evidence proved that as far back as 1959,
each owner being a trustee for each other and Flores Restar adjudicated unto himself the whole
possession of a co-owner shall not be regarded as land in question as his share from his father by
adverse to other co-owners but in fact is beneficial means of a joint affidavit which he executed with
to them. one Helen Restar, and he requested the Provincial
Treasurer/Assessor to have the land declared in his
The elements in order that a co-owners possession name. A document showing transfer of Tax
may be deemed adverse to the cestui que trust or Declaration from Emilio Restar to Flores Restar
the co-owner are: clearly provides that the land was declared in the
name of Flores Restar since 1960 and such would be
(1) that he has performed unequivocal acts of a concrete act of repudiation made by Flores of the
repudiation amounting to ouster cestui que trust or co-ownership over the land in question and
other co-owners therefore effected a repudiation of co-ownership.

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Issue: Whether or not Flores had validly repudiated thirty years in accordance with Article 1137 of the
the co-ownership and acquired the land co-owned New Civil Code.
by extra ordinary prescription?
The trial courts finding and conclusion that Flores
Held: Yes, heirs of flores/Flores had validly and his heirs had for more than 38 years possessed
repudiated the co-ownership and acquire the land the land in open, adverse and continuous possession
through extraordinary prescription. in the concept of owner which length of
possession had never been questioned, rebutted or
The following acts of Flores show possession adverse disputed by any of respondents, being thus duly
to his co-heirs: supported by substantial evidence, he and his heirs
have become owner of the lot by extraordinary
the cancellation of the tax declaration prescription. It is unfortunate that respondents slept
certificate in the name of Restar and on their rights. Dura lex sed lex.
securing another in his name;

the execution of a Joint Affidavit stating

that he is the owner and possessor thereof
to the exclusion of respondents;

payment of real estate tax and irrigation

fees without respondents having ever
contributed any share therein;

and continued enjoyment of the property

and its produce to the exclusion of

And that Flores adverse possession was

continued by his heirs.

In the case at bar, when Emilio Restar died in 1935,

his eight children became pro indiviso co-owners of
the lot by intestate succession. Respondents
(Dolores) never possessed the lot, however, much
less asserted their claim thereto until January 21,
1999 when they filed the complaint for partition
subject of the present petition.

On the other hand, Flores took possession of the lot

after Restars death and exercised acts of dominion
thereon tilling and cultivating the land, introducing
improvements, and enjoying the produce thereof.

The statutory period of extra ordinary prescription

commenced not in 1935 but in 1960 when Flores,
who had neither title nor good faith, secured a tax
declaration in his name and may, therefore, be said
to have adversely claimed ownership of the lot.
And respondents were also deemed to have been
on said date become aware of the adverse claim.

Flores possession thus ripened into ownership

through acquisitive prescription after the lapse of

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POSSESSION of which he may not be deprived without due

hearing. He may have other valid defenses to resist
Possession is the material occupation of a thing or
surrender of possession. Hence, a judgment for
the exercise of a right, or by the fact that it is subject
ownership does NOT necessarily include possession
to the action of our will, or by the proper acts and
as a necessary incident.
legal formalities established for acquiring such right.
This is moreover true only if there is the possibility
The holding or control of a thing (this is possession
that the actual possessor has some rights which
of property); or the exercise of a right. (this is only
must be respected and defined. Where the actual
quasi-possession since a right is incorporeal.)
possessor has no valid right over the property
enforceable even against the owner thereof, the
Is Possession a Fact or a Right?
surrender of the possession to the adjudged owner
It is really a fact since it exists; but from the moment
should be considered included in the judgment.
it exists, certain consequences follow, thus making
possession also a right.
Viewpoints of Possession Requisites or Elements of Possession
1. Right to possession (jus possidendi) This is a
right or incident of ownership. 1. There must be a holding or control; occupancy, or
Example: I own a house; therefore I am entitled to taking or apprehension of a thing or a right. The
possess it. holding may be actual or constructive.
2. Right of possession (jus possessionis) This is an
independent right of itself, independent of 2. There must be a deliberate intention to possess
ownership. (animus possidendi). This is a state of the mind.
Example: I am renting a house from X. Although I am
not the owner, still by virtue of the lease agreement, 3. The possession must be by virtue of ones own
I am entitled to possess the house for the period of right. This may be because he is an owner or
the lease. because of a right derived from the owner such as
that of a tenant.
Degrees of Possession
1. Mere holding or having, without any right Holding or detention may be either actual or
whatsoever. constructive occupation.
Example: possession by a thief.
2. Possession with a juridical title, but not that of an Constructive Possession
owner. (juridical possession) Hence, if a person assumes control over a big tract of
Example: that of a lessee, pledgee, depositary. land although he actually possesses only one-fourth
3. Possession with a just title, but not from the true of it, he is said to be in constructive possession of
owner. (real possessory right) the rest. Possession in the eyes of the law does not
Example: A in good faith buys an automobile from B mean that a man has to have his feet on every
who delivers same to A, and who merely pretended square meter of ground before it can be said that he
to be the owner. is in possession. It is, however, essential in
4. Possession with a title of dominium, with just title constructive possession that the property is not in
from the owner the adverse possession of another.
Example: Possession that springs from ownership
Ownership is Different from Possession
Art. 524. Possession may be exercised in ones own
Ownership is different from possession. A person
name or in that of another
may be declared the owner, but he may not be
Names Under Which Possession May Be Exercised
entitled to possession.
1. ones own name
The possession (in the concept of holder) may be in
2. name of another
the hands of another, such as a lessee or a tenant. A
person may have introduced improvements thereon

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possession of hereditary property is deemed
I may possess a piece of land myself or thru my
transmitted to the heir without interruption, and
agent. Here if I possess the land myself, this is
from the moment of the death of the decedent, in
possession in ones own name; on the other hand,
case the inheritance is accepted.
the agent possesses not in his own name but in that
One who validly renounces an inheritance is deemed
of another.
never to have possessed the same. (Art. 533).
the concept of owner has in his favor the legal
Art. 558. Acts relating to possession, executed or presumption that he possesses with just title, and he
agreed to by one who possesses a thing belonging to cannot be obliged to show or prove it. (Art. 541).
another as a mere holder to enjoy or keep it, in any (e) NON-INTERRUPTION OF POSSESSION OF
character, do not bind or prejudice the owner, PROPERTY UNJUSTLY LOST BUT LEGALLY
unless he gave said holder express authority to do RECOVERED One who recovers, according to law,
such acts, or ratifies them subsequently. possession unjustly lost, shall be deemed for all
purposes which may redound to his benefit, to have
Possession in Anothers Name enjoyed it without interruption. (Art. 561).
(a) Voluntary as when an agent possesses for the (f) POSSESSION DURING INTERVENING PERIOD
principal; by virtue of agreement. It is presumed, that the present possessor who was
(b) Necessary as when a mother possesses for a also the possessor at previous time, has continued to
child still in the maternal womb. be in possession during the intervening time, unless
NOTE: Here the mother does not possess the child; there is proof to the contrary. (Art. 1138[2]).
(c) Unauthorized This will become the principals PROPERTY The possession of real property
possession only after there has been a ratification presumes that of the movables therein, so long as it
without prejudice to the effects of negotiorum is not shown or proved that they should be
gestio. excluded. (Art. 542).
NOTE: Even a servant, guard, or laborer may possess (h) EXCLUSIVE POSSESSION OF COMMON
in anothers name PROPERTY Each one of the participants of a
thing possessed in common shall be deemed to have
CLASSES OF POSSESSION exclusively possessed the part which may be allotted
to him upon the division thereof, for the entire
Art. 525. The possession of things or rights may be
period during which the co-possession lasted. (Art.
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.
Concept of an Owner
1. In ones own name or in that of another. A possessor in the concept of an owner, is whether
2. In the concept of owner and in the concept of in good faith or bad faith, acts and claims to be an
holder. owner and is considered by the opinion of others as
3. In good faith or in bad faith. owner.
Concept of Holder
PRESUMPTIONS IN FAVOR OF POSSESSION He recognizes another to be the owner of the thing
he possessed. Like a tenant, usufructuary, depositary
or bailee in commodatum.
(a) GOOD FAITH Good faith is always
presumed. (Art. 527).
(whether in good faith or bad faith It is Concept of an Owner
presumed that possession continues to be enjoyed 1. He may eventually become the owner by
in the same character in which it was acquired, until prescription. (Art 540)
the contrary is proved. (Art. 529).

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2. He has in his favor the legal presumption that he Reason: prescription presupposes prior ownership in
possesses with a just title and he cannot be obliged another. However, said res nullius may be
to show or prove it. (Art 541) acquired by occupation.
3. Possessor is entitled to fruits Possessor is believed
by other people as owner regardless of good faith or B. HOW ACQUIRED
bad faith.
Art. 531. Possession is acquired by the material
4. Possession can serve as a title for acquiring
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
5. Possessor is believed by other people as owner
by the proper acts and legal formalities established
regardless of good faith or bad faith.
for acquiring such right.
Art. 540. Only the possession acquired and enjoyed
How Is Possession Acquired
in the concept of owner can serve as a title for
1. By material occupation (detention) of a thing or
acquiring dominion.
the exercise of a right (quasi-possession). This also
includes constitutum possessorium or traditio brevi
Art. 541. A possessor in the concept of owner has in
his favor the legal presumption that he possesses
2. By subjection to our will, this includes traditio
with a just title and he cannot be obliged to show or
longa manu ; by mere agreement or by the delivery
prove it.
of keys; traditio simbolica clearly, this does not
require actual physical detention or seizure.
Concept of Holder
3. By constructive possession or proper acts and
1. Possessor cannot acquire property by acquisitive
legal formalities such as succession, donation,
prescription because the possessor in a concept of a
execution of public instruments; or thru the
holder recognizes the right of ownership in others
possession by a sheriff by virtue of a court order.
hence there can be no adverse claim which can ripen
to ownership through acquisitive prescription.
Constitutum possessorium - exists when a person
2. Possessor is not qualified to become a possessor-
who possessed property as an owner, now possesses
builder in good faith.
it in some other capacity, as that of lessee or
3. Possessor has the right to safeguard the thing.
4. Possessor has the right to use the thing.
Traditio brevi manu - the opposite of constitutum
5. Possessor has the lease right.
possessorium, this exists when a person who
possessed property not as an owner (like a lessee),
now possesses it as owner.
Art. 530. Only things and rights which are Traditio longa manu (delivery by the long hand) -
susceptible of being appropriated may be the object delivery by consent or mere pointing.
of possession.
Essential Requirements for Possession
Only those things and rights which are susceptible of 1. Corpus - the thing physically detained.
being appropriated. 2. Animus - intent to possess, may be proved either
expressly or impliedly.
The following cannot be appropriated and hence
1. Property of public dominion, POSSESS IT
2. Res communes,
1. personal
3. Easements (if discontinuous or non-apparent),
2. thru authorized person (agent or legal
4. Things specifically prohibited by law.
3. thru unauthorized person but only if
Res Nullius
subsequently ratified.
Res nullius (abandoned or ownerless property) may
be possessed, but cannot be acquired by
Essential Requisites
1. Personal acquisition

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- intent to possess b. The heir validly renounces the inheritance he will

- capacity to possess be deemed never to have possessed the same.Even
- object must be capable of being possessed if he is in actual physical possession of the property.

2. Thru an authorized person It should be understood however that the estate of

- intent to possess for principal (not for agent) the deceased has more assets than liabilities (the
- authority or capacity to possess (for another) inheritance thus consisting of the remaining estate,
- principal has intent and capacity to possess otherwise there will be no property to be possessed.

3.Thru an unauthorized person (as in negotiorum Consequences of the Possession of the Decedent
- intent to possess for another (the principal) 1.Bad Faith: personal and intransmissible
- capacity of principal to possess
- ratification by principal, the possession although One in possession of property knowing that his title
cured only by the express or implied ratification is defective. The existence of bad faith on the part of
should be regarded as having a retroactive effect. one possessor does not, however, prejudice his
NOTE: If the stranger (gestor) had possessed it in his
own name, it is he who had possession, and not the The rule in this jurisdiction is that only personal
so-called principal. knowledge of the fl aw in ones title or mode of
acquisition can make him a possessor in bad faith,
Negotiorum Gestio for bad faith is not transmissible from one person to
another, not even to an heir.
Art. 2144. Whoever voluntarily takes charge of the
agency or management of the business or property 2. Good Faith:
of another without any power from the latter, is
obliged to continue the same until the termination Effects of possession in good faith shall not benefit
of the affair and its incidents, or to require the the heir except from the date of death of the
person concerned to substitute him, if the owner is decedent
in a position to do so. This juridical relation does not b. Minor and Incapacitated Person Applicable only
arise in either of these instances: to acquisition of possession by minors and
(a) When the property or business is not neglected incapacitated person over things but not over rights.
or abandoned; Capacity to Acquire: They need the assistance of
(b) If in fact the manager has been tacitly authorized their legal representatives in order to exercise the
by the owner. rights which from the possession arise in their favor.


a. By Succession; Mortis Causa a. Possession thru Force or Intimidation
- Even if a possessor is physically ousted from the
Succession is one of the juridical acts sufficient to property through the use of force or violence, he is
transfer possession without need of physical or still deemed the legal possessor in the eyes of the
material holding of the property subject matter law.
thereof. - Even if the one seeking recovery of possession is
the owner of the property himself.
If possession of property is effected by way of Invoke the aid of the competent court,
succession, whether testate or intestate; when one believes he has the right to
a. The heir accepts the inheritance; such possession deprive another of the holding of the thing,
is deemed transmitted without interruption from if the latter refuse to deliver the same upon
the moment of the death of the decedent. demand.
This rule will apply even if such heir is not in actual b. Possession by Tolerance
physical possession of the property. Toleration

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Defined as the act or practice of permitting or Exceptions to General Rule:

enduring something not wholly approved of. (a) co-possessors (since here, there is no conflict of
With permission, the occupier, no matter how long interest, both of them acting as co-owners, as in the
he may remain, can never acquire ownership, case of property owned or possessed in common)
because he never had possession. (b) possession in different concepts or different
Abandonment degrees
If an owner abandons, as when within the proper Example: Both owner and tenant are possessors as a
period for prescription, he brings no action, the fact at the same time; the first, in the concept of
possession of another will ripen into ownership. owner; the second, in the concept of holder; other
c. Clandestine Possession examples: principal and agent; depositor and
A secret possession or possession by stealth. For depositary; owner and administrator.
clandestine possession to affect the owners
possession, the possession must also be unknown to Rules or Criteria to be Used in Case of Conflict or
the owner. Dispute Regarding Possession
If it is secret to many, but known to the owner, his a. present possessor shall be preferred
possession is affected. b. if both are present, the one longer in possession
There is a presumption however that when c. if both began to possess at the same time, the
possession is clandestine, it is also unknown to the one who present (or has) a title
owner. d. if both present a title, the Court will determine.
d. Possession by Violence (Meantime, the thing shall be judicially deposited.)
Force may be proved expressly or by implication.
The act of entering into the premises and excluding Preference of Ownership (not Possession)
the lawful possessor there from necessarily implies Art. 1544 applies to preference of OWNERSHIP in
the exertion of force over the property. case of DOUBLE SALE (Art. 1544) or a DOUBLE
DONATION. (Art. 744).
The force may be:
1) actual or merely threatened; (a) MOVABLE property Preference in ownership is
2) done by possessor himself or by his agent; given to the person who first possessed it in good
3) done against the owner or against any other faith. (Art. 1544, par.1).
possessor or against the owners representative,
such as a capataz (b) IMMOVABLE property
4) done to oust possessor; or if occupied during the
latters absence, done to prevent his getting back Preference in ownership is given
the premises. 1) to the first who registered his right in good faith in
the Registry of Property
NO POSSESSION ACQUIRED 2) if there was no registration, to the person who
first possessed in good faith.
1. The intruder does not acquire any right to
3) if there was no possession, to the person who
presents the oldest title, provided that the title had
2. The legal possessor, even if physically ousted, is
been acquired in good faith.
still the possessor and therefore
still entitled to the benefi ts of prescription;
still entitled to the fruits; C. EFFECTS OF POSSESSION
still entitled as possessor for all purposes
favorable to his possession. Art. 539. Every possessor has a right to be respected
3. The intruder cannot acquire the property by in his possession; and should he be disturbed therein
prescription. he shall be protected in or restored to said
possession by the means established by the laws and
POSSESSION AS A FACT the Rules of Court.

General Rule Regarding Possession as a Fact A possessor deprived of his possession through
Possession as a fact cannot be recognized at the forcible entry may within ten days from the fi ling of
same time in two different personalities.

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the complaint present a motion to secure from the 2. Requirements for transmission were not complied
competent court, in the action for forcible entry, a with
writ of preliminary mandatory injunction to restore
3. Mistake in the identity of the person
him in his possession. The court shall decide the
motion within thirty (30) days from the filing 4. Property was not really res nullius
iii. Possessor is ignorant of the vice or defects and
Art. 542. The possession of real property presumes must have an honest belief that the thing belongs to
that of the movables therein, so long as it is not him. Otherwise, its bad faith
shown or proved that they should be excluded.
a. In Good Faith; Right to the Fruits
Art. 543. Each one of the participants of a thing
1. Fruits already received
possessed in common shall be deemed to have
Art 544. A possessor in good faith is entitled to the
exclusively possessed the part which may be allotted
fruits received before the possession is legally
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
Natural and industrial fruits are considered received
of a thing possessed in common shall be to the
from the time they are gathered or severed.
prejudice of all the possessors. However, in case of
civil interruption, the Rules of Court shall apply.
Civil fruits are deemed to accrue daily and belong to
the possessor in good faith in that proportion.
- Entitled to all the fruits until possession is
Art. 526. He is deemed a possessor in good faith legally interrupted (i.e. before summons)
who is not aware that there exists in his title or
mode of acquisition any flaw which invalidates it. 2. Fruits still pending
xxx Art. 545. If at the time the good faith ceases, there
should be any natural or industrial fruits, the
Mistake upon a doubtful or difficult question of law possessor shall have a right to a part of the expenses
may be the basis of good faith. of cultivation, and to a part of the net harvest, both
in proportion to the time of the possession.
Art. 527. Good faith is always presumed, and upon
him who alleges bad faith on the part of a possessor The charges shall be divided on the same basis by
rests the burden of proof. the two possessors.

Art. 528. Possession acquired in good faith does not The owner of the thing may, should he so desire,
lose this character except in the case and from the give the possessor in good faith the right to finish
moment facts exist which show that the possessor is the cultivation and gathering of the growing fruits as
not unaware that he possesses the thing improperly an indemnity for his part of the expenses of
or wrongfully. cultivation and the net proceeds; the possessor in
good faith who for any reason whatever should
Requisites of Good Faith refuse to accept this concession, shall lose the right
i. Ostensible title or mode of acquisition to be indemnified in any other manner.
- If its not an ostensible title but a real title, then its
ownership. - Entitled to pro-rate the fruits already
ii. Vice or defect in the title growing when his possession is legally
- If there was no vice or defect in the title, then its interrupted
ownership. - For example, possessor planted crops. It
Examples of vice or defect in title takes the crops 4 months to grow. On the
beginning of the 4th month, summons is
1. Grantor was not the owner served. At the end of the 4th month, the
crops are harvested. Under Article 545, the

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possessor is entitled to of the crops since but he may remove the ornaments with which he
the possessor was in possession for 3 has embellished the principal thing if it suffers no
months. However, he also pays of the injury thereby, and if his successor in the possession
expenses. does not prefer to refund the amount expended.

b. In Good Faith; Right to be Reimbursed - The possessor in good faith is not entitled
to a refund for ornamental expenses.
1. As to necessary expenses - But he may remove the ornamental
Art. 546, par 1. Necessary expenses shall be improvements if they do not cause damage
refunded to every possessor; but only the possessor to the principal thing.
in good faith may retain the thing until he has been
reimbursed therefor. 2. POSSESSOR IN BAD FAITH
- The possessor in good faith is entitled to a
refund of necessary expenses. He is deemed a possessor in good faith who is aware
- The possessor in good faith may retain the that there exists in his title or mode of acquisition
thing until he is reimbursed for necessary any flaw which invalidates it.
Article 449. He who builds, plants or sows in bad
2. As to useful expenses faith on the land of another, loses what is built,
Art. 546, par 2. Useful expenses shall be refunded planted or sown without right to indemnity
only to the possessor in good faith with the same
a. In Bad Faith; Right to the fruits
right of retention, the person who has defeated him
in the possession having the option of refunding the 1. As to the fruits
amount of the expenses or of paying the increase in Art. 549. Par. 1 The possessor in bad faith shall
value which the thing may have acquired by reason reimburse the fruits received and those which the
thereof. legitimate possessor could have received, and shall
Art. 547. If the useful improvements can be removed have a right only to the expenses mentioned in
without damage to the principal thing, the possessor paragraph 1 of article 546 and in article 443.
in good faith may remove them, unless the person
who recovers the possession exercises the option - The possessor in bad faith shall reimburse the fruits
under paragraph 2 of the preceding article. receive and those which the legitimate possessor
could have received.
- The possessor in good faith is entitled to a
- The possessor in bad faith has a right of
refund of useful expenses.
reimbursement for necessary expenses for the
- The possessor in good faith may retain the
production, gathering and preservation of the fruits.
thing until he is reimbursed for useful
( Art. 546 par 1.)
- The other party has the option to - The person who receives the fruits has the
obligation to pay the expenses made by a third
1. Refund the amount of expenses; or
person (possessor in bad faith) in their production,
2. Pay the increase in value which the thing may
gathering and preservation. (Art. 443)
have acquired

If the useful improvements can be removed without b. In Bad Faith; Right to be Reimbursed
damaging the principal thing, the possessor in good
faith may remove them unless the other party wants
Art. 549. par. 2. The expenses incurred in
to keep the useful improvements. In which case, the
improvements for pure luxury or mere pleasure shall
other party has to exercise the two previous options.
not be refunded to the possessor in bad faith, but he
3. As to ornamental expenses may remove the objects for which such expenses
have been incurred, provided that the thing suffers
Art. 548. Expenses for pure luxury or mere pleasure no injury thereby, and that the lawful possessor does
shall not be refunded to the possessor in good faith;

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not prefer to retain them by paying the value they lost missed or misplaced.
may have at the time he enters into possession. unlawfully deprived taken by another
thru a crime such as theft, robbery, estafa.
1. As to the necessary expenses Under the Revised PenalCode, the object of
The possessor in bad faith is entitled to a refund of the crime must be restored even though it
necessary expenses. be found in the possession of a third person
who has acquired it by lawful means, saving
The possessor in bad faith has no right to retain the
to the latter his actionagainst the proper
thing until he is reimbursed for necessary expenses.
person who may be liable to him. (Art. 105,
par. 2, RPC).
2. As to useful expenses General Rule: A person who lost or has been
The possessor in bad faith is not entitled to a refund unlawfully deprived of the movable, may recover it
of useful expenses. from the person who has possession of the movable.
Unlawful deprivation extends to all instances where
3. As to ornamental expenses
there is no valid transmission (i.e. theft, robbery,
The possessor in bad faith is not entitled to a refund
of ornamental expenses
The possessor in bad faith is entitled to remove the
a. If the possessor obtained the movable in good
ornamental improves only if:
faith at a public sale, the owner cannot get it back
unless he reimburses the possessor.
-Removal can be accomplished without damaging
the principal thing and b. If the owner is estopped (Article 1505,par. 1)

- The lawful possessor does not prefer to retain the Art. 1505. Subject to the provisions of this Title,
ornamental improvements by paying the value where goods are sold by a person who is not the
thereof at the time he enters into possession. owner thereof, and who does not sell them under
authority or with the consent of the owner, the
D. LOSS OR UNLAWFUL DEPRIVATION OF A buyer acquires no better title to the goods than the
MOVABLE seller had, unless the owner of the goods is by his
Art. 559. The possession of movable property conduct precluded from denying the seller's
acquired in good faith is equivalent to a title. authority to sell. If the disposition is made under
Nevertheless, one who has lost any movable or has any factors act
been unlawfully deprived thereof, may recover it
from the person in possession of the same. Nothing in this Title, however, shall affect:
If the possessor of a movable lost or of which the
1. The provisions of any factors' act, recording laws,
owner has been unlawfully deprived, has acquired it
or any other provision of law enabling the apparent
in good faith at a public sale, the owner cannot
owner of goods to dispose of them as if he were the
obtain its return without reimbursing the price paid
true owner thereof;
2. The validity of any contract of sale under
The possession of movables acquired in statutory power of sale or under the order of a court
good faith is equivalent to title. of competent jurisdiction;
Equivalent to title means presumptive title
sufficient to serve as a basis for 3. Purchases made in a merchant's store, or in fairs,
prescription. or markets, in accordance with the Code of
Acquired in good faith the possessor is Commerce and special laws. (n)
of the belief that the person from whom
he received the thing was its owner and 1. Period to Recover
could transfer valid title thereto.
Art. 1140. Actions to recover movables shall
title the juridical act transferring or
prescribe eight years from the time the possession
conferring ownership; and not a document.
thereof is lost, unless the possessor has acquired the

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ownership by prescription for a less period, 1. Movables 8 years

according to Article 1132, and without prejudice to 2. Immovables 30 years
the provisions of Articles 559, 1505, and 1133.

Art. 1333. Movables possessed through a crime can 2. Finder of Lost Movable
never be acquired through prescription by the Art. 719. Whoever finds a movable, which is not
offender. treasure, must return it to its previous possessor.

1. In good Faith If the latter is unknown, the finder shall immediately

deposit it with the mayor of the city or municipality
As to prescription where the finding has taken place.

Art. 1132. Par 1. The ownership of movables The finding shall be publicly announced by the
prescribes through uninterrupted possession for four mayor for two consecutive weeks in the way he
years in good faith. deems best. If the movable cannot be kept without
xxx deterioration, or without expenses which
With regard to the right of the owner to recover considerably diminish its value, it shall be sold at
personal property lost or of which he has been public auction eight days after the publication.
illegally deprived, as well as with respect to
movables acquired in a public sale, fair, or market, or Six months from the publication having elapsed
from a merchant's store the provisions of articles without the owner having appeared, the thing
559 and 1505 of this Code shall be observed. found, or its value, shall be awarded to the finder.

Art. 1134. Ownership and other real rights over The finder and the owner shall be obliged, as the
immovable property are acquired by ordinary case may be, to reimburse the expenses.
prescription through possession of ten years.
Art. 720. If the owner should appear, in time, he
shall be obliged to pay, as a reward to the fi nder,
Prescriptive Period:
one-tenth of the sum or of the price of the thing
1. Movables 4 years
2. Immovables 10 years

3. Distinguished from voidable title

2. In Bad Faith
Art.1506. Where the seller of goods has a voidable
As to prescription title thereto, but his title has not been avoided at the
time of the sale, the buyer acquires a good title to
Art. 1132. Par 2. The ownership of personal property the goods, provided he buys them in good faith, for
also prescribes through uninterrupted possession for value, and without notice of the sellers defect of
eight years, without need of any other condition. title
With regard to the right of the owner to recover
personal property lost or of which he has been E. RIGHTS OF THE POSSESSOR
illegally deprived, as well as with respect to
Art. 550. The costs of litigation over the property
movables acquired in a public sale, fair, or market, or
shall be borne by every possessor.
from a merchant's store the provisions of articles
559 and 1505 of this Code shall be observed.
Art. 551. Improvements caused by nature or time
shall always inure to the benefit of the person who
Art. 1137. Ownership and other real rights over
has succeeded in recovering possession.
immovables also prescribe through uninterrupted
adverse possession thereof for thirty years, without
Art. 553. One who recovers possession shall not be
need of title or of good faith.
obliged to pay for improvements which have ceased
to exist at the time he takes possession of the thing.
Prescriptive Period

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Art. 554. A present possessor who shows his Possession may be lost
possession at some previous time, is presumed to
have held possession also during the intermediate 1. By abandonment
period, in the absence of proof to the contrary. Abandonment may either be:
a. Permanent-There is no need for the prescriptive
Art. 561. One who recovers, according to law, period to run.
possession unjustly lost, shall be deemed for all b. Temporary -Prescription will run. See Article 1125
purposes which may redound to his benefit, to have
enjoyed it without interruption. Abandonment is the voluntary renunciation of a
1. The abandoner must have been a possessor in the
Ways of Losing Possession
concept of owner (either an owner or mere
possessor may respectively abandon either
Thru the Possessors Voluntary Will and Intent
ownership or possession).
1. Abandonment
2. The abandoner must have the capacity to
2. Assignment (onerous or gratuitous conveyance)
renounce or to alienate (for abandonment is the
Against the Possessors Will
repudiation of a property right)
1. possession of another for more than one year.
3. There must be a physical relinquishment of the
2. final judgment in favor of another (with a better
thing or object.
4. There must be no more spes recuperandi
3. expropriation.
(expectation to recover) and no more animus
4.prescription in favor of another.
revertendi (intent to return or get back).
5. recovery or reivindication by the legitimate owner
or possessor
Art. 1125. Any express or tacit recognition which the
Because of the Object
possessor may make of the owner's right also
1. destruction or total loss of the thing
interrupts possession.
2. going out of commerce.
3. escaping from possessors control of wild animals.
2. By assignment made to another either by
onerous or gratuitous title (Article 555 (2))
Art. 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
3. By destruction or total loss of the thing, or it goes
not know their whereabouts.
out of commerce (Article 555 (3)) See Article 1189
(1), (2)
Art. 557. The possession of immovables and of real
rights is not deemed lost, or transferred for purposes
Art. 1189. When the conditions have been imposed
of prescription to the prejudice of third persons,
with the intention of suspending the efficacy of an
except in accordance with the provisions of the
obligation to give, the following rules shall be
Mortgage Law and the Land Registration Laws.
observed in case of the improvement, loss or
deterioration of the thing during the pendency of
Art. 555. A possessor may lose his possession:
the condition:
(1) By the abandonment of the thing;
(2) By an assignment made to another either by (1) If the thing is lost without the fault of the debtor,
onerous or gratuitous title; the obligation shall be extinguished;
(3) By the destruction or total loss of the thing, or
because it goes out of commerce; (2) If the thing is lost through the fault of the debtor,
(4) By the possession of another, subject to the he shall be obliged to pay damages; it is understood
provisions of Article 537, if the new possession has that the thing is lost when it perishes, or goes out of
lasted longer than one year. But the real right of commerce, or disappears in such a way that its
possession is not lost till after the lapse of ten years. existence is unknown or it cannot be recovered;

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4. By possession of another subject to the acted with fraudulent intent or negligence, after the
provisions of Art. 537, if the new possession has judicial summons.
lasted longer than 1 year. But the real right of
possession is not lost till after the lapse of 10 years A possessor in bad faith shall be liable for
(Article 555 (4)) deterioration or loss in every case, even if caused by
a fortuitous event.
The complaint for forcible entry must be filed within
1 year from the forcible entry. Rules Applicable
Accion publiciana must be filed after the lapse of 1 a. Possessor in GOOD FAITH
year from the forcible entry but before the lapse of
1. BEFORE receipt of judicial summons NOT
10 years.
In this case, possession is not really lost until the end 2. AFTER judicial summons
of the 10th year. a.loss or deterioration thru fortuitous event not
5. By accion reinvindicatoria b. thru fraudulent intent or negligence liable
b. Possessor in BAD FAITH
Art. 1120. Possession is interrupted for the purposes Whether before or after judicial summons, and
of prescription, naturally or civilly. whether due to fortuitous event or not, such
possessor is LIABLE.
Art. 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
Art. 1122. If the natural interruption is for only one
year or less, the time elapsed shall be counted in Facts: Martin Dolorico II an owner of a lot, named his
Uncle Martin Dolorico I as heir, thereafter, Dolorico I
favor of the prescription.
reliinquished his rights in favor of the defendants
Art. 1123. Civil interruption is produced by judicial Quirino Comintan and Eleuterio Zamora, his
summons to the possessor. grandson and son-in-law. Consequently, the
responents filed sales application to the Director of
Art. 1124. Judicial summons shall be deemed not to Lands on the said lot however Petitioner Ortiz filed
have been issued and shall not give rise to his protest alleging that he should be given
interruption: (1) If it should be void for lack of legal preference to purchase the lot inasmuch as he is the
solemnities; (2) If the plaintiff should desist from the actual occupant and has been in continuous
complaint or should allow the proceedings to lapse; possession of the same since 1931. Inspite of
(3) If the possessor should be absolved from the plaintiff's opposition, "Portion A" of the property
complaint. In all these cases, the period of the was sold at public auction wherein defendant
interruption shall be counted for the prescription. Comintan was the only bidder; investigation was
conducted on plaintiff's protest and it was found
6. By eminent domain that the plaintiff failed to participate in the public
auction, he is forever barred to claim the property;
Art. 560. Wild animals are possessed only while they that plaintiff filed a motion for reconsideration of
are under ones control; domesticated or tamed this decision which was denied by the Director of
animals are considered domestic or tame, if they Lands, finally, on appeal to the Secretary of
retain the habit of returning to the premises of the Agriculture and Natural Resources, the decision
possessor. rendered by the Regional Land Officer was affirmed
Liability in toto.
Art. 552. A possessor in good faith shall not be liable
for the deterioration or loss of the thing possessed, The respondents were declared as the successful
except in cases in which it is proved that he has bidders thereof as well as the owners, However, the

33 | P a g e

defendants Quirino Comintan and Eleuterio Zamora be reimbursed as ordered. This contention was
are ordered to reimburse jointly said plaintiff the untenable and the SC held that the tolls collected by
improvements he has introduced on the whole the plaintiff on an unimproved portion naturally
property in the amount of P13,632.00, the latter belong to the defendants, and therefore the Motion
having the right to retain the property until after he for Execution filed by the defendants to be
has been fully paid therefore, without interest since meritorious.
he enjoys the fruits of the property in question, with
prejudice and with costs again the plaintiff. The petitioner, again filed Motion for
Reconsideration of the aforesaid Order and Writ of
Two years after the decision, the respondents filed a Execution. He argued that since said judgment
petition to appoint a new as Receiver to collect tolls declared the petitioner a possessor in good faith, he
on a portion of their property used as a diversion is entitled to the payment of the value of the
road. This petition was granted and the receiver was improvements introduced by him on the whole
reappointed. Petitioner sought the annulment of this property, with right to retain the land until he has
Order with the Court of Appeals, but said Court ruled been fully paid such value. He likewise averred that
that its decision had already become final and that no payment for improvements has been made and,
the records of the case were to be remanded to the instead, a bond therefor had been filed by
trial court. petitioner filed a petition for certiorari, defendants (private respondents), which, according
however, the petition was dismissed by this Court on to petitioner, is not the payment envisaged in the
the ground of insufficient showing of grave abuse of decision which would entitle private respondents to
discretion. the possession of the property. In other words,
petitioner contends that so long as the aforesaid
The judgment having become final and executory amount of P13,632,00 decreed in the judgment
,respondents filed a motion for the execution of the representing the expenses for clearing the land and
same, which is to deliver to them the land subject of the value of the coconuts and fruit trees planted by
the decision in this case but allowing defendants to him remains unpaid, he can appropriate for his
file a bond in such amount as this Honorable Court exclusive benefit all the fruits which he may derive
may fix, in lieu of the P13,632.00 required to be paid from the property, without any obligation to apply
to plaintiff, conditioned that after the accounting of any portion thereof to the payment of the interest
the tools collected by plaintiff, there is still an and the principal of the debt.
amount due and payable to said plaintiff, then if
such amount is not paid on demand, including the Hence this case.
legal interests, said bond shall be held answerable.
Issue: Whether or not petitioner is still entitled to
The court ordered further that the plaintiff(Ortiz) to retain for his own exclusive benefit all the fruits of
render an accounting of the tolls he collected and the property, such as the tolls collected by him
deliver said tolls collected to the receiver and if amounting to about P25,000.00:
judgment is already executed, then to Quirino
Comintan and Eleuterio Zamora; Held : No. There is no question that a possessor in
good faith is entitled to the fruits received before
The records further disclosed plaintiff Bartolome the possession is legally interrupted. Possession in
Ortiz collected tolls on a portion of the propertv in good faith ceases or is legally interrupted from the
question wherein he has not introduced anv moment defects in the title are made known to the
improvement, upon this information, the plaintiff possessor, by extraneous evidence or by the filing of
contended that the accounting of the tolls an action in court by the true owner for the recovery
he(ortiz)collected during the periods above alluded of the property. Hence, all the fruits that the
to their damages of about P25,000.00 can more possessor may receive from the time he is
than offset their obligation of P13,362.00 in favor of summoned in court, or when he answers the
the plaintiff. However the plaintiff contended that complaint, must be delivered and paid by him to the
that whatever sums plaintiff may derive from the owner or lawful possessor. It permits the actual
property cannot be set off against what is due to him possessor to remain in possession while he has not
for the improvements he made, for which he has to been reimbursed by the person who defeated him in

34 | P a g e

the possession for those necessary expenses and Defendants averred that the road crossing the
useful improvements made by him on the thing Hacienda Toreno, over which plaintiffs claim the
possessed. right of passage, is the private property of
defendants. They have not refused to permit
Right of retention is accessory to a principal plaintiff to use the road but have required them to
obligation. Considering that the right of the pay toll for privilege of doing so. They also claimed
possessor to receive the fruits terminates when his for damages for the use of the road by plaintiffs.
good faith cease. Hence, plaintiff filed an action in CFI.
Therefore when the records further reveal that The CFI judge dismissed such action on the ground
earnest efforts have been made by private that the plaintiffs failed to establish the asserted
respondents to have the judgment executed in the right. It held that the road in question was a public
most practicable manner. They deposited in court highway over which the public had acquired a right
the amount of the judgment in the sum of of use by immemorial prescription. However, it is
P13,632.00 in cash, subject only to the accounting of not averred in the complaint that the road in
the tolls collected by the petitioner so that whatever question was used by the public. It is averred that it
is due from him may be set off with the amount of was used by the plaintiffs and their predecessors.
reimbursement. This is just and proper under the Hence, this petition.
circumstances and, under the law, compensation or
set off may take place, either totally or partially. Issues:
Considering that petitioner is the creditor with
respect to the judgment obligation and the debtor 1. Is the Nanca-Victorias road a public highway?
with respect to the tolls collected, Comintan being
the owner thereof, the trial court's order for an 2. Does petitioner acquired right of way
accounting and compensation. The petitioner cannot
3. Does the mere permissive use of the road ripen
appropriate for his own exclusive benefit the tolls
which he collected from the property retained by into title by prescription?
him. It was his duty under the law, after deducting
the necessary expenses for his administration, to
apply such amount collected to the payment of the 1. No. The court ruled that evidence presented does
interest, and the balance to the payment of the
not appear that the road in question is a public road
or way. The defendants are the owners of the
Hacienda Toreno under a Torrens Title, conferring to
them its absolute ownership. It is admitted that
there is no annotation on the certificate of title
Facts: Petitioners are owners of a group of haciendas regarding the road here in question, either as a
situated between the boundary of Hacienda Toreno public road or as a private way established by law.
and barrio of Nanca. The other plaintiffs are lessees
of part of the Hacienda Toreno. They alleged that for 2. No. Plaintiffs have failed to show that they have
more than 20 years, they and their predecessors in
acquired by prescription a private right of passage
interest have made used of the Nanca-Victoria road,
over the lands of defendants. The supreme court of
which crosses the Hacienda Toreno, openly, publicly,
and continuously, with the knowledge of the owners Spain has decided that under the law in force before
of the said hacienda, for the purpose of conveying the enactment of the Civil Code, the easement of
the products of their haciendas to the town of way was discontinous, and that while such an
Victoria. On November 15, 1912, defendants closed easement might be acquired by prescription, it must
the road in question at the point at which it crosses be used in good faith, in the belief of the existence
the Hacienda Toreno, and refuses to permit
of the right, and such user must have been
plaintiffs to continue using it.
continuous from time immemorial.

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3. No. Possession of real property is not affected by long line of criminal cases against him for estafa
acts of possessory character which are merely using this similar modus operandi. One vehicle was
tolerated by the possessor, or which are due to his recovered by Citiwide while the 1977 Isuzu Gemini
was transferred by Armando Suarez to third persons
license. This principle is applicable not only with
and was in the possession of one Jaime Ledesma at
respect to the prescription of the dominium as a the time plaintiff-appellant instituted this action for
whole, but to the prescription of right in rem. replevin. Ledesma claims he bought it in good faith
from Pedro Neyra.
The provision of article 1942 of the Civil Code to the
effect that acts which are merely tolerated produce Issue: Whether or not Citiwide was unlawfully
no effect with respect to possession is applicable as deprived of its property hence entitled to claim the
much to the prescription of real rights as to the same as the rightful owner.
prescription of the fee, it being a glaring and self-
evident error to affirm the contrary, as does the Held: No. RTC held defendant entitled for possession
of the car and a buyer in good faith. CA reversed the
appellant in his motion papers. Possession is the
RTC decision and ruled that in Article 559, if the
fundamental basis of the prescription. Without it no
kind of prescription is possible, not even the owner has lost a thing, or if he has been unlawfully
extraordinary. deprived of it, he has a right to recover it, not only
from the finder, thief or robber, but also from third
persons who may have acquired it in good faith from
Possession, under the Civil Code, to constitute the
such finder, thief or robber.
foundation of a prescriptive right, must be
possession under claim of title (en concepto de The said article establishes two (2) exceptions to the
dueno), or use the common law equivalent of the general rule of irrevendicability, to wit: when the
term, it must be adverse. Acts of a possessory owner (1) has lost the thing, or (2) has been
unlawfully deprived thereof. In these cases, the
character performed by one who holds by mere
possessor cannot retain the thing as against the
tolerance of the owner are clearly not en concepto owner who may recover it without paying any
de duen o, and such possessory acts, no matter how indemnity, except when the possessor acquired it in
long so continued, do not start the running of the a public sale.
period of prescription.
If the owner has lost the thing or has been
unlawfully deprived thereof, the good faith of the
possessor is not a bar to recovery of the movable
LEDESMA V CA unless the possessor acquired it in a public sale of
which there is no pretense in this case.
Facts: Petitioner impugns the CA Decision ordering
plaintiff to return the repossessed Isuzu Gemini, A party who (a) has lost any movable or (b) has been
1977 Model vehicle, to the Citiwide Motors. unlawfully deprived thereof can recover the same
Petitioner knew that the vehicle was the object of a from the present possessor even if the latter
fraud and a swindle and respondent did not rebut or acquired it in good faith and has, therefore, title
contradict Ledesma's evidence that valuable thereto for under the first sentence of Article 559,
consideration was paid for it. such manner of acquisition is equivalent to a title.

In 1977, Jojo Consunji, purchased for his father There are three (3) requisites to make possession of
Rustico Consunji, 2 motor vehicles from Citiwide movable property equivalent to title, namely:
Motors, Inc. Check was given for payment which was
later on dishonored because amount was tampered (a) the possession should be in good faith;
from P101 to P101,00. Plaintiff reported to the
Philippine Constabulary the criminal act perpetrated (b) the owner voluntarily parted with the possession
by the person who misrepresented himself as Jojo of the thing; and
Consunji that the real identity of the
wrongdoer/impostor is Armando Suarez who has a

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(c) the possession is in the concept of owner., one Issue: Whether or not Dizon may validly possessed
who has lost a movable or who has been unlawfully the diamond ring of Suntay by virtue of it being
deprived of it cannot be said to have voluntarily pledge in his pawnshop.
parted with the possession thereof. This is the
justification for the exceptions found under the Held: No. Article 559 of the Civil Code provides 'The
second sentence of Article 559 of the Civil Code. possession of movable property acquired in good
faith is equivalent to a title. Nevertheless, one who
SC held that there, was a perfected unconditional has lost any movable or has been unlawfully
contract of sale between Citiwide and Jojo Consunji. deprived thereof may recover it from the person in
Citiwide had voluntarily caused the transfer of possession of the same.
certificate of registration even if he was represented
by someone who used a fictitious name. The If the possessor of a movable lost of which the
dishonored check was just a failure of consideration owner has been unlawfully deprived, has acquired it
which does not render the sale void but only allows in good faith at a public sale, the owner cannot
parties prejudiced to sue for performance or obtain its return without reimbursing the price paid
rescission of contract and to prosecute impostor for therefor. Thus the only exception the law allows is
estafa. when there is acquisition in good faith of the
possessor at a public sale, in which case the owner
It was therefore erroneous for the respondent Court cannot obtain its return without reimbursing the
to declare that the private respondent was illegally price.
deprived of the car simply because the check in
payment therefor was subsequently dishonored; As authoritatively interpreted in Cruz v. Pahati, the
said Court also erred when it divested the petitioner, right of the owner cannot be defeated even by proof
a buyer in good faith who paid valuable that there was good faith in the acquisition by the
consideration therefor, of his possession thereof. possessor. In the case at bar, Suntay, being
unlawfully deprived of her ring thus she has a right
to recover it from the current possessor not only has
the ownership and the origin of the ring
DIZON V SUNTAY misappropriated been unquestionably proven but
Facts: Plaintiff Suntay is the owner of a three-carat also that Sison has fraudulently and in bad faith,
diamond ring valued at P5,500.00, she and Clarita R. disposed of and pledged them contrary to
Sison entered into a transaction wherein the agreement, with no ownership, and to the prejudice
plaintiff's ring was delivered to Sison for sale on of Suntay, who was thereby illegally deprived of said
commission. Upon receiving the ring, Sison executed jewels.
and delivered to the plaintiff the receipt .
The owner has the right to recover. She is not
After the lapse of a considerable time without Clarita estopped when his property has been unlawfully
R. Sison having returned to the plaintiff the latter's pledged by another. Dizon is engaged in a business
ring, the plaintiff made demands on her for the where presumably ordinary prudence would require
return of her ring but the latter could not comply him to inquire whether or not an individual who is
with the demands. It was later found out that, offering the jewelry by pledge is entitled to do so.
without the knowledge of Suntay, the said ring was The principle of estoppel cannot help him at all.
pledged by Melia Sison, niece of the husband of Since there was no precaution availed of, perhaps
Clarita R. Sison. because of the difficulty of resisting opportunity for
profit, he only has himself to blame and should be
Suntay was persistent in demanding the return of the last to complain if the right of the true owner of
the ring and so Clarita finally delivered to Suntay the the jewellery should be recognized.
pawnshop ticket which is the receipt of the pledge to
respondent Dizons pawnshop.

Suntay asked for the return of her ring but the

pawnshop owner, refused to.

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WONG V CARPIO Held: No, because Mercado had prior possession.

Art. 531 of NCC states that possession is acquired by
Facts: In 1972, a pacto de retro sale was made by
the material occupation of a thing or the exercise of
William Giger in favor of Manuel Mercado (plaintiff)
a right, or by the fact that it is subject to the action
for a consideration of P3,500. In 1973, Giger asked
of our will, or by the proper acts and legal formalities
for an additional amount of P2,500 from Mercado
for acquiring such right and that the execution of a
and required Giger to sign a new deed of Pacto de
sale thru a public instrument shall be equivalent to
Retro Sale before a notary public.
the delivery of the thing, unless there is stipulation
to the contrary. In the case at bar, the notarized sale
In 1972, Mercado began to pay the taxes on the land
made by Giger in favor of Mercado transferred the
and would periodically go to harvest only the
possession to him.
coconut fruits but he never reside on the land for he
As to the second sale, it did not transfer possession
is a businessman and a storekeeper by occupation
because by the time of the sale, Giger is no longer in
and he resides at Lower Sta. Maria, Davao del Sur
possession of the land. Also, possession as a fact can
while the land is at Colongan, Sta. Maria. He also did
no longer be recognized at the same time in two
not put any sign to show that he is in actual
different personalities except in the cases of co-
possession. Should a question arise regarding the
fact of possession, the present possessor shall be
Before July 1976, Wong went to the subject land to
preferred; if there are two possessions, the one
find out if there were other people residing and
longer in possession, if the dates of possession are
claiming it, he found none. In July 1976, he bought
the same, the one who presents a title; and if these
the subject land from Giger and his wife. After its
conditions are equal, the thing shall be placed in
execution, Wong asked for the delivery of title.
judicial deposit pending determination of its
Wong declared the land for tax purposes in his name
possession or ownership through proper
and tried to register the pacto de retro sale but
proceedings. (Art. 538, NCC)
failed due to some technicalities.
In the argument of Wong that he never acted with
August 1976, Mercado knew that there were
FISTS, SC held that the act of entering the property
defendants laborers in the land and built a
and excluding the lawful possessor therefrom
farmhouse, made clearings and fenced the
necessarily implies the exertion of force over the
boundaries; he also placed signboards that indicates
property, and this is all that is necessary and if a
the land was his but he did not do anything to stop
trespasser enters upon land in open daylight, under
the very eyes of person already clothed with lawful
possession, but without the consent of the latter,
September 1976, Mercado went to the land to make
and there plants himself and excludes such prior
copras and the incident was entered in the police
possessor from the property, the action of forcible
entry and detainer can unquestionably be
maintained, even though no force is used by the
November 1976, Wong received a copy of a
trespasser other than such as is necessarily implied
complaint of forcible entry with summons before the
from the mere acts of planting himself on the
Municipal Court of Sta. Maria, Davao del Sur. The
ground and excluding the other party.
said court decision was Wong had prior, actual and
continuous physical possession. On appeal, the CFI
Possession in good faith ceases from the moment
of Davao del Sur rendered that Mercado have taken
defects in the title are made known to the
possession of the property earlier in point of time
possessors. A possessor in good faith is entitled to
and Wong is an intruder and is ordered to return the
the fruits only so long as his possession is not legally
possession of the land and must pay for monthly
interrupted and such interruption takes place upon
rentals from Aug. 1976 until the land is returned.
service of judicial summons. (Arts. 544, 1123, NCC)
Wong filed the instant petition with the CA.

Issue: Whether or not Wong has a better title over

the disputed property.

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SAMODIO V CA Possession in the eyes of the law does not mean that
a man has to have his feet on every square meter of
Facts: On October 21, 1974, Jose Ortigas executed
ground before it can be said that he is in possession.
an instrument designated as a Transfer of Rights,
It is sufficient that petitioner was able to subject the
conveying to Wilfredo Mabugat the possession of a
property to the action of his will.
residential lot situated at General Santos City,
Nicanor Somodio, herein petitioner, contributed one
Article 531 of the Civil Code of the Philippines
half of the purchase price.
Possession is acquired by the material occupation of
On October 22, 1974, Mabugat executed an Affidavit
a thing or the exercise of a right, or by the fact that it
of Trust expressly recognizing the right of Samodio
is subject to the action of our will, or by the proper
over one half undivided portion of the lot.
acts and legal formalities established for acquiring
such right.
Thereafter, petitioner and Mabugat partitioned the
property into two portions, with petitioner taking
Even if the Court of Appeals is correct in its finding
the western part. Immediately after the partition,
that petitioner started introducing improvements on
Samodio took possession of his portion and planted
the land only in 1981, he still enjoyed priority of
thereon ipilipil trees, coconut trees and other fruit
possession because respondent Purisima entered
bearing trees. In 1976, petitioner began construction
the premises only in 1983.
of a structure on his lot.
Moreover, neither is the fact that respondent
His employment, however, took him to Kidapawan,
Purisima's father surveyed the property of help to
North Cotabato, and he left the unfinished structure
his cause. As the Court of Appeals found, respondent
to the case of his uncle. He would visit the property
Purisima's father surveyed the land for the Small
every three months or on weekened when he had
Farmers Fishpond Association, Inc., not for himself.
Although respondent Purisima now claims that Lot
No. 6328X was in payment of his fee for the services
Sometime in October 1977, petitioner allowed
of his father and that he caused the construction of a
respondent Felomino Ayco, to transfer his hut to
perimeter wall in the area, these facts do not mean
petitioner's lot. About six years later, petitioner
that respondent Purisima himself had prior
demanded that Ayco vacate the premises but such
possession. He did not present any proof that his
demand proved futile. Hence, on August 23, 1983,
father had authorized him to enter the land as his
petitioner filed an action for unlawful detainer with
successor- in- interest.
damages against respondent Ayco.
Neither did he present proof that between 1958,
Meanwhile, on June 26, 1983, respondent Ebenecer
when his father allegedly took possession of the
Purisima entered the land and constructed a house
land, and 1983, when said respondent himself
thereon. Four days later, petitioner filed against
entered the land, his father ever exercised whatever
respondent Purisima a complaint for forcible entry.
right of possession he should have over the
property. Under these circumstances, priority in
Issue: Whether or not Samodio has a prior
time should be the pivotal point in resolving the
possession of the said lot
issue of possession
Held: Yes. Petitioner took possession of the property
Petitioner's prior possession over the property,
sometime in 1974 when he planted the property to
however, is not synonymous with his right of
coconut trees, ipilipil trees and fruit trees. In 1976,
ownership over the same. As earlier stated,
he started the construction of a building on the
resolution of the issue of possession is far from the
property. It is immaterial that the building was
resolution of the issue of ownership. Forcible entry is
unfinished and that he left for Kidapawan for
merely a quieting process and never determines the
employment reasons and visited the property only
actual title to an estate.

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EDCA PUBLISHING CORP V SANTOS she was accustomed to dealing with. Therefore, we
could not conclude that Santos was a buyer in bad
Facts: Professor Jose Cruz placed an order by
faith as he was engaged with such business.
telephone with the petitioner company EDCA for
406 books. EDCA delivered the books as ordered, for Further, Jose Cruz nonpayment only creates a right
which Cruz issued a personal check. to demand payment or to rescind the contract, or to
criminal prosecution in the case of bouncing checks.
Thereafter, Cruz sold 120 of the books to private
But absent the stipulation in the contract of sale,
respondent Leonor Santos. Meanwhile, EDCA having
delivery of the thing sold will effectively transfer
become suspicious over a second order placed by
ownership to the buyer who can in turn transfer it to
Cruz even before clearing of his first check, made
inquiries with the De la Salle College and was
informed that such person is not their
employee/faculty member.
, actual delivery of the books having been made,
EDCA then went to the police, which set a trap and Cruz acquired ownership over the books which he
arrested Cruz. EDCA sought the assistance of the could then validly transfer to the private
police, which forced their way into the store of the respondents. The fact that he had not yet paid for
Santos and threatened Leonor Santos with them to EDCA was a matter between him and EDCA
prosecution for buying stolen property. They seized and did not impair the title acquired by the private
the 120 books without warrant. With protest, the respondents to the books.
spouses Santos sued for recovery of the books after
the demand for their return was rejected by EDCA.

Issue: Whether or not EDCA been unlawfully Facts: Mrs. Guevara owned a diamond ring with
deprived of the books. white gold mounting, 2.05 diamond-solitaire, and 4
brills. Sometime in February 1952, the ring was
Held: No. According to Article 559. The possession of stolen from her house. On October 1953 she found it
movable property acquired in good faith is at a restaurant, La Bulakena, on the finger of the
equivalent to a title. Nevertheless, one who has lost restaurant owner, Consuelo De Garcia. Guevara
any movable or has been unlawfully deprived asked De Garcia where she bought it and explained
thereof, may recover it from the person in to her how she had lost it. When the ring was
possession of the same. handed to her by De Garcia, it fitted her perfectly.
The next time around, she brought her husband and
Rebullida, the person whom she bought the ring
If the possessor of a movable lost or of which the
from, to verify the identity of the ring.
owner has been unlawfully deprived has acquired it
in good faith at a public sale, the owner cannot Rebullida examined the ring with the aid of high
obtain its return without reimbursing the price paid power lens and his 30 years of experience in jewelry
therefor. business. He concluded that it was the very ring that
he had sold to the Guevaras. Guevara then sent a
It is the contention of the petitioner that the private written request for the return of the ring, but De
respondents have not established their ownership of Garcia did not deliver it. When the sheriff tried to
the disputed books because they have not even serve a writ of seizure, De Garica likewise refused to
produced a receipt to prove they had bought the deliver the ring. According to De Garcia, she bought
stock. The argument that the private respondents the ring from her kumare who got it from another
did not acquire the books in good faith has been Miss who in turn got it from the owner, a certain
dismissed by the lower courts. Leonor Santos first Aling Petring. Aling Petring however, was nowhere
ascertained the ownership of the books from the to be found. The first buyer did not even know Aling
EDCA invoice showing that they had been sold to Petrings last name nor her forwarding address. De
Cruz. Private respondents are in the business of Garcia claims to be a holder in good faith and for
buying and selling books. To Leonor Santos, Cruz value. She says her possession is equivalent to title.
must have been only one of the many such sellers The lower courts both ruled in favor of the buyer

40 | P a g e

while the Court of Appeals reversed the decision in sell on commission. However, Perello instead of
favor of the owner, Guevara applying Article 559 of fulfilling her trust, pledged the jewellery in the
the New Civil Code. Hence, the present petition for defendant Raymundos pawnshop in Tondo, and
review on certiorari. appropriated to her own use the money thereby
Subsequently, Perello was convicted for estafa,
1. Whether or not De Garcias possession of the convicted, and that the said jewellery was then
diamond ring is equivalent to title. under the control and in the possession of the
Raymundo, as a result of the pledge and that the
2. Whether or not De Garcia is a holder in good faith latter refused to deliver it to Arenas the owners
and for value thereof.
Held: The Supreme Court ruled in the negative. De
As a special defense, Raymundo, alleged that the
Garcias possession of the diamond ring is not
jewelry was pledged on his pawnshop by Conception
equivalent to title and her possession thereof is not
Perello, the widow of Pazos, as security for a loan of
in good faith.
P1,524, with the knowledge, consent, and mediation
1. No. Article 559 of the New Civil Code applies in of Gabriel La O, a son of the plaintiffs, as their agent,
this case. The said article establishes two exceptions and that, in consequence thereof, the said plaintiffs
to the general rule of irrevindicability: when the were estopped from disavowing the action of the
owner (1) has lost the thing, or (2) has been said Perello.
unlawfully deprived thereof. In these cases, the
possessor cannot retain the thing as against the After the hearing, the court ruled in favor of
owner, who may recover it without paying any plaintiffs, sentencing Raymundo to restore the said
indemnity. The only exception is acquisition in good jewelry to the plaintiffs.
faith of the possession at a public sale. There is no
merit in the contention that De Garcias possession Issue: Whether or not Raymundo has the right to
is in good faith, equivalent to title, sufficed to defeat possess the said jewelry.
the owners claim. Possession in good faith does not
really amount to title for the reason that there is a Held: No. Perello having pledged the jewelry in
period for acquisitive prescription for movable question to the defendant Raymundo, and not
through uninterrupted possession of 4 years. having redeemed it by paying him the amount
received, it follows that the convicted woman, now
2. The title of the possessor in good faith is not that serving the sentence imposed upon her, could not
of ownership, but is merely a presumptive title restore the jewelry as ordered in that judgment,
sufficient to serve as a basis for acquisitive which has become final by the defendant's
prescription. One who has lost any movable or has acquiescence.
been unlawfully deprived thereof, may recover it
from the person in possession of the same. Besides,
Article 120 of the Penal Code prescribes:
De Garcias title, if any, was weak. Her source,
Aling Petring, was dubious. She did not make a
comment when Rebullida examined the ring nor did The restitution of the thing itself must be made, if be
she answer Guevaras letter asserting ownership of in the possession of a third person, who had
it. acquired it in a legal manner, reserving, however, his
action against the proper person.
Restitution shall be made, even though the thing
Facts: Plaintiffs Estanislaua Arenas et al. was the
may be in the possession of a third person, who had
owner and proprietor of jewellery. Arenas alleged
acquired it in a legal manner, reserving, however, his
that the said jewellery was delivered to Elena de
action against the proper person.
Vega to sell on commission, and that the latter, in
turn, delivered it to Conception Perello, likewise to

41 | P a g e

This provision is not applicable to a case in which the having been convicted and sentenced for estafa, and
third person has acquired the thing in the manner for the very reason that she is now serving her
and with the requisites established by law to make it sentence must be complied with, that is, the jewelry
unrecoverable. misappropriated must be restored to its owner,
inasmuch as it exists and has not disappeared this
The provisions contained in the first two paragraphs restitution must be made, although the jewelry is
of the pre-inserted article are based on the found in the pawnshop of Fausto O. Raymundo and
uncontrovertible principle of justice that the party the latter had acquired it by legal means. Raymundo
injured through a crime has, as against all others, a however retains his right to collect the amounts
preferential right to be indemnified, or to have delivered upon the pledge, by bringing action against
restored to him the thing of which he was unduly the proper party. This finding is in accord with the
deprived by criminal means. provisions of the above article 120 of the Penal Code
and first paragraph of article 464 of the Civil Code.
In view of the harmonious relation between the
different codes in force in these Islands, it is natural The aforementioned decision, Varela vs. Finnick,
and logical that the aforementioned provision of the recites among other considerations, the following:
Penal Code, based on the rule established in article
17 of the same, to wit, that every person criminally The exception contained in paragraph 3 of said
liable for a crime or misdemeanor is also civilly article is not applicable to the present case because
liable, should be in agreement and accordance with a pawnshop does not enjoy the privilege established
the provisions of article 464 of the Civil Code (Now by article 464 of the Civil Code. The owner of the
Art 559 of NCC) which prescribes: loan office of Finnick Brothers, notwithstanding the
fact that he acted in good faith, did not acquire the
The possession of personal property, acquired in jewels at a public sale; it is not a question of public
good faith, is equivalent to a title thereto. property, securities, or other such effects, the
However, the person who has lost personal transfer, sale, or disposal of which is subject to the
property or has been illegally deprived thereof may provisions of the Code of Commerce. Neither does a
recover it from whoever possesses it. pawnshop enjoy the privilege granted to a monte de
piedad; therefore, Josefa Varela, who lost said jewels
If the possessor of personal property, lost or stolen, and was deprived of the same in consequence of a
has acquired it in good faith at a public sale, the crime, is entitled to the recovery thereof from the
owner can not recover it without reimbursing the pawnshop of Raymundo.
price paid therefor.
Even supposing that the defendant Raymundo had
Neither can the owner of things pledged in acted in good faith in accepting the pledge of the
pawnshops, established with the authorization of jewelry in litigation, even then he would not be
the Government, recover them, whosoever may be entitled to retain it until the owner thereof
the person who pledged them, without previously reimburse him for the amount loaned to the
refunding to the institution the amount of the embezzler, since the said owner of the jewelry, the
pledge and the interest due. plaintiff, did not make any contract with the
pledgee, that would obligate him to pay the amount
loaned to Perello, and the trial record does not
With regard to things acquired on exchange, or at
disclose any evidence, even circumstantial, that the
fairs or markets or from a merchant legally
plaintiff Arenas consented to or had knowledge of
established and usually employed in similar
the pledging of her jewelry in the pawnshop of the
dealings, the provisions of the Code of Commerce
shall be observed.

For this reason, and because Conception Perello was

In the present suit, it was not proven that
not the legitimate owner of the jewelry which she
Estanislaua Arenas authorized the former to pawn
pledged to the defendant Raymundo, for a certain
the jewelry given to her by Arenas to sell on
sum that she received from the latter as a loan, the
commission. Because of the mere fact of Perello's

42 | P a g e

contract of pledge entered the jewelry so pawned USUFRUCT

cannot serve as security for the payment of the sum
Article 562 of the Civil Code
loaned, nor can the latter be collected out of the
value of the said jewelry. 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.
The combination of jus utendi (right to use) and jus
fruendi (right to the fruits) is called usufruct. Jus
disponendi or the power to alienate, encumber,
transform, and even destroy the property is retain in
the owner.


1. Essential Characteristics (those without which it
cannot be termed usufruct)
a. It is a real right
b. It is of a temporary nature or duration
c. Its purpose is to enjoy the benefits and derive
all advantages from the object as a
consequence of normal use or exploitation
2. Natural Characteristics or Element (that which
ordinarily is present, but a contrary stipulation
can eliminate it because it is not essential) the
obligation of conserving or preserving the form
and substance of the thing
3. Accidental Characteristics or Elements (those
which may be present or absent depending upon
the stipulation of the parties).
a. Whether it be a pure or a conditional
b. The number of years it will exist
c. Whether it is in favor of one person or
several, etc.


1. To prevent extraordinary exploitation
2. To prevent abuse, which is frequent
3. To prevent impairment

1. May be real or personal property
2. May be sterile or productive (fruitful things)

43 | P a g e

3. May be created over a right (as long as it is not 3. Both may ordinarily be alienated or transmitted
strictly personal or intransmissible, and as long as in accordance with the formalities set by law.
it has an independent existence)
1. Action to protect the usufruct itself
2. Action to protect the exercise of the usufruct 1. As to Covers all Generally
extent fruits and uses covers only a
as a rule particular or
1. As to object The object This involves specific use
here may be only real
2. As to Is always a real Is a real right
real or property
nature of right only if, as in
the right the case of a
lease over real
2. As to what What can be Easement is property, the
can be enjoyed here limited to a lease is
enjoyed are all uses particular use registered, or
and fruits of is for more
the property than one year,
otherwise, it is
3. As to where A usufruct An easement
only a
it can be cannot be may be
personal right
constructed constituted on constituted in
an easement; favor of, or 3. As to the Can be The lessor may
but it may be burdening, a creator of created only or may not be
constituted on piece of land the right by the owner, the owner (as
the land held in or by a duly when there is
burdened by usufruct authorized a sub-lease or
an easement agent, acting when the
in behalf of lessor is only a
4. As to its Usually Not
the owner usufructuary)
extinguish extinguished extinguished
ment by death of by the death 4. As to May be May be
usufructuary of the owner origin created by created as rule
of the law, contract, only by
dominant last will, or contract, and
estate prescription by way of
exception by
EASEMENT 5. As to The owner is The owner or
cause more or less lessor is more
1. Both are real rights, whether registered or not.
passive, and or less active,
2. Both rights may be registered, provided that the
usufruct involves real property. All easement of he allows the and he makes
course concern real property. (Thus, a usufruct usufructuary the lessee
over personal property though a real right, to enjoy the enjoyhace
cannot be registered because it is a real right thing given in gozar
over personal property.)

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usufructdeja 1. As to fruits total or partial (depending on

gozar whether all the fruits are given or not).
2. As to object universal (if over the entire
6. As to The The lessee patrimony) (Art. 598) or singular or particular (if
repairs usufructuary generally has only individual things are included).
has the duty no duty to pay
to make the for repairs
1. Simple if only one usufructuary enjoys
7. As to taxes The The lessee 2. Multiple if several usufructuaries enjoy
usufructuary generally pays a. Simultaneous at the same time
pays for the no taxes b. Successive one after the other
charges and
taxes on the
1. Usufruct over rights there must not be strictly
8. As to other A usufructuary The lessee personal or intransmissible in characters, hence,
things may lease the cannot the right to receive present or future support
property itself constitute a cannot be the object of a usufruct. A usufruct
to another usufruct on over a real right is also by itself a real right.
the property 2. Usufruct over things
a. Normal (or perfect or regular) Usufruct this
involves non-consumable things where the
form and substance are preserved.
b. Abnormal (or imperfect or irregular)
CLASSIFICATION OF USUFRUCT AS TO ORIGIN Usufruct this is also called quasi-usufruct;
1. Legal created by law; usufruct of parents over usufruct over non-consumable things that
the property of their unemancipated children gradually deteriorate by use. Art. 591
2. Voluntary conventional provides that as to effects, a usufruct on
a. created by will of the parties inter vivos (as by sterile animals is to be considered a usufruct
contract or donation); when an owner sells or over a consumable or fungible things.
alienates the usufruct
b. created mortis causa (as in last will and
testament); the formalities of a will or codicil CLASSIFICATION OF USUFRUCT ACCORDING TO
must be complied with, either notarial or TERMS OR CONDITIONS
holographic) 1. Pure usufruct no term or condition
3. Mixed prescriptive; creative by both law and 2. With a term or period a termino
act of a person. a. ex die from a certain day
b. in diem up to a certain day
c. ex die in diem from day up to a certain day
Article 709 of the Civil Code 3. With a condition conditional
A usufruct over real property, being a real right,
must be duly registered in order to bind innocent
1. The agreement of the parties or the title giving
the usufruct (thus, by agreement, the
CLASSIFICATION OF USUFRUCT ACCORDING TO usufructuary may be allowed to alienate the very

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thing held in usufruct although generally, this NOTE: There can be no pending civil fruits or rents,
alienation is not allowed by the codal provisions). for they accrue daily. Civil fruits belong to the
2. In case of deficiency, apply the Civil Code. usufructuary in proportion to the time the usufruct
may last. (Art. 569)
NOTE: In case of conflict between the rights granted
a usufructuary by virtue of a will, and codal
provisions, the former, unless repugnant to the
mandatory provisions of the Civil Code, should
General Rule: The lease executed by the
usufructuary should terminate at the end of the
RIGHTS OF THE USUFRUCTUARY usufruct or earlier (Art. 572)
The usufructuary is entitled to the natural, Exception: in the case of leases of rural lands, if the
industrial, and civil fruits that will accrue during the usufruct ends earlier than the lease, the lease
existence of the usufruct. continues for the remainder of the agricultural year
(Art. 572)
A dividend (whether in the form of cash or stock) is
income or civil fruits and should belong to the NOTE: The usufructuary has the right because a
usufructuary and not to the remainderman (naked usufructuary is allowed to administer and manage
owner). the property, to collect rents and to make the
necessary repairs. Included in this right is the right to
Incidentally, stock dividends may be sold
select the tenant over the premises. (Fabie vs. David)
independently of the original shares just as the
offspring of an animal may be alienated
independently of the parent animal.
As to hidden treasures, the usufructuary shall be Benefits)
considered a stranger. This means that the
These are considered civil fruits and shall be
usufructuary, not being the landowner, is not
deemed to accrue proportionately to the naked
entitled as owner, but is entitled as finder (to one-
owner and usufructuary, for the time the usufruct
half of the treasure, as a rule, unless there is a
contrary agreement) if he really is the finder. If
somebody else is the finder, the usufructuary gets Both stock dividends and cash dividends are civil
nothing. fruits. The same rule should apply to profits of a
The parties can stipulate otherwise in their contract,
but in the absence of stipulation, Art. 570 should
Fruits pending at the beginning of usufruct apply.
1. Belong to the usufructuary EXAMPLE: If A gives B the usufruct of As land, and
2. No necessity of refunding owner for expenses As land is being rented by C, each payment of rent
incurred shall go to B for the duration of the usufruct, each
3. But without prejudice to the right of third payment being considered as part of the proceeds of
persons the property.
Fruits pending at the termination of usufruct NOTE: Art. 570 applies whether or not the date of
distribution is not fixed.
1. Belong to the owner
2. But the owner must reimburse the usufructuary
for ordinary cultivation expenses and for the
seeds and similar expenses, from the proceeds of
the fruits The usufructuary has the right to the enjoyment
3. Rights of innocent third parties should not be (use, not ownership) of:
1. Accessions (whether artificial or natural)

46 | P a g e

2. Servitudes and easements usufructuary, does not end just because a lease
3. All benefits inherent in the property (right to has been made. The usufructuary, however, can
hunt and fish therein, right to construct rain demand reimbursement from the lessee,
water receptacles) because of the latters breach of the contract of
lease. If the usufructuary cannot pay the damage
The usufructuary, as a rule, is entitled to the
to the naked owner, his bond shall be liable. This
1. Entire jus fruendi (including fruits off accessions) is precisely one reason for the requirement of a
2. Entire jus utendi (so he can make use for example bond. (See Art. 583).
of an easement)
Rights with Reference to the USUFRUCTUARY
QUERY: If co-owners of a parcel of land will give its RIGHT ITSELF
usufruct to a relative, and subsequently they build a
house thereon and leases the same to others, will 1. He may alienate (sell, donate, bequeath, or
the rents go to the co-owners or to the devise) the usufructuary right (except a legal
usufructuary? usufruct); or a usufruct granted a usufructuary in
ANSWER: To the co-owners, because this is the consideration of his person; or a usufruct
evident intent of the parties. acquired thru a caucion juratoria, for here, the
need of the usufructuary himself is the reason for
the enjoyment. (See Art. 587).
ARTICLE 572 2. He may pledge or mortgage the usufructuary
right (because he OWNS said right) BUT he
The usufructuary may personally enjoy the thing in cannot pledge or mortgage the thing itself
usufruct, lease it to another, or alienate his right of because he does not own the thing. (See Art.
usufruct, even by a gratuitous title; but all the 2085[2]). Neither can he sell or in any way
contracts he may enter into as such usufructuary alienate the thing itself, or future crops, for crops
shall terminate upon the expiration of the usufruct, pending at the termination of the usufruct
saving leases of rural lands, which shall be belong to the naked owner. (Art. 567).
considered as subsisting during the agricultural year. NOTE: Parental usufruct cannot be alienated or
NOTE: pledged or mortgaged.

Lease act of administration

Usufruct act of alienation
Rights with Reference to the THING ITSELF (in Art. 573 of the Civil Code
Addition to the Usufruct)
Whenever the usufruct includes things which,
1. He may personally enjoy the thing (that is, without being consumed, gradually deteriorate
entitled to possession and fruits). through wear and tear, the usufructuary shall have
NOTE: The enjoyment may also be thru another the right to make use thereof in accordance with the
unless the contrary has been provided or purpose for which they are intended, and shall not
stipulated. be obliged to return them at the termination of the
2. He may lease the thing to another. usufruct except in their condition at that time; but
GENERAL RULE: This can be done even without he shall be obliged to indemnify the owner for any
the owners consent; moreover, ordinarily the deterioration they may have suffered by reason of
lease must not extend to a period longer than his fraud or negligence.
that of the usufruct, unless the owner consents.
Thus, the lease ends at the time the usufruct NOTE: It is true that all things deteriorate, but there
ends. are some things that deteriorate much faster than
EXCEPTION: Except in the case of rural leases. others (such as clothes, furniture, carriages, vehicles,
NOTE: If the lessee should damage the property, computers, copiers, or books).
the usufructuary shall answer to the owner. (Art.
590). The relation between the owner and the

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Effect of the Deterioration on the Usufructuarys price current at the termination of the
Liability usufruct (therefore not at the original price
or value).
1. Deteriorate because of normal use, the
usufructuary is not responsible. Therefore, he
can return them in the condition they might be in
at the termination of the usufruct. There is no
necessity for him to make any repairs to restore The usufructuary can use (even for rewood, though
them to their former condition, for after all, they he is NOT the naked owner) the following:
can be PRESERVED without the necessity of
1. dead trunks
repairs (as when the varnish of a chair has
2. those cut off or uprooted by accident BUT he
disappeared). Failure to return the thing will
must REPLACE them with new plants (for indeed,
result in indemnication for the value the object
he was not the naked owner).
may have at the end of the usufruct.
2. Deteriorate because of an event or act that NOTE: This is a special usufruct.
endangers their preservation (as when by
Other Special Usufructs
fortuitous event, lightning splits a table into
three pieces), then even though there was no 1. of periodical pension, income, dividends. (Art.
fault or negligence or fraud on the part of the 570).
usufructuary, he is still required, under Art. 592, 2. of woodland. (Art. 577).
to make the NECESSARY OR ORDINARY 3. of right of action to recover real property, real
REPAIRS. Thus, mere deterioration thru normal right, or movable property. (Art. 578).
use does not require the ordinary repairs 4. of part of property owned in common. (Art. 582).
referred to in Art. 592. 5. of the entire patrimony of a person. (Art. 598).
3. Deteriorate because of fraud (dolo incidente or 6. on a mortgaged immovable. (Art. 600).
fraud amounting to an EVASION of the obligation 7. on a ock or herd of livestock. (Art. 591).
to preserve) or NEGLIGENCE (culpa), the
usufructuary is responsible. (Art. 573). (Such
liability may however be set off against
Effect of a Calamity on the Trees and Shrubs
improvements.) (See Art. 580).
EXAMPLE: A is usufructuary of trees and shrubs
belonging to B. As a result of an earthquake, many of
ABNORMAL USUFRUCT ON CONSUMABLE THINGS the trees and shrubs disappeared or were destroyed.
What are As rights and obligations?
This is sometimes referred to as a quasi-usufruct
because the form and substance is not really ANSWER:
preserved. This, this is really a simple loan. It has
been included however in the title on usufructs 1. If it is impossible or too burdensome to replace
because in what are called universal usufructs, both them, the usufructuary has an OPTION. He
non-consumable and consumable properties are a. may use the trunks but should replace them
included. (Art. 575);
b. or may leave the dead, fallen, or uprooted
NOTE: Even money may be the object of usufruct.
trunks at the owners disposal, and demand
Rules for Quasi-Usufruct that the latter remove them and clear the
1. The usufructuary (debtor-borrower) can use land. (Art. 576).
them (as if he is the owner, with complete right 2. If it is slightly burdensome to replace them, the
of pledge or alienation). usufructuary MUST replace them (whether he
2. But at the end of the usufruct, he must uses the dead trunks or not), and he cannot
a. Pay the appraised value (if appraised when demand clearance of the land by the owner. (See
first delivered) 4 Manresa 435-437).
b. Or, if there was no appraisal, return the
same kind, quality, and quantity or pay the

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SPECIAL USUFRUCT OVER A WOODLAND has the right to bring the action and to oblige the
owner thereof to give him the authority for this
This is not a common or frequent usufruct because:
purpose and to furnish him whatever proof he may
1. natural resources (including forest or timber have. If in consequence of the enforcement of the
lands) belong to the State (Regalian Doctrine action he acquires the thing claimed, the usufruct
under Art. XII, Sec. 3 of the 1987 Philippine shall be limited to the fruits, the dominion remaining
Constitution); with the owner.
2. a license is generally essential if one desires to Special Usufruct deals with the Right of Recover by
gather forest products. (See Sec. 47, Revised Court Action
Administrative Code).
1. real property
Obligations of the Usufructuary 2. personal property
3. real right over real or personal property
In the enjoyment of the usufruct, the usufructuary:
NOTE: In a sense, this is a usufruct over an
1. must bear in mind that he is not the owner, and
expectancy or a hope.
therefore, in the exercise of the diligence in
caring for the property (required under Art. 589
he must see to it that the woodland is preserved,
either by development or by replanting, thus he What the Usufructuary Can Demand
cannot consume all, otherwise nothing would be
left for the owner.) To bring the action, the usufructuary can DEMAND
2. in the cutting or felling of trees, he must from the owner:
a. follow the owners habit or practices;
1. authority to bring the action (usually a special
b. in default thereof, follow the customs of the
power of attorney).
place (as to MANNER, AMOUNT and SEASON)
2. proofs needed for a recovery.
(Art. 577) all without prejudice to the
owner, for while he can USE, he cannot How Third Parties Can Be Prejudiced
NOTE: The rule above is applicable if the To prejudice third parties, the usufruct must either
woodland: be registered or known to them. (Art. 709).
a) is a COPSE (thicket of small trees),
b) or consists of timber for BUILDING.]. Institution of the Action
c. if there be no customs, the only time the
The action may be instituted in the usufructuarys
usufructuary can CUT DOWN trees will be for
name, for being the owner of the usufruct, he is
REPAIR or IMPROVEMENT, but here the
owner must rst be informed (the owner, properly deemed a real party in interest.
thus, does not need to consent). 1. If the purpose is the recovery of the property or
3. cannot alienate the trees (for the trees are not right, he is still required under Art. 578 to obtain
considered fruits) unless he is permitted,
the naked owners authority.
expressly or impliedly by the owner (as when
2. If the purpose is to object to or prevent
the purpose of the usufruct was really to sell the disturbance over the property (once the property
timber) or unless he needs the money to do is given him), no special authority from the naked
some repairs (but in the last case, the owner
owner is needed.
must be informed).
Effect of Judgment

USUFRUCT OF AN ACTION TO RECOVER THROUGH 1. When judgment is awarded him and he gets the
THE COURTS property:
2. its naked ownership belongs to the OWNER; its
Article 578 of the Civil Code usufruct belongs to him (the USUFRUCTUARY).
The usufructuary of an action to recover real (Art. 578, last part).
property or a real right, or any movable property,

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NOTE: Usually, this usufruct occurs when a of the owner to retain, upon proper
UNIVERSAL USUFRUCT has been given. indemnication. (Arts. 546 and 548 refer to a
possessor, not to a usufructuary).
NOTE: After successful suit, the usufruct is now over 4. QUESTION: On a parcel of land held by A in
the thing acquired. usufruct, A constructed a building and planted
some trees. Upon the termination of the
USEFUL AND LUXURIOUS IMPROVEMENTS usufruct, may A destroy the building, and cut
The usufructuary has the RIGHT (not the duty) to down the trees?
make: ANSWER: Yes, because he, after all, owned the
improvements and he could thus remove them
1. useful improvements; for the land would not be injured. However, he
2. luxurious improvements (for mere pleasure). must leave the land in the way it had been
BUT before construction of the building and planting
of the trees.
1. He must not alter the form or substance of the
property held in usufruct (he cannot build a Registration of Improvements
house if to do so would destroy an orchard, if the
usufruct is on an orchard, unless the owner Improvements made by a usufructuary belong to
consents). him, and may therefore be registered, not
2. He is NOT entitled to a REFUND (otherwise he independently, but in the registration proceedings of
might improve the naked owner out of his the land held in usufruct. The purpose of the
property), but he may registration is to protect him against third persons,
a. either remove the improvements if no for while he cannot obtain a refund therefor, still he
substantial damage to the property in may remove them or set them off against damages
usufruct is caused (Art. 579); chargeable to him. (If the property is sold to an
b. OR set off (compensate) the improvements innocent purchaser for value, the right to remove
against damages for which he may be liable. the useful improvements since NOT REGISTERED
(Art. 580). cannot be enforced against said third person. [See
Mella v. Bismanos, CA, 45 O.G. 2099].)
1. QUESTION: If the improvement cannot be
removed without substantial injury, is the Usufructuary Compared With Possessor in Good
usufructuary entitled to a refund? Faith
ANSWER: No. (See Art. 579). But he may still
While a possessor in good faith is entitled to a
avail himself of the set-off. (Art. 580).
refund for useful improvements, a usufructuary is
2. QUESTION: A usufructuary introduced useful
not. (See Rivera v. Trinidad, 48 Phil. 396).
improvements, which he can remove without
damage, but he does not want to remove them. NOTE: Under the Old Civil Code, a tenant or lessee
Can he be compelled by the naked owner to was also not allowed a refund and therefore was in
make the removal? ANSWER: No, for the law the same position as a usufructuary because BOTH
says may, and therefore he may or may not of them know that the land is not theirs, but under
remove, the right being potestative (dependent the New Civil Code, the lessee (not the usufructuary)
on his will). is entitled to a refund of one-half.
3. QUESTION: A usufructuary introduced useful
improvements which he can remove without
damage. He wants to remove them, BUT the RIGHT TO SET-OFF IMPROVEMENTS
owner wants to retain them, and offers to
Requisites before a set-off can be made
reimburse him. Who should prevail?
ANSWER: The usufructuary prevails for the right 1. The damage must have been caused by the
of removal granted him by the law. The rule here usufructuary
is different from that in Arts. 546 and 548, where 2. The improvements must have augmented the
the right to remove may be defeated by the right value of property

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Rules 1. construct any works

2. and make any improvements
1. If damage exceeds the value of the
3. or make new plantings thereon if it be rural BUT
improvements, usufructuary is still liable for the
always, such acts must not cause:
a. a decrease in the value of the usufruct;
2. If the value of the improvements exceeds the
b. or prejudice the right of the usufructuary.
damage, the difference does not go to the
(Art. 595).
usufructuary, but accrues instead in the absence
of a contrary stipulation in favor of the naked
owner, otherwise, it is as if the usufructuary
would be entitled to a partial refund in cash.
The usufructuary in such a case takes the owners
Since the jus disponendi and the title (dominium 1. administration (management);
directum) reside with the naked owner, he retains 2. collection of fruits or interest. (Art. 582). (BUT
the right to ALIENATE the property BUT not as to alienation, disposition, or creation of
any real right over the property, since these are
1. he cannot alter its form or substance; strict acts of ownership, unless of course he is
2. or do anything prejudicial to the usufructuary (as authorized by the naked owner.)
when he should illegally lease the property to
another, since this right ordinarily pertains to the Effect of Partition
usufructuary). 1. If there be a partition, the usufructuary continues
to have the usufruct of the part allotted to the
When buyer must respect the usufruct
co-owner concerned. (Art. 582).
A purchaser of the property must respect the 2. If the co-owners make a partition, without the
usufruct in case it is registered or known to him (See intervention of the usufructuary, this is all right,
Art. 709), otherwise, he can oust the usufructuary, and the partition binds said usufructuary.
who can then look to the naked owner for damages. Necessarily however, the naked owner must also
(See Art. 581). respect the usufruct.

Rule in Case of Succession

If the naked owner bequeathes (if personal
property) or devises (if real property) to another Article 583 of the Civil Code
thru a will, the legatee or devisee should respect the The usufructuary, before entering upon the
usufruct. (See Art. 934, last paragraph). enjoyment of the property, is obliged:
Double Sale by Naked Owner (1) To make, after notice to the owner or his
The naked owner is ordinarily not allowed to sell the legitimate representative an inventory of all the
usufruct to another after having sold it rst to the property, which shall contain an appraisal of the
usufructuary; but if he does so, Art. 1544 relating to movables and a description of the condition of the
a double sale applies. Thus, if the second buyer in immovables;
good faith registers the usufruct, he can oust the (2) To give security, binding himself to fulll the
rst buyer who did not register, even though the obligations imposed upon him in accordance with
latter be in possession. The right of the rst this Chapter.
usufructuary would be to proceed against the naked
owner for breach of the warranty against eviction.
Other Rights of the Naked Owner The usufructuary has obligations:

Aside from the right of the naked owner to alienate 1. Before the usufruct (like the making of inventory)
the property, he may also 2. During the usufruct (like taking due care of

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3. After the usufruct (like the duty to return and c. When the usufructuary is the donor of the
indemnify in the proper cases) property (who has reserved the usufruct).
(The naked owner should be grateful enough
Requirements for the Making of the Inventory
not to require the security). (Art. 584).
1. The owner (or his legitimate representative) d. When there is a parental usufruct (that is, in
must be previously NOTIFIED (his presence or the case of parents who are usufructuaries of
absence is not important). (Purpose of notice: To their childrens property, except when the
enable him to correct errors in the inventory; if parents contract a second or subsequent
he desires). marriage, PROVIDED that each childs
2. The condition of the IMMOVABLES must be property does not exceed P50, 000 in which
described. case, the parents have to le a bond (See Art.
3. The movables must be appraised (in view of easy 225, the Family Code) not as usufructuary,
deterioration or loss). but as guardian or administrator.
4. As a rule, NO FORM is required except that when e. When there is a caucion juratoria, which
there are real properties, Art. 1358 demands a takes the place of a bond, and is made by
public instrument to affect third parties. taking an oath to fulll properly the duties of
5. Expenses are to be borne by the usufructuary, a usufructuary, BUT this is available only
since the duty is his. under the conditions prescribed in Art. 587
6. Effect of not making inventory (except when (promise under oath).
excused) same as when the security is not 4. Effect of not giving Security: (See Arts. 586 and
given. (See Arts. 586 and 599; see also 3 Sanchez 599)
Roman 575-576).
NOTE: The usufructuary may be excused from the
7. When inventory is not required.
obligation of making an inventory or of giving
a. When no one will be injured thereby (as in
security when no one will be injured thereby.
the case of usufruct over a periodical pension
or incorporeal right) (See Art. 570) provided
the naked owner consents, for the law says
may. (Art. 585). (See 4 Manresa 464-467).
b. In case of waiver by the naked owner or the
law (See 4 Manresa 464-467), or when there On the Rights of the Naked Owner:
is a stipulation in a will or contract.
1. He may deliver the property to the usufructuary
The Giving of Security (since the article gives the owner a right, and not
a duty) (but even if delivery is made, the naked
1. Purpose: To insure faithful compliance of the owner may still later on demand the needed
duties of the usufructuary (whether required security).
during or at end of the usufruct like the duty 2. OR the naked owner may choose RETENTION of
to return). the property as ADMINISTRATOR (here the
2. Form of Security Since the law does not usufructuary gets the net proceeds, minus
specify what kind of security should be given, it administration expenses, the amount of which is
follows that any kind of sufcient security should xed by mutual agreement or by the courts).
be allowed such as a cash or personal bond, 3. OR the naked owner may demand RECEIVERSHIP
mortgage, etc. or ADMINISTRATION (by another) of the REAL
3. When Security Is Not Required: PROPERTY, sale of movable, conversion or
a. When no one will be injured thereby (NO deposit of credit instruments, or investment of
PREJUDICE). (See Art. 585). Example: in the cash or prots.
usufruct over a periodical income or life
annuity. Provided naked owner consents for On the Rights of the Usufructuary:
the law says may. (Art. 585).
b. When there is waiver by the naked owner 1. The usufructuary cannot possess the property till
(See 4 Manresa 464-465), or there is a he gives the security.
stipulation either in a will or by contract. 2. The usufructuary cannot administer the property,
hence, he cannot execute a lease thereon.

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3. The usufructuary cannot collect credits that have him to demand its administration without prejudice
matured, nor invest them unless the Court or the to the usufruct. (Art. 610).
naked owner consents. (Art. 599).
In the exercise of prudent care, the usufructuary is
NOTE: This No. 3 applies also even if the
required to make ORDINARY repairs (Art. 592) and
usufructuary is EXEMPTED from giving security.
to notify the naked owner of urgency of
(Art. 599).]
EXTRAORDINARY REPAIRS (Art. 593), and of any
4. But the usufructuary can alienate his right to the
acts which may prove detrimental to ownership.
usufruct (since failure to give the security did not
(Art. 610). Moreover, the usufructuary answers for
extinguish the usufruct). The grantee may of
damage caused by the fault or negligence of his
course possess, the moment he gives security.
alienee, grantee, agent, or lessee. (See Art. 590).
NOTE: The receiver or administrator (a third person)
is entitled naturally to administration expenses.
NOTE: If the movable be sold, the cash belongs to SUBSTITUTE
the naked owner but the interest thereon belongs to
the usufructuary. (Art. 586, par. 2) The usufructuary is made liable for the acts of the
substitute (fault, negligence, or even willful deceit).
Thus, while the substitute answers to the
CAUCION JURATORIA usufructuary, the usufructuary answers to the naked
The promise under oath is called a caucion
juratoria a sworn duty to take good care of the Even when there is a sub-usufructuary, it is still the
property and return same at the end of the usufruct. usufructuary who answers to the naked owner for
It takes the place of the bond or security and is ordinary repairs, taxes on the fruits, etc.
based on necessity and humanity as when a poor
family acquires by inheritance, the usufruct of a
badly needed house. USUFRUCT OF LIVESTOCK

Requisites before the Caucion Juratoria is allowed When the usufruct is on a FLOCK and HERD of
livestock (not two or three animals merely).
1. Proper court petition
2. Necessity for delivery of furniture, implements or Rules in case of FRUITFUL or PRODUCTIVE Livestock
house included on the usufruct 1. Where there is obligation to REPLACE
3. Approval of the court a. if some animals die from natural causes;
4. Sworn promise b. or if some animals are lost due to rapacity of
NOTE: Art. 587 does not apply when the beasts of prey.
usufructuary is exempted from giving security. It NOTE: Notice that even though the cause be
applies only if he is required but cannot afford to fortuitous, there is the duty to replace. This is
give the security. because such loss is more or less EXPECTED
and is NATURAL. (The remains of the dead
NOTE: Once the bond is given, there is retroactivity. animals belong to the usufructuary.)].
For example, usufruct commences on January 3, NOTE: Replacement should be made from the
2008 but security was delivered on March 3, 2008, YOUNG produced. Hence, if 15 cattles died,
the usufructuary is entitled to all the proceeds and but only 3 were produced, only 3 must be
benefits of the usufruct from January 3. replaced; hence also, if 15 died, but 20 were
produced, the excess of 5 belong to the
usufructuary since they are FRUITS.
DUTY OF USUFRUCTUARY TO TAKE CARE OF NOTE: If 15 died, and 15 were produced, but
PROPERTY only 12 remain because the 3 were SOLD, the
Although care of a pater familias is required (Art. usufructuary must still replace the remaining
589), still a usufruct is not extinguished by bad use. three, even in cash, otherwise he could, by his
Bad use, if owner suffers considerable injury, entitles own act, defeat the law.

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NOTE: Although the law says each year, this end of the usufruct should be borne by the naked
does not necessarily mean that the owner).
computation will have to be done yearly. It is 4. They must have happened with or without the
sufcient to sum up the losses and produce fault of the usufructuary.
for all the time the usufruct may last. For
there can be no conceivable reason why NOTE: If he was at FAULT, the usufructuary must pay
computation should be done yearly. indemnity for damages.
2. Where there is NO obligation to replace
QUERY: Can usufructuary exempt himself from the
a. if there is a total loss of the animals because
duty to make or pay for the necessary repairs by
RENOUNCING the usufruct?
(like some contagious disease or any other
uncommon event, provided the usufructuary ANSWER:
has NO FAULT).
b. if there is a partial loss (under the same 1. If he had NO fault yes, but he must surrender
conditions). the fruits received.
NOTE: Since there is no obligation to replace, 2. If he was at FAULT no. He would still be liable
it follows that even if all should perish, the for damages.
remains (bones, carcass) must be delivered to
the owner. The same is true in case of partial
loss. The remains, not the remainder, must be Remedy if Usufructuary Does Not Make the
given to the naked owner. Necessary Repairs
NOTE: In case of partial loss, the usufruct
continues on the remainder, provided that Remedy of naked owner if usufructuary does not
the loss be by accident and without fault of make the necessary repairs: If naked owner had
the usufructuary. demanded the repair, and the usufructuary still fails
NOTE: If the partial loss be because of the to do so, the owner may make them (personally or
usufructuarys FAULT, does the usufruct thru another) at the expense of the usufructuary.
continue on the remainder? ANSWER:
Manresa says yes because bad use or abuse
does not extinguish the usufruct, without EXTRAORDINARY REPAIRS
prejudice however to the right of the naked Article 593 of the Civil Code
owner to demand administration by him.
Extraordinary repairs shall be at the expense of the
owner. The usufructuary is obliged to notify the
DUTY TO MAKE ORDINARY REPAIRS owner when the need for such repairs is urgent.

Article 592 of the Civil Code

The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct. 1. those caused by natural use but NOT NEEDED for
By ordinary repairs are understood such as are 2. those caused by ABNORMAL or EXCEPTIONAL
required by the wear and tear due to the natural use circumstances and needed for preservation (as
of the thing and are indispensable for its when an earthquake renders the stairs of a
preservation. Should the usufructuary fail to make house unsafe, or when lightning splits a table
them after demand by the owner, the latter may into two).
make them at the expense of the usufructuary. 3. those caused by ABNORMAL or EXCEPTIONAL
circumstances but are NOT NEEDED for
1. They are required by NORMAL or NATURAL use. preservation.
2. They are needed for preservation.
3. They must have occurred DURING the usufruct Who Should Pay Extraordinary Repairs?
(because those occurring before and after the 1. those in 1 the NAKED OWNER (whether or not
he is notied by the usufructuary).

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NOTE: Observe however that the law does NOT between the value BEFORE and the value AFTER
require the naked owner to make them. If he the repairs).
does not want to, it is also all right. What is 2. right of RETENTION till paid (Art. 612)
important is that if made, the expenses must be (reimbursement is to be made only at the END of
borne by the naked owner. the usufruct).
NOTE: Also the clause If the owner should make
the extraordinary repairs. This means that he is
not required by the law to make them, nor can WHAT CHARGES OR TAXES THE USUFRUCTUARY
he be compelled by the usufructuary to make MUST PAY
them. (See 4 Manresa 488489).
1. the annual charges (on the fruits)
2. those in 2 the NAKED OWNER (whether or not
2. the annual taxes on the fruits
he is notied).
3. theoretically, also the annual taxes on the land
NOTE: Again here, he cannot be compelled by
(including the real estate tax)
the usufructuary to make them, but HERE the
usufructuary is allowed to make them, with the
right to get the increase in value and the right of
Taxes which are Imposed Directly on the Capital
RETENTION (till paid) at the termination of the
usufruct, provided that there was NOTIFICATION The naked owner pays for taxes imposed directly on
by the usufructuary and FAILURE to repair by the the capital (provided they are not annual
naked owner. example, the estate tax).
3. those in 3 the NAKED OWNER (whether or not
he has been notied). (Here the usufructuary
cannot compel the naked owner to make them, 1. If paid by naked owner, he can demand legal
nor is the usufructuary allowed to make them, interest on the sum paid. (Reason: The
even if the naked owner has failed to make them. usufructuary is enjoying the property).
This is because there is no necessity for 2. If advanced (in the meantime) by the
preservation here.). usufructuary, said usufructuary
a. should be REIMBURSED the amount paid
NOTE: The naked owner generally pays for the
without legal interest.
extraordinary repairs because it is his property.
b. is entitled to RETENTION (till paid). (Art. 612).
NOTE: The right of the naked owner if he makes the NOTE: Reimbursement should be made, not
extraordinary repairs is he can demand from the immediately after advancing, but only at the
usufructuary the legal interest on the amount for the TERMINATION of the usufruct, provided
duration of the usufruct; because the usufructuary advance had been made VOLUNTARILY. If the
has really benefited, otherwise the thing may not usufructuary had been forced to pay (as when
properly be used. the tax had been deducted from his share of
the fruits, reimbursement, with damages,
should be made immediately thereafter).
Requisites before Usufructuary is Allowed to Make
Extraordinary Repairs
1. there must be due notification to naked owner of
2. the naked owner failed to make them 1. A distinction must be made as to whether there
3. the repair us needed for preservation was a stipulation to pay for the debts of the
naked owner, or not.
Right of Usufructuary who has Made Extraordinary
2. There being no stipulation regarding the
payment of debts, the donee shall be responsible
1. get increase in value (PLUS Value) (Art. 594) or therefor only when the donation has been made
get reimbursement of expenses. (Art. 612). (To in fraud of creditors.
compute increase in value, get the difference The donation is always presumed to be in
fraud of creditors, when at the time thereof, the

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donor did not reserve sufcient property to pay 2. or by payment of a periodical pension equivalent
his debts prior to the donation. (Art. 759, Civil to the loss;
Code). 3. or in any other similar way.
3. When the donation imposes upon the donee the
Pledge of a Movable
obligations to pay the debts of the donor, if the
clause does not contain any declaration to the It is believed that although Art. 600 speaks only of a
contrary, the former is understood to be liable to mortgaged immovable, it can also apply, by analogy,
pay only the debts which appear to have been to a pledged movable, provided that the movable is
previously contracted. In no case shall the donee in the usufructuarys possession, since in the law of
be responsible for debts exceeding the value of pledge, it is essential that the thing pledged be
the property donated, unless a contrary intention placed in the possession of the creditor, or a third
clearly appears. (Art. 758, Civil Code). person by common agreement. (See Art. 2093).
Article 598 applies:

1. if the usufruct is a UNIVERSAL ONE (constituted UNIVERSAL USUFRUCT

on the WHOLE of a patrimony). If the usufruct be a UNIVERSAL one (as when the
2. and the naked owner usufruct involves the entire patrimony, some objects
a. has debts of which are mortgaged, the more applicable article
b. or is obliged to make periodical payments is Art. 598 with its cross-references to Arts. 758 and
(whether or not there be known capital). 759). Thus if no stipulation for payment by the
usufructuary is made, and the usufruct was not
created to defraud creditors, the usufructuary has
NO DUTY to pay off the debt.
1. If usufructuary has given security, collection and
investment can be done without the approval of
the court or of the naked owner. WHEN NOTIFICATION BY THE USUFRUCTUARY IS
2. If usufructuary has NOT given security, or when REQUIRED
he is EXEMPTED or when there was only a
1. if a third party commits acts prejudicial to the
CAUCION JURATORIA, collection and investment
rights of ownership (both rights of the naked
can be done only WITH the approval of the court
owner and rights of the usufructuary, in the
or of the naked owner.
latter case, insofar as the naked owner is also
affected as in the case of a disturbance to the
possession) (See 4 Manresa 516-519);
2. if urgent repairs are needed (Art. 593);
Usufruct of a mortgage land. 3. if an inventory (at the beginning of the usufruct)
is to be made. (Art. 583).
QUESTION: A mortgaged his land to B and gave its
usufruct to C. Since A did not pay his debt, B Effect of Non-Notication
foreclosed the mortgage, and at the foreclosure sale,
D bought the property. Can C demand anything from 1. In 1, the usufructuary is liable for damages, as if
A? they had been caused thru his own fault. (Art.
601, last part).
ANSWER: Yes, because A is held by law liable for the 2. In 2, the usufructuary cannot even make the
loss. extraordinary repairs needed. (See Art. 594).
3. In 3, the inventory can go on, but the naked
owner may later point out discrepancies and
How Liability of the Naked Owner May Be omissions in the inventory.
1. by constituting a usufruct over an equivalent

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1. Example: If the usufruct is for 5 years, it ends at
Article 602 of the Civil Code the lapse of 5 years, UNLESS the usufructuary
dies prior to the end of 5 years, since as a rule,
The expenses, costs and liabilities in suits brought
the utmost period for which a usufruct can
with regard to the usufruct shall be borne by the
endure, if constituted in favor of a natural person
is the lifetime of the usufructuary.
2. If the usufruct is on real property, or on a real
right on real property, the period must be
recorded to bind third persons. (Art. 709).
Article 603 of the Civil Code 3. The term should not exceed fty years if the
usufructuary is a juridical person (town,
Usufruct is extinguished:
corporation, or association). Premature
1. By the death of the usufructuary, unless a abandonment or dissolution of the juridical
contrary intention clearly appears; entity extinguishes the usufruct. (Art. 605).
2. By the expiration of the period for which it was
constituted, or by the fulllment of any
resolutory condition provided in the title creating FULFILLMENT OF THE RESOLUTORY CONDITION
the usufruct;
1. Example: A is the usufructuary of land unless he
3. By merger of the usufruct and ownership in the
marries X. Marriage to X ends the usufruct.
same person;
2. Another example: A testator gave a parcel of land
4. By renunciation of the usufructuary;
to his son (in naked ownership) and to a friend
5. By the total loss of the thing in usufruct;
(in usufruct as long as the son remained the
6. By the termination of the right of the person
owner of the land). If the son sells the land to
constituting the usufruct;
another, the usufruct in favor of the friend is
7. By prescription.
3. If the usufruct is on real property or on real right
over real property, the resolutory condition must
be registered to bind third persons. (Art. 709).
GENERAL RULE: Death of the usufructuary ends the
H was the usufructuary of land owned by X. X died,
1. in the case of multiple usufructs [here it ends on leaving in his will, the naked ownership of the land
the death of the last survivor. (Art. 611).]; to H. The usufruct is extinguished because now, H is
2. in case there is a period xed based on the both the naked owner and the usufructuary.
number of years that would elapse before a
person would reach a certain age (Example: until
X who is now 25 years old will become 40 years RENUNCIATION OR WAIVER BY THE
old, where the period is 15 years), UNLESS the USUFRUCTUARY
period was expressly granted only in
1. Example: A is the usufructuary of Bs land. Later,
consideration of the existence of such person, in
A waived his usufruct willingly and voluntarily.
which case it ends at the death of said person
The usufruct is now extinguished.
(Art. 606);
2. Renunciation, according to Manresa, must be
3. in case the contrary intention CLEARLY (expressly
made expressly. It is submitted, however, that
or impliedly) appears.
since this partakes of a remission or donation, it
Example: A was made usufructuary only in order
can be made expressly or impliedly, as long as it
that he could enable his son to get a college
is done clearly, with intent to renounce. (See Art.
degree. Even if A dies before the son graduates,
1270). When made expressly, the formalities of a
the usufruct is deemed to continue.
donation must be complied with. (Art. 1270).

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3. Does renunciation need the naked owners 3. Death of the naked owner does not extinguish
consent? Navarro Amandi says no, since here, the usufruct for the rights of the naked owner
there is a mere abandonment of ones own right. are transmitted to his own heirs.
It is believed, however, that renunciation is not
necessarily a mere abandonment, but an
abandonment in favor of another. Thus, if A is PRESCRIPTION
the usufructuary and B is the naked owner, As
1. This refers to acquisitive prescription by a
renunciation makes B the complete owner,
stranger either of the usufruct (here, the
effecting, either a donation or a remission, both
usufructuary is no longer entitled to the usufruct)
of which are acts of liberality, requiring the
or of the naked ownership (for here, the right of
recipients consent. (See Arts. 1270 and 725). In
the person constituting the usufruct has been
the example given, it is wrong to say that As
terminated or resolved). (See No. 6, Art. 603).
renunciation did not make B full owner. It is
2. Mere non-user by the usufructuary of the
wrong to say so, because if B is not yet the full
usufruct does not terminate the usufruct, unless
owner, it means that the usufruct still exists, but
it is also a renunciation.
it is clear that renunciation extinguishes the
usufruct. (Art. 603).
4. If the renunciation is made gratuitously and in
fraud of creditors, said creditors can rescind the OTHER CAUSES FOR THE EXTINGUISHMENT OF
renunciation, to the extent of their credits. (Arts. USUFRUCT
1381, 1384, 1387). 1. Annulment
2. Rescission
3. mutual withdrawal
TOTAL LOSS OF THE THING IN USUFRUCT 4. legal causes ending legal usufruct, as when
attainment of the age of majority extinguishes
1. Total loss ends the usufruct, but not partial loss,
parental usufruct.
for in the latter case, the usufruct, continues on
the remaining part. (Art. 604).
a. ABUSE or MISUSE of the usufruct does not
2. For total loss of a building (whether or not the
extinguish it, unless by virtue of such abuse
land is included in the usufruct; and whether or
or misuse, the thing has been totally lost.
not the building has been insured). (See Arts.
(See Art. 610).
b. Non-fulllment of a suspensive condition
3. For legal loss (as in the case of expropriation).
does not extinguish usufruct, for the simple
(See Art. 609).
reason that the usufruct never came into
1. Example: A thought he was the owner of a
parcel of land. A gave its usufruct to B for 5 years. Article 604 of the Civil Code
If at the end of 2 years, C, the real owner gets the If the thing given in usufruct should be lost only in
land, it necessarily follows that Bs usufruct is part, the right shall continue on the remaining part.
extinguished, without prejudice of course to B
being allowed to continue by C. (See 4 Manresa
2. If the usufructuary has a sub-usufructuary, the
sub-usufruct ends at the time the usufruct is Under Sec. 11 of the Corporation Code, 50 years are
extinguished, because by that time, the right of allowed for the existence of a private corporation; in
the usufructuary to constitute the sub-usufruct the case of towns or municipal corporations, a
has ended. If the sub-usufructuary dies ahead of period longer than 50 years may militate against the
the usufructuary, the sub-usufruct ends, unless a public policy which prohibits the perpetual
contrary intention appears. entailment of property.

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Note the effect of abandonment of the town or the 1. The usufruct on the building is ended, but the
dissolution of the corporation or association. usufruct on the land continues. (See also Art.
NOTE: Article 605 are not applicable to trusts. 2. Therefore the usufructuary is still entitled to the
use of the land and the use of whatever materials
A THRID PARTY REACHES A CERTAIN AGE 3. Therefore, also, if the naked owner wants to
Article 606 of the Civil Code rebuild but the usufructuary refuses, it is the
usufructuary who prevails for the use of the land
A usufruct granted for the time that may elapse is still his for the remainder of the period.
before a third person attains a certain age, shall
Rules on usufruct on the building alone (but the
subsist for the number of years speci ed, even if the
building is destroyed before the termination of 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. 1. The usufruct on the building ends, but the
usufructuary can still make use of whatever
EXAMPLE: A gave B his land in usufruct until C materials of the house remain.
becomes 40 years old. A constituted the usufruct 2. Also, the usufructuary is entitled to the use of the
when C was only 20 years old. This means that the land. (Why? Because although there was no
usufruct should last for 20 years, even if C dies usufruct on the land, still it cannot be denied that
before attaining the age of 40. If therefore C dies at in using the building before, he was also
the age of 30, the usufruct in Bs favor generally automatically using the land.)
continues. 3. But precisely because there was no usufruct on
the land, the naked owner has preferential right
EXCEPTION: If in the example given, B was made the to its use. (Thus, if the naked owner wants to
usufructuary only because he had to support C, it rebuild, but the usufructuary refuses, it is the
follows that the usufruct was expressly constituted naked owner who should prevail). [Thus also, the
only in consideration of the existence of C. Thus, on law states that if the owner wants to construct
Cs death, the usufruct ends. another building (or to rebuild), he (the naked
owner) 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
Article 607 of the Civil Code (remaining part of the period) of the usufruct the
interest (legal interest) upon the sum equivalent
If the usufruct is constituted on immovable property
of which a building forms part, and the latter should to the value of the land and of the materials.]
be destroyed in any manner whatsoever, the NOTE: There should be interest
a. on the materials because the usufruct was
usufructuary shall have a right to make use of the
on the building (including its materials);
land and the materials.
b. on the land because although there was no
The same rule shall be applied if the usufruct is usufruct on the land, still use of the building
constituted on a building only and the same should necessitated automatic use of the land.
be destroyed. But in such a case, if the owner should
wish to construct another building, he shall have a NOTE: The person at fault must indemnify.
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. Article 608 of the Civil Code
Rules on usufruct on both building and land (but If the usufructuary shares with the owner the
the building is destroyed in any manner whatsoever insurance of the tenement given in usufruct, the
before the expiration of the period of the usufruct) former shall in case of loss, continue in the

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enjoyment of the new building, should one be entitled only to the legal interest (fruits) on the
constructed, or shall receive the interest on the indemnity, if no replacement is made.
insurance indemnity if the owner does not wish to
Should the usufructuary have refused to contribute EFFECT OF BAD USE OF THE PROPERTY HELD IN
to the insurance, the owner insuring the tenement USUFRUCT
alone, the latter shall receive the full amount of the Article 610 of the Civil Code
insurance indemnity in case of loss, saving always
the right granted to the usufructuary in the A usufruct is not extinguished by bad use of the
preceding article. 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
RULES IN CASE OF EXPROPRIATION himself to pay annually to the usufructuary the net
proceeds of the same, after deducting the expenses
Article 609 of the Civil Code and the compensation which may be allowed him for
Should the thing in usufruct be expropriated for its administration.
public use, the owner shall be obliged either to Effect of Bad Use of the Property held in Usufruct
replace it with another thing of the same value and
of similar conditions, or to pay the usufructuary the 1. BAD use which does not cause considerable
legal interest on the amount of the indemnity for the injury to the naked owner. Rules: Usufruct
whole period of the usufruct. If the owner chooses continues; naked owner cannot demand
the latter alternative, he shall give security for the administration by himself.
payment of the interest. 2. BAD use which causes considerable injury to
the naked owner (not necessarily to the thing).
Rules (Examples: No security; no other property of
1. If naked owner alone was given the indemnity, usufructuary.)
he has the OPTION: Rules: Usufruct continues; but naked owner can
a. to replace with equivalent thing DEMAND delivery to and administration by him, but
b. or to pay to the usufructuary legal interest he will be obliged to pay NET PROCEEDS to
on the indemnity. (OPTION [2] requires usufructuary (that is, naked owner gets
SECURITY given by the naked owner for the administration fee and administration expenses).
payment of the interest.) (Art. 609). NOTE: Being administrator merely, he cannot sell or
2. IF BOTH the naked owner and the usufructuary alienate the right to the usufruct, though he may still
were separately given indemnity, each owns the alienate the property, without prejudice to the
indemnity given to him, the usufruct being totally usufruct.
3. If usufructuary alone was given the indemnity, he MULTIPLE USUFRUCT
must give it to the naked owner and compel the
latter to return either the interest or to replace Article 611 of the Civil Code
the property. He may even deduct the interest A usufruct constituted in favor of several persons
himself, if the naked owner fails to object. living at the time of its constitution shall not be
NOTE: Receipt by the usufructuary of the extinguished until the death of the last survivor.
expropriation indemnity (in whole or in part)
should not be considered proof of adverse Rules in Case of a Multiple Usufruct
possession, since after all, he is entitled to either 1. If constituted simultaneously, it is evident that all
the interest thereon or to a replacement. the usufructuaries must be alive (or at least
NOTE: In Quirante case, the Court of Appeals conceived) at the time of constitution. Here, it is
made an error in stating that the usufructuary the death of the last survivor which, among other
was entitled to the WHOLE of the indemnity if no causes, terminates the usufruct.
replacement is made. The correct rule is, he is Example:

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If a usufruct is constituted in favor of 14 1. must cancel the security or mortgage (provided

usufructuaries, and 3 of them die, will 3/14 of the the usufructuary has complied with all his
usufruct (corresponding to the share of the 3 obligations).
dead usufructuaries) accrue to the naked owner 2. must in case of rural leases, respect leases made
or will they accrue in favor of the surviving 11 by the usufructuary, till the end of the
usufructuaries? agricultural year.
Answer: 3. make reimbursements to the usufructuary in the
They will accrue in favor of the 11 surviving proper cases.
usufructuaries for the simple reason that the
usufruct continues up to the death of the last
2. If constituted successively (one after the other).
Art. 611 also applies. [However, to constitute MAXIMA HEMEDES VS. COURT PF APPEALS
successive usufructs, it is essential that
a. If the successive usufructs were constituted
by virtue of a DONATION, all the donees- Facts: The parcel of land in dispute was originally
usufructuaries must be living at the time of owned by the late Jose Hemedes, father of Maxima
the constitution-donation of the usufruct. Hemedes and Enrique Hemedes. Jose Hemedes
(See Art. 756). executed a document entitled Donation Inter Vivos
b. If the successive usufructs were constituted with Resolutory Conditions, whereby he conveyed
by virtue of a last WILL, there should only be ownership over the subject land in favor of his third
two successive usufructuaries; and both must wife, Justa Kausapin. Such donation was accepted by
have been alive (or at least conceived) at the the latter.
time of the testators death. (See Arts. 863
and 869). Justa Kausapin convey and transfer the ownership
and title of the subject land to her designee, Maxima
Hemedes, except the possession and enjoyment of
RIGHTS AND OBLIGATIONS AT THE TERMINATION the sad property which shall remain vested in her
OF THE USUFRUCT during her lifetime, and upon the her death,
possession and enjoyment of the property shall
Article 612 of the Civil Code
automatically be transferred to Maxima Hemedes.
Upon the termination of the usufruct, the thing in Original certificate of title was issued to the latter in
usufruct shall be delivered to the owner, without 1962.
prejudice to the right of retention pertaining to the
Maxima Hemedes executed a real estate mortgage
usufructuary or his heirs for taxes and extraordinary
over the subject property in favor of the R&B
expenses which should be reimbursed. After the
Insurance to serve as security of the loan they
delivery has been made, the security or mortgage
obtained from the latter. Failure to pay, R&B
shall be cancelled.
Insurance extrajudicially foreclosed the mortgage.
On the Part of the Usufructuary The land was sold at a public auction and R&B
Insurance as the highest bidder, certificate of sale
1. must RETURN the property to the naked owner,
was issued in its favor. Since Maxima Hemedes failed
but he has the rights
to redeem such property within the redemption
2. to RETAIN the property till he is reimbursed for
period, a certificate of title was issued in favor of
TAXES ON THE CAPITAL (which had been
R&B Insurance with the annotation of usufruct in
advanced by him) and indispensable
favor of Justa Kausapin in 1965.
as there has been an increase in the value). Meanwhile, Justa Kausapin executed a Kasunduan in
3. to remove removable improvements or set them 1971 whereby she transferred the same land to her
off against damages he has caused. stepson Enrique Hemedes. The latter obtained two
NOTE: The removal may be done either during or declarations of real propertyrealty taxes on the
after the usufruct. property, and being the owner of the property in the
On the Part of the Naked Owner

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cadastral survey and in the records of the Ministry of of its execution by the donor will not suffice for the
Agrarian Reform Office. purpose.
In 1969, Enrique Hemedes sold the property to The two declarations of real property by Enrique D.
Dominium Realty and Construction Corporation, who Hemedes cannot defeat a certificate of title, which
leased it to Asia Brewery in 1981. The latter is an absolute and indefeasible evidence of
constructed two warehouses. ownership of the property in favor of the person
whose name appears therein.
Upon learning of the two warehouses, R&B
Insurance sent a letter to the Asia Brewery that the In upholding the deed of conveyance in favor of
former is the owner of the property. Maxima Maxima Hemedes, we must concomitantly rule that
Hemedes as the rightful owner of the subject Enrique D. Hemedes and his transferee, Dominium,
property has the right to appropriate Asia Brewerys did not acquire any rights over the subject
constructions. Hence, Dominium and Enrique property. Justa Kausapin sought to transfer to her
Hemedes filed a complaint with the CFI. stepson exactly what she had earlier transferred to
Maxima Hemedes the ownership of the subject
CFI ruled in favor of Dominium and Enrique
property pursuant to the first condition stipulated in
Hemedes. CA affirmed the same. Hence, this
the deed of donation executed by her
husband. Thus, the donation in favor of Enrique D.
Maxima Hemedes argues that Justa Kausapin is Hemedes is null and void for the purported object
obviously biased witness as she has been dependent thereof did not exist at the time of the transfer,
upon Enrique Hemedes for her daily subsistence, having already been transferred to his sister.
and that she was propbably influenced by the same Similarly, the sale of the subject property by Enrique
to execute the Kasunduan in its favor. D. Hemedes to Dominium is also a nullity for the
latter cannot acquire more rights than its
Public respondent contended that the deed
predecessor-in-interest and is definitely not an
executed by Justa Kausapin in favor of Maxima
innocent purchaser for value since Enrique D.
Hemedes was sham and spurious and has no
Hemedes did not present any certificate of title upon
evidentiary value under the law. Such deed was in
which it relied.
English language and that it was not explained to
Justa Kausapin although she could not read nor As to Usufruct:
understand English. Hence, Maxima Hemedes failed
There is no doubt that the owner may validly
to discharge her burden.
mortgage the property in favor of a third person and
Issue: Which of the conveyances by Justa Kausapin the law provides that, in such a case, the
effectively transferred ownership over the subject usufructuary shall not be obliged to pay the debt of
land. the mortgagor, and should the immovable be
attached or sold judicially for the payment of the
Held: It has been held by this Court that mere
debt, the owner shall be liable to the usufructuary
preponderance of evidence is not sufficient to
for whatever the latter may lose by reason thereof.
overthrow a certificate of a notary public to the
effect that the grantor executed a certain document
and acknowledged the fact of its execution before
him. To accomplish this result, the evidence must be
so clear, strong and convincing as to exclude all JOSEFA FABIE VS. JOSE GUTIERREZ DAVID
reasonable controversy as to the falsity of the
Facts: Petitioner Josefa Fabie is the usufructuary of
certificate, and when the evidence is conflicting, the
the income of certain houses under the ninth clause
certificate will be upheld. In the present case, we
of the will of the deceased Rosario Fabie y Grey. The
hold that private respondents have failed to
owner of the property in question is the
produce clear, strong, and convincing evidence to
respondent Juan Grey.
overcome the positive value of the Deed of
Conveyance of Unregistered Real Property by Beginning with the month of September 1944, the
Reversion a notarized document. The mere denial usufructuary Fabie shall collect all the rents of the
properties in question. In June 1945, Fabie

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commenced an action of unlawful detainer against As a corollary to her right to all the rent, to choose
the respondent Ngo Boo Soo, who occupies the the tenant, and to fix the amount of the rent, she
premises in disputed properties, alleging that necessarily has the right to choose herself as the
defendant Ngo Boo Soo, without the consent of tenant thereof, if she wishes to.
Fabie and contrary to their agreement, had
Further, Juan Grey has just been acting as an agent
subleased the property to another Chinese. Fabie
of the usufructuary under an agreement with the
refused based on the fact that she badly needs the
said house to live in, as her house was burned by the
Japanese. Ngo Boo Soo was notified to leave the said The court find that the action instituted by Fabie
premises but he refused. Hence, Fabie prayed for a against Ngo Boo Soo is one of unlawful detainer,
judgment of eviction and for unpaid rentals. which is within the original jurisdiction of the
municipal court. Hence, the court ordered the CFI to
Defendant answered alleging that he was and since
try and decide the case on the merits.
1908 had been a tenant of the premises in question,
and that he was renting it from its owner and
administrator Juan Grey; that Fabie is merely the
usufructuary of the income therefrom, and her only
right as usufructuary of the income is to receive the
whole amount of such income, and that she has no Facts: At the heart of this controversy is a parcel of
right or authority to eject tenants. land located in Davao City and registered in the
name of petitioner Mercedes Moralidad.
Juan Grey intervened in the unlawful detainer suit,
alleging in his complaint in intervention that he is the In her younger days, petitioner taught in Davao City,
sole and absolute owner of the premises in question, Quezon City and Manila. While teaching in Manila,
and the Fabie is the usufructuary of the income of she had the good fortune of furthering her studies at
said premises. the University of Pennsylvania, U.S.A. While
schooling, she was offered to teach at the
CFI dismissed the case filed by Fabie on the ground
Philadelphia Catholic Archdiocese, which she did for
that the main issue is not a mere question of
7 years. Thereafter, she worked at the Mental Health
possession but precisely who is entitled to
Department of said University for the next 17 years.
administer the property subject matter of this case,
which are issues beyond the jurisdiction of the During summer vacation, petitioner would come
municipal court. Hence, this petition. home to the Philippines, and usually stay in the
house of her niece, herein respondent, Arlene
Issue: Whether or not Fabie, being usufructuary
who has the right to manage or administer the
property, has also the right to select and oust As the NPA rebels infested Mandug, Davao City,
tenants in the premises in question. where the house of Arlene Pernes stood up, shocked
and saddened, petitioner immediately send money
Held: Under the spirit of the will and stipulation of
to Arlenes older sister, with instructions to look for
the parties, Fabie, as usufructuary has the right to
a lot in Davao City where Arlene and her family could
administer and at the same time has the right to
transfer and settle down.
select and oust tenants from the premises in
question. Petitioner acquired the lot property initially for the
purpose of letting Arlene move from Mandug to
Fabie was made by the usufructuary during her
Davao City proper but later she wanted the property
lifetime of the income of the property in question,
to be also available to any of her kins wishing to live
the court find that the said usufructuary has the
and settle in Davao City.
right to administer the property in question. All the
acts of administration to collect the rents for Petitioner executed a document to express his
herself, and to conserve the property by making all intention regarding the lot property, she stated that
necessary repairs and paying all the taxes, special it is her desire that Mr. and Mrs. Diosdado Pernes
assessments, and insurance premiums thereon may build their house therein and stay as long as
were by said judgment vested in the usufructuary. they like; and that anybody of my kins who wishes
to stay on the aforementioned real property should

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maintain an atmosphere of cooperation, live in property in question was not, as ruled by the latter
harmony and must avoid bickering with one court, by mere tolerance of the petitioner but rather
another. by her express consent.
Petitioner retired and came back in the Philippines Therefrom, petitioner went to the CA, which
to stay with the respondents on the house they affirmed the decision of the RTC, holding that Art.
build on the subject property. In the course of time, 448 and 546 are still premature to apply considering
their relations turned sour because members of the that the issue of whether respondents right to
Pernes family were impervious to her suggestions possess a portion of petitioners land had already
and attempts to change certain practices expired or terminated was not yet resolved. Further,
concerning matters of health and sanitation within the rights of the parties is the law on usufruct but
their compound. petitioner failed to establish. Hence, this petition.
Petitioner brought the matter to the local barangay Issue: Whether or not the rights of the parties is one
lupon where she lodged a complaint for slander, of usufruct.
harassment, threat and defamation against the
Held: The Court agrees with the CA that what was
Pernes Family. The lupon apparently ordered Pernes
constituted between the parties herein is one of
family to vacate the petitioners property but not
usufruct over a piece of land, with the petitioner
after they are reimbursed for the value of the house
being the owner of the property upon whom the
they built therein. However, the parties cannot
naked title thereto remained and the petitioners kin
agree on the amount, thus prolonging the impasse
including respondents as usufructuaries. In the case
between them.
at bar, petitioner made known her intention to give
For the meanwhile, other ugly incidents interspersed respondents and her other kins the right to use and
with violent confrontations. Petitioner sustained to enjoy the fruits of her property. Petitioner had
cuts and wounds when Arlene pulled her hair, hit her given respondents the given the right "to build their
on the face, neck and back, while her husband own house" on the property and to stay thereat "as
Diosdado held her, twisting her arms in the process. long as they like."
Petitioner filed administrative case before the Article 603 provides the mode of extinguishment.
Regional Office of the Ombudsman against the Under par. 2 thereof, by expiration of the period for
spouses Pernes as they are government employees. which it was constituted, or by the fulfillment of
However, it did not prosper. any resolutory condition provided in the title
creating the usufruct. In the instant case, the
Petitioner filed with the MTCC an unlawful detainer
occurrence of any of the following: the loss of the
suit against the respondent spouses, and alleged
atmosphere of cooperation, the bickering or the
that she is the registered owner of the land on which
cessation of harmonious relationship
the respondents built their house.
between/among kin constitutes a resolutory
Respondent, in their defense, alleged having entered condition which, by express wish of the petitioner,
the property in question, building house thereon and extinguishes the usufruct.
maintaining the same as their residence with
The Court rules that the continuing animosity
petitioners full knowledge and express consent. In
between the petitioner and the Pernes family and
fact, petitioner had expressed it that respondent
the violence and humiliation she was made to
declared that they can stay thereat for as long as
endure, despite her advanced age and frail
they like.
condition, are enough factual bases to consider the
MTCC declared that respondents continued usufruct as having been terminated.
possession of the premises turned unlawful upon
Art. 579. The usufructuary may make on the
their receipt of the demand to vacate, such
property held in usufruct such useful improvements
possession being merely at petitioners tolerance,
or expenses for mere pleasure as he may deem
and sans any rental.
proper, provided he does not alter its form or
Dissatisfied, the respondent spouses appealed to substance; but he shall have no right to be
the RTC, wherein it reversed the decision of the indemnified therefor. He may, however, remove
MTCC holding that respondents possession of the such improvements, should it be possible to do so

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without damage to the property. In the instant case, EASEMENT

respondents will have to be ordered to vacate the
Article 613 of the Civil Code
premises without any right of reimbursement. If the
rule on reimbursement or indemnity were An easement or servitude is an encumbrance
otherwise, then the usufructuary might, as an author imposed upon an immovable for the benefit of
pointed out, improve the owner out of his property. another immovable belonging to a different owner.
The respondents may, however, remove or destroy
The immovable in favor of which the easement is
the improvements they may have introduced
established is called the dominant estate, that which
thereon without damaging the petitioners
is subject thereto, the servient estate.
Article 614 of the Civil Code
Servitudes may also be established for the benefit of
a community, or of one or more persons to whom
the encumbered estate does not belong.
NOTE: Article 613 defines a real easement while
Article 614 speaks of personal easement. Both
however are real rights, but will prejudice third
persons only if duly registered.

1. A real right therefore an action in rem is
possible against the possessor of the servient
2. Imposable only on anothers property.
3. It is a jus in re aliena (a real right that may be
alienated although the naked ownershipnuda
proprietasis maintained).
4. It is a limitation or encumbrance on the servient
estate for anothers benefit.
a. It is essential that there is a benefit
otherwise there would be no easement.
b. It is not essential that the benet be
exercised. What is vital is that it can be
c. It is not essential for the benet to be very
d. The benet should not be so great as to
completely absorb or impair the usefulness
of the servient estate, for then, this would
be not merely an encumbrance or a
limitation but the cancellation of the rights
of the servient estate.
e. The benet or utility goes to the dominant
estate (not necessarily to the owner of the
dominant estate). There is limited use but
there is no possession.

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f. The exercise is naturally restricted by the descending from upper estates to ow into
needs of the dominant estate or of its them [lower estates].
owner. personal easement for the benet of one
g. Easements, being an abnormal restriction on or more persons or of a community (not the
ownership, are not presumed, but may be owner of the servient estate). Example:
imposed by law. (See Art. 619) Easement of right of way for the passage of
5. There is inherence (or inseparability, from the livestock or right of way for the community.
estate to which it belongs). (Art. 617). 2. According to the Manner They Are Exercised
6. It is indivisible (even if the tenement be divided). continuous easements their use is
(Art. 618). incessant, or may be incessant, without the
7. It is intransmissible (unless the tenement intervention of any act of man. Examples: The
affected be also transmitted or alienated). easement of drainage, the right to support a
8. It is perpetual (as long as the dominant and/or beam on anothers wall.
the servient estate exists unless sooner NOTE: For an easement to be considered
extinguished by the causes enumerated in the continuous, its use does not have to be
law). incessant; it is enough that the use MAY BE
discontinuous easements they are used at
Article 615 of the Civil Code intervals and depend upon the acts of man.
Example: Easement of right of way, because it
Easements may be continuous or discontinuous,
can be exercised only if a man passes or puts
apparent or non-apparent.
his feet over somebody elses land.
Continuous easements are those the use of which is NOTE: For legal purposes (as for acquisitive
or may be incessant, without the intervention of any prescription), the easement of aqueduct is
act of man. considered CONTINUOUS, even though the
ow of water may not be continuous, or its use
Discontinuous easements are those which are used
depends upon the needs of the dominant
at intervals and depend upon the acts of man.
estate, or upon a schedule of alternate days
Apparent easements are those which are made or hours. (Art. 646).
known and are continually kept in view by external NOTE: While both the continuous and
signs that reveal the use and enjoyment of the same. discontinuous easements, as easements may
be continuous (permanent), their EXERCISE
Non-apparent easements are those which show no
may be continuous or discontinuous.
external indication of their existence.
Article 616 of the Civil Code QUERY: Is the easement of light and view a
continuous or a discontinuous easement?
A positive easement is one which imposes upon the
ANSWER: While it is true that to construct a
owner of the servient estate the obligation of
window is an act of man, still once
allowing something to be done or of doing it himself,
constructed, the easement remains. Hence,
and a negative easement, that which prohibits the
we can say that the easement of light and
owner of the servient estate from doing something
view is a CONTINUOUS, not a discontinuous
which he could lawfully do if the easement did not
easement. For indeed while all easements
require human actions for establishment, not
all require human actions for exercise.
Classification of Easements 3. According to whether or not their Existence is
1. According to Party Given the Benet apparent easements those made known
real (or predial) for the benet of another and continually kept in view by external signs
immovable belonging to a different owner. that reveal the use and enjoyment of the
Example: Easement of water where lower same. Examples: Right of way when there is
estates are obliged to allow water naturally an alley or a permanent path; dam; window
in a party wall visible to both owners.

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NOTE: The mark or sign need not be seen, but voluntary constituted by will or agreement
should be susceptible of being seen. of the parties or by a testator.
NOTE: The easement of aqueduct is NOTE: Even if a voluntary easement
considered always apparent (Art. 646), easement by grant becomes also a legal
whether or not it can be seen. easement, or an easement by necessity, it is
non-apparent easements they show no still a property right, which continues even if
external indication of their existence. the necessity has ended.
Examples: In general, negative easements, mixed created partly by agreement and
easement of not building to more than a partly by the law.
certain height, easement of lateral and legal those constituted by law for public
subjacent support; easement of intermediate use or for private interest. Examples of Legal
distances. Also a right of way if there is no Easement:
visible path or alley. i. waters
4. According to the Purpose of the Easement or ii. right of way
the Nature of the Limitation iii. party wall
positive easement here the owner of the iv. light and view
servient estate is obliged v. drainage of buildings
o to allow something to be done on his vi. intermediate distances
property (servitus in patendo) or vii. against nuisances
o to do it himself (servitus in faciendo). viii. lateral and subjacent support
Positive easements are also termed
servitudes of SUFFERANCE or INTRUSION or
SERVICE, because something is being done
on the servient estate. Examples: Easement 1. If continuous and apparent, they may be
of light and view in a party wall, right of way, acquired by title and by prescription (10 years
duty to cut off tree branches extending over irrespective of the good or bad faith)
the neighboring estates. 2. If discontinuous and apparent only by title
3. If continuous and non-apparent only by title
negative easement here the owner of the
4. If discontinuous and non-apparent only by title
servient estate is PROHIBITED to do
something which he could lawfully do were it Title does not necessarily mean document. It
not for the existence of the easement. means a juridical act or law sufficient to create the
Example: Easement of light and view when encumbrance. Examples: law, donation,
the window or opening is on ones own wall testamentary succession, contract.
or estate. It may also be called servitudes of
right to partially use the servient estate.
Article 621 of the Civil Code
Example: right of way.
right to get specic materials or objects from In order to acquire by prescription the easements
the servient estate. Example: easement of referred to in the preceding article, the time of
drawing water.) possession shall be computed thus: in positive
right to participate in ownership. Example: easement, from the day on which the owner of the
easement of party wall. dominant estate, or the person who may have made
right to impede or prevent the neighboring use of the easement, commenced to exercise it upon
estate from performing a specic act of the servient estate; and in negative easements, from
ownership. Example: easement of the day on which the owner of the dominant estate
intermediate distances as when the servient forbade, by an instrument acknowledged before a
estate cannot plant trees without observing notary public, the owner of the servient estate, from
certain distances. executing an act which would be lawful without the
6. According to the Source or Origin and easement.
Establishment of the Easement

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1. If the easement is POSITIVE, begin counting the 1. He cannot alter the easement. (Art. 627)
period from the day the dominant estate began 2. He cannot make it more burdensome. (Art. 627)
to exercise it. (Thus, regarding a window in a Thus he cannot use the easement except for
party wall, from the day the opening or window movable originally contemplated. (Art. 626)
was built). (See Art. 668, par. 1) In the easement of right of way, he cannot
2. If the easement is NEGATIVE, begin counting increase the agreed width of the path, nor
from the time NOTARIAL PROHIBITION was made deposit soil or materials outside of the
on the SERVIENT ESTATE (which must of course boundaries agreed upon (for these acts would
be notied of the notarial prohibition). The law be increasing the burden), BUT he may allow
requires solemn formalities because easements OTHERS to use the path (this really does NOT
are in the nature of an encumbrance on the increase the burden) except if the contrary
servient estate, constituting as they do, a has been stipulated.
limitation on the dominical right of the owner of 3. If there be several dominant estates, each must
the subjected property. The notarial prohibition contribute to necessary repairs and expenses in
in the acquisition of a negative easement is proportion to the BENEFITS received by each
equivalent to the act of direct invasion in the estate (and not in proportion to the VALUE of
case of positive easement. each estate). (In the absence of proof, we should
presume the benets to be equal).
QUERY: Who makes the notarial prohibition or who
4. Regarding the making of repairs, see limitations
should commence the exercise of the easement?
in number 2 of the rights of the dominant estate.
ANSWER: The dominant estate, thru its owner or
usufructuary or possessor or legal representative; in
other words, anyone who desires to establish the RIGHTS OF THE SERVIENT ESTATE
1. to retain ownership and possession of the
portion of his land affected by the easement (Art.
RIGHTS OF THE DOMINANT ESTATE 630) even if indemnity for the right is given (as in
the case of the easement of right of way) (Art.
1. to exercise the easement and all necessary rights 649), unless the contrary has been stipulated.
for its use including accessory easement. (See 2. to make USE of the easement, unless deprived by
Art. 625) stipulation provided that the exercise of the
2. to make on the servient estate all works easement is not adversely affected (Art. 630) and
necessary for the use and preservation of the provided further that he contributes to the
servitude, BUT expenses in proportion to BENEFITS received,
this must be at his own expense unless there is a contrary stipulation. (Art. 628,
he must NOTIFY the servient owner par. 2)
select convenient time and manner 3. to change the location of a very inconvenient
he must NOT alter the easement NOR render easement provided that an equally convenient
it MORE BURDENSOME. (Art. 6271) substitute is made, without injury to the
3. to ask for a MANDATORY INJUNCTION to prevent dominant estate. (Art. 629, par. 2)
impairment or obstruction in the exercise of the
easement as when the owner of the servient
estate obstructs the right of way by building a OBLIGATIONS OF THE SERVIENT ESTATE
wall or fence.
4. to RENOUNCE totally (for an easement is 1. He cannot impair the use of the easement. (Art.
629, par. 1)
indivisible) the easement if he desires exemption
2. He must contribute to the expenses in case he
from contribution to expenses. (Art. 628)
uses the easement, unless there is a contrary
stipulation. (Art. 628, par. 2)

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3. In case of impairment, to restore conditions to Non-user refers to an easement that has once been
the status quo at his expense plus damages. (In used because one cannot discontinue using what
case of obstruction, as when he fences the one has never used. The proof of non-user must be
original right of way, and offers an inconvenient indubitable.
substitute way, which is farther and requires
From what time to compute
turning at a sharp angle, he may be restrained by
injunction) if a discontinuous easement (like the right of
4. To pay for the expenses incurred for the change way) from the time it ceased to be used.
of location or form of the easement (in the (Art. 631[2])
proper case). (Art. 629, par. 2) if a continuous easement (like aqueduct)
from the day on which an act contrary to the
same took place. (Art. 631[2])
NOTE: The right to claim or exercise some legal
Article 631 of the Civil Code easements never prescribe, since they are founded
on necessity, although the manner or form of using
Easements are extinguished:
the legal easement may indeed prescribe, such as
1. By merger in the same person of the ownership using a particular path. But the legal easement of
of the dominant and servient estates; natural drainage (Art. 637) may be extinguished by
2. By non-user for ten years; with respect to prescription and non-user for 10 years.
discontinuous easements, this period shall be
Par. 3 Bad Condition of the Tenement (as when
computed from the day on which they ceased to
flooded) or Impossibility of Use
be used; and, with respect to continuous
easements from the day on which an act contrary This merely suspends (unless extinguishment is
to the same took place; caused by the necessary period for non-user) since
3. When either or both of the estates fall into such possibility of use revives the easement. (Art. 631[3]).
condition that the easement cannot be used; but
Par. 4 Expiration of the Term or Fulfillment of the
it shall revive if the subsequent condition of the
estates or either of them should again permit its
use, unless when the use becomes possible, Example: An easement was agreed upon to last till
sufcient time for prescription has elapsed, in the owner of the dominant easement becomes a
accordance with the provisions of the preceding lawyer. When the condition is fullled, the easement
number; ceases.
4. By the expiration of the term or the fulllment of
Par. 5 Renunciation (Waiver) by the Owner of the
the condition, if the easement is temporary or
Dominant Estate
5. By the renunciation of the owner of the Renunciation must be express, clear, specic
dominant estate; (otherwise it might be confused with non-user). This
6. By the redemption agreed upon between the is particularly true for discontinuous easements.
owners of the dominant and servient estates. While it is true that a legal easement for the benet
of private individuals may be waived, still the mere
fact that it has not been used at all cannot give rise
How easements are extinguished: to the conclusion that there has been a waiver.
Par. 1 Merger Par. 6 Redemption Agreed Upon
The merger must be absolute, complete, not This is voluntary redemption, existing because of an
temporary. Thus, if the owner of the servient estate express stipulation. The stipulation may provide
buys the whole portion affected, the merger is conditions under which the easement would be
complete, and the easement is extinguished. extinguished.
Par. 2 Non-User for 10 Years Par. 7 Other Cause for Extinguishment of
Easement (though not expressly mentioned in the

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Expropriation of the servient estate EASEMENTS RELATING TO WATERS

Permanent impossibility to make use of the
Article 637 of the Civil Code
Annulment, rescission, or cancellation of the title Lower estates are obliged to receive the waters
that constituted the easement which naturally and without the intervention of man
Abandonment of the servient estate descend from the higher estates, as well as the
Resolution of the right of the grantor to create stones or earth which they carry with them.
the easement (as when there is redemption of
The owner of the lower estate cannot construct
the property sold a retro because of the exercise
works which will impede this easement; neither can
of the right of conventional redemption) (See Art.
the owner of the higher estate make works which
will increase the burden.
Registration of the servient estate as FREE, that
is, although the servient estate was registered Duties of Servient Estate (Higher Estate)
under the Torrens system, the easement thereon
The owner cannot construct works that would
was not registered, unless there is a stipulation
impede the easement (Art. 637) such as a blocking
or actual knowledge of the existence of the
dam, which would divert the ow, and burden
easement on the part of the transferee
another tenement, nor can he enclose his land by
In the case of the legal easement of right of way,
ditches or fences which would impede the ow but
the opening of an adequate outlet to the
he may regulate or control the descent of the water.
highway extinguishes the easement, if the
However, should he really cause an obstruction, as
servient owner makes a demand for such
when he builds a dike, the easement may be
extinguished, by non-user and barred by prescription
if the action to destroy the dike is brought only after
more than 10 years.
Duties of Dominant Estate (Lower Estate)
Article 634 of the Civil Code
he cannot make works which will increase the
Easements imposed by law have for their object
burden. (Art. 637). (Thus, he cannot collect
either public use or the interest of private persons.
water, nor increase the velocity of the descent
Different Legal Easements by making the ground more impervious or less
1. The easement relating to waters
but he may construct works preventing
2. Right of way
3. Party wall
if the descending waters are the result of
4. Light and view
articial development or proceed from
5. Drainage
industrial establishments recently set up, or are
6. Intermediate distances
the overow from irrigation dams, the owner
7. Easement against nuisance
of the lower estate shall be entitled to
8. Lateral and subjacent support
compensation for his loss or damage.
How Legal Easements for Private Interests Are
NOTE: A contract may extinguish a legal easement.
Thru a contract, onerous or otherwise, a legal
1. Agreement of interested parties provided not easement may be extinguished provided no injury is
prohibited by law nor prejudicial to a third suffered by a third person.
2. In default of (1), general or local laws and
ordinances for the general welfare. Easement along Riparian Banks
3. In default of (2), the Civil Code.
This is an easement on riparian property, banks of
NOTE: The Civil Code (Arts. 637-648) and the Law of rivers and streams.
Waters of 1866 govern the use of waters.

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A river bank is a lateral strip of shore washed by the easement of RIGHT OF WAY does not necessarily
water during high tides but which cannot be said to include the easement of aqueduct.
be ooded or inundated.
Requisites to Acquire the Easement of Aqueduct
No payment of indemnity is required.
1. Indemnity must be paid (to owners of
Easement Concerning a Dam intervening estates and to the owners of lower
estates upon which the waters may lter or
Easement for the construction, abutment, or
descend). (Art. 642). The amount usually
buttress of a dam (estribo de presa). depends on duration and inconvenience caused.
2. If for private interests, the easement cannot be
Payment of Indemnity is required. imposed on EXISTING buildings, courtyards,
annexes, out-houses, orchards, or gardens (but
Easements for Drawing Water or for Watering
can be on other things, like road, provided no
Animals injury is caused to said properties). (See Art. 644)
3. There must be proof:
Requirements: that he can dispose (i.e., he has the right to
It must be for public use dispose) of the water. (The right is given thru
It must be in favor of a town or village prescription or administrative concession.)
(caserios), (the purpose being to facilitate the (See Arts. 504, 643) Whoever believes that he
has the right to object, may set up an
establishment of rural towns by making
objection based on the fact that the person
conveniently possible the supply of water)
seeking the easement has no right to the legal
The right must be sought not by one individual,
use of the waters.
but by the town or village, thru its legal that the water is SUFFICIENT for the use for
representation which it is intended. (The use must be
There must be payment of the proper indicated, otherwise, it is hard to determine
indemnity. (Arts. 640-641) sufciency.) But the use may be any kind as
The right of way should have a maximum width long as it is lawful, and may be, for example,
of 10 meters, which cannot be altered by the for irrigation, or for a sh pond. [Suf ciency,
owners of the servient estates although the however, is a relative term, and must not be
direction of the path may indeed be changed, construed very literally. (Art. 643).]
provided that the use of the easement is not that the proposed course is the most
prejudiced. convenient and the least onerous to third
persons and the servient estate. (Art. 643).
The shortest distance is not necessarily that
EASEMENT OF AQUEDUCT contemplated by the law. (Art. 643)
Article 646 of the Civil Code that proper administrative permission be
obtained (that of the municipal council when
For legal purposes, the easement for aqueduct shall
be considered as continuous and apparent, even municipal streets are crossed: that of the
though the ow of the water may not be provincial board when public roads and
continuous, or its use depends upon the needs of waterways are crossed; that of the National
the dominant estate, or upon a schedule of alternate Government when navigating canals, OR
days or hours. navigable or oatable rivers are crossed).
Easement of Aqueduct Obligations of the Dominant Owner
It deals with the legal (compulsory) easement of 1. to keep the aqueduct in proper use or care.
aqueduct, the right to make water ow thru 2. to keep on hand necessary materials for its use.
intervening estates in order that one may make use
of said waters. Note that the existence of the Preservation of Right of Servient Estate to Fence

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The servient owner may still enclose or fence the the easement ends). (Art. 655). (Use before
servient estate, or even build over the aqueduct, so indemnity is not allowed.)
long as: 4. It must be established at the point least
prejudicial to the servient estate. (This is
1. no damage is caused; generally but not necessarily, the shortest
2. or repairs and cleanings become impossible. (Art. distance) (See Art. 650)
645) 5. The isolation must not be due to the proprietors
own acts (as when he has built enclosing walls)
(See Art. 649).
Article 649 of the Civil Code 6. Demandable only by the owner or one with a real
right like a usufructuary. (The lessee should ask
The owner, or any person who by virtue of a real the lessor to demand the easement from the
right may cultivate or use any immovable, which is adjoining estates.
surrounded by other immovables pertaining to other
persons and without adequate outlet to a public The Proper Indemnity
highway, is entitled to demand a right of way
through the neighboring estates, after payment of 1. If the passage is permanent, pay the value of land
the proper indemnity. occupied by the path plus damages. (Upon
Should this easement be established in such a extinction of the easement, the indemnity is
manner that its use may be continuous for all the returned without interest, for the interest is
needs of the dominant estate, establishing a considered rent.)
permanent passage, the indemnity shall consist of 2. If temporary, pay for the damages caused.
the value of the land occupied and the amount of NOTE: The easement here is necessarily only
the damage caused to the servient estate. TEMPORARY, nonetheless proper indemnity
In case the right of way is limited to the necessary must be given. Indispensable is not to be
passage for the cultivation of the estate surrounded construed literally. The causing of great
by others and for the gathering of its crops through inconvenience is sufcient. The owner (or the
the servient estate without a permanent way, the usufructuary) can make use of Art. 656.
indemnity shall consist in the payment of the
damage caused by such encumbrance. Classication of Right of Way
This easement is not compulsory if the isolation of
the immovable is due to the proprietors own acts. 1. private (such as the right given in this Art. 649)
2. public (one available to the general public but
Definition then in such a case, the land involved would no
longer be private land but a highway or a
This is the easement or privilege by which one
public road.
person or a particular class of persons is allowed to
pass over anothers land, usually thru one particular Causes for Extinguishment of the Easement of Right
path or line. The term right of way, upon the other of Way
hand, may refer either to the easement itself, or
simply, to the strip of land over which passage can 1. opening of a new road. (Art. 655, par. 2)
be done. 2. joining the dominant estate to another (that is
the latter becomes also the property of the
Requisites for the Easement of Right of Way dominant owner) which abuts, and therefore has
access to the public highway. (Art. 655, par. 1)
1. The property is surrounded by estates of others. But the new access must be adequate and
2. There is no adequate outlet to a public highway. convenient.
3. There must be payment of the proper indemnity
Extinguishment not Automatic
(but later on, the amount may be refunded when

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The extinguishment is not automatic, because the Requisites for the Renunciation of the Share
law says that the servient owner may demand. It
1. Must be total or complete (not partial).
follows that if he chooses not to demand, the
2. Must be made voluntarily and with full
easement remains and he has no duty to refund the
indemnity. knowledge of the facts.
3. Must be made before the expenses are incurred.
NOTE: It is only applicable to compulsory or legal 4. Is made with the implied condition that the other
easement of right of way, not to a voluntary one. owner should make or pay for the repairs.
5. Must be of both the share in the wall and the
share in the land, for the wall cannot be used
without the land.
Article 658 of the Civil Code
The easement of party wall shall be governed by the
provisions of this Title, by the local ordinances and Indemnication must be made for damages (the
customs insofar as they do not conict with the simultaneous damages or those incurred
same, and by the rules of co-ownership. immediately after and because of, the demolition,
not those which may occur later on).
Definition of Party Wall
This is a wall at the dividing line of estates. Co-
ownership governs the wall, hence the party wall is EASEMENT OF LIGHT AND VIEW
necessarily a common wall. However, not all This section deals with two kinds of easements:
common walls are party walls. For example, a
handball wall owned by two brothers, on their 1. Easement of LIGHT jus luminum (as in the case
common lot is a common wall, but is not a party
of small windows, not more than 30 cm. square,
wall. This is a compulsory kind of co-ownership.
at the height of the ceiling joist, the purpose of
Article 659 of the Civil Code which is to admit light, and a little air, but not
The existence of an easement of party wall is VIEW).
presumed, unless there is a title, or exterior sign, or 2. Easement of VIEW servidumbre prospectus
proof to the contrary: (as in the case of full or regular windows
overlooking the adjoining estate) (Incidentally,
1. In dividing walls of adjoining buildings up to the
although the principal purpose here is VIEW, the
point of common elevation;
2. In dividing walls of gardens or yards situated in easement of light is necessarily included, as well
cities, towns, or in rural communities; as the easement of altius non tollendi [not to
3. In fences, walls and live hedges dividing rural build higher for the purpose of obstruction].)
Article 667 of the Civil Code
Repairs on and Construction of the Party Wall
No part-owner may, without the consent of the
Proportionate contribution to repairs and others, open through the party wall any window or
construction (similar to co-ownership). Renunciation aperture of any kind.
of the share of one owner in the party wall may be
QUERY: A and B are co-owners of a party wall.
made, in order to free himself from the above-
Supposed A makes an opening on the wall without
mentioned contribution UNLESS
Bs consent, what will be Bs right?
the repair had already been contracted for and
ANSWER: B can order that the opening be closed
made (for here, he would still be liable to the
unless of course a sufcient time for prescription has
elapsed 10 years from the opening of the window.
he still uses the wall (as when it supports his
(Art. 668, par. 1)
building). (Art. 662). [If the building is
demolished renunciation can be made. (Art. Article 668 of the Civil Code

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The period of prescription for the acquisition of an No windows, apertures, balconies, or other similar
easement of light and view shall be counted: projections which afford a direct view upon or
towards an adjoining land or tenement can be made,
1. From the time of the opening of the window, if it
without leaving a distance of two meters between
is through a party wall; or
the wall in which they are made and such contiguous
2. From the time of the formal prohibition upon the
proprietor of the adjoining land or tenement, if
the window is through a wall on the dominant Neither can side or oblique views upon or towards
estate. such conterminous property be had, unless there be
a distance of sixty centimeters.
The easement of light and view is either positive or
negative: The non-observance of these distances does not give
rise to prescription.
1. Positive if the window is thru a party wall.
(Art. 668, par. 1) Therefore, the period of Article 671 of the Civil Code Regular Windows
prescription commences from the time the
window is opened. The distances referred to in the preceding article
NOTE: The mere opening of the window does not shall be measured in cases of direct views from the
create the easement; it is only when after a outer line of the wall when the openings do not
sufcient lapse of time the window still remains
project, from the outer line of the latter when they
open, that the easement of light and view is
do, and in cases of oblique views from the dividing
NOTE: Even if the window is on ones own wall, line between the two properties.
still the easement would be positive if the
window is on a balcony or projection extending Article 673 of the Civil Code Right to have Direct
over into the adjoining land. Views
2. Negative if the window is thru ones own wall, Whenever by any title a right has been acquired to
that is, thru a wall of the dominant estate. (Art. have direct views, balconies or belvederes
668, par. 2). Therefore, the time for the period of overlooking an adjoining property, the owner of the
prescription should begin from the time of servient estate cannot build thereon at less than a
notarial prohibition upon the adjoining owner. distance of three meters to be measured in the
Article 669 of the Civil Code Restricted Windows manner provided in Article 671. Any stipulation
permitting distances less than those prescribed in
When the distances in Article 670 are not observed, Article 670 is void.
the owner of a wall which is not a party wall,
adjoining a tenement or piece of land belonging to
another, can make in it openings to admit light at EASEMENT OF DRAINAGE OF BUILDINGS
the height of the ceiling joists or immediately under
the ceiling, and of the size of thirty centimeters Article 674 of the Civil Code
square, and, in every case, with an iron grating The owner of a building shall be obliged to construct
imbedded in the wall and with a wire screen. its roof or covering in such manner that the rain
Nevertheless, the owner of the tenement or water shall fall on his own land or on a street or
property adjoining the wall in which the openings public place, and not on the land of his neighbor,
are made can close them should he acquire part- even though the adjacent land may belong to two or
ownership thereof, if there be no stipulation to the more persons, one of whom is the owner of the roof.
contrary. Even if it should fall on his own land, the owner shall
be obliged to collect the water in such a way as not
He can also obstruct them by constructing a building to cause damage to the adjacent land or tenement.
on his land or by raising a wall thereon contiguous to
that having such openings, unless an easement of
light has been acquired.
Article 670 of the Civil Code Regular or Full

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CASES IN EASEMENT Held: Under Articles 649 and 650 of the Civil Code,
the four requisites of a compulsory right of way are:
PACITA DAVID-CHAN VS. COURT OF APPEALS 1. the estate is surrounded by other immovables
and is without adequate outlet to a public
Facts: Petitioner alleged that her property, was
2. proper indemnity is paid;
delineated on its northern and western sides by
3. the isolation is not due to the proprietors own
various business establishments. Adjoining her
acts; and
property along its southern boundary was the land
4. the right of way claimed is at a point least
of the Pineda family, while along the east-
prejudicial to the servient estate and, insofar as
northeastern boundary was another lot owned by
consistent with this rule, where the distance
private respondent. In short, petitioners lot was
from the dominant estate to a public highway
almost completely surrounded by other
may be the shortest.
immovables and cut off from the highway. Her only
access to the highway was a very small opening In the case at bar, petitioner failed to satisfy the
measuring 2-4 inches wide through the property of third requirement because she caused her own
private respondent. Petitioner believed she was isolation by closing her access through the Pineda
entitled to a wider compulsory easement of right of property. Petitioner built a fence to separate her
way through the property of private respondent. property from that of the Pineda family on the
southern boundary. And she even closed the small
Petitioner alleged that private respondent was
opening causing her property to be isolated and
about to complete the construction of its concrete
losing one access to the National Highway.
fence on the said lot which would result in
depriving petitioner of the only available right of Further, as to the second requisite, there was no
way, and that therefore, she was constrained to showing that petitioner ever made a tender of
petition the trial court to enjoin private respondent payment of the proper indemnity for the right of
from fencing said lot. way.
Singian Brothers, former owners, were not obliged Hence, petitioner failed to show sufficient factual
to inform petitioner of the sale. The land sold was evidence to satisfy requirements of right of way.
free from all liens and encumbrances as stated in the
Deed of Absolute Sale. Private respondent was not
selling the 161 square-meter lot because it needed SPOUSES CESAR AND RAQUEL STA. MARIA AND
the property. Also, petitioner had another access to FLORCERFIDA STA. MARIA VS. COURT OF APPEALS
the highway without passing through the lot in
Facts: Spouses Fajardo filed a complaint against
Defendant Singian Brothers averred that petitioner spouses Sta. Maria or Florcerfida Sta. Maria for the
stated no cause of action because, being apparent establishment of an easement of right of
and discontinuous, the right of way cannot be way. Spouses Fajardo alleged that their lot is
acquired by prescription. Petitioner was not a surrounded by properties belonging to other
tenant of the Singian Brothers; therefore she was persons including those of the defendants. Since
not entitled to a right of pre-emption or right of they have no adequate outlet to the provincial road,
redemption. Finally, petitioner had another access to an easement of a right of way passing through either
the National Highway which, however, she closed of the alternative spouses Sta. Marias properties
during the pendency of the case at the trial court which are directly abutting the provincial road would
when she extended the construction of her fence. be spouses Fajardos only convenient, direct and
shortest access to and from the provincial road.
RTC and CA ruled in favor of the private respondent.
Despite spouses Fajardos request for a right of way,
Issue: Whether petitioner is entitled to a legal spouses Sta. Maria refused to grant them an
easement of right of way over that portion of the easement. Hence, spouses Fajardo prayed an
property of respondent Rabbit? easement of right of way on the lots of spouses Sta.

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Maria be established on their favor before the lower 1. the dominant estate is surrounded by other
RTC. immovables and has no adequate outlet to a
public highway (Art. 649, par.
Spouses Sta. Maria alleged that the granting of an
easement in favor of plaintiffs would cause them 2. there is payment of proper indemnity (Art. 649,
great damage and inconvenience; and that there is par.
another access route from plaintiffs lot to the main
road. 3. the isolation is not due to the acts of the
proprietor of the dominant estate (Art. 649, last
The trial court found that based on the Ocular par.); and
Inspection Report there was no other way through
which spouses Fajardo could establish a right of way 4. the right of way claimed is at the point least
in order to reach the provincial road except by prejudicial to the servient estate; and insofar as
traversing directly the property of the petitioners. It consistent with this rule, where the distance
further found that no significant structure, save for a from the dominant estate to a public highway
wall or fence about three feet high, would be may be the shortest (Art. 650)
adversely affected, and such property could provide
the shortest route from the provincial road to
spouses Fajardos property. REMIGIO RAMOS VS. GATCHALIAN REALTY, INC.,
CA agreed with the trial court holding that spouses
Fajardo had sufficiently established the existence of
the four requisites for compulsory easement of Facts: A house and lot was acquired by the
right of way on petitioners property, to wit: petitioner from Science Rodriguez Lombos
Subdivision. Two road lots abut petitioner's property
1. private respondents property was, as revealed by namely: proposed road in the Lombos subdivision
the Ocular Inspection Report, surrounded by plan, and Pambansa Road/Gatchalian Avenue.
other immovables owned by different individuals
and was without an adequate outlet to a public Respondent Gatchalian Realty was granted the road
highway; right of way and drainage along the Gatchalian
Avenue to service the Gatchalian and Asprec
2. the isolation of private respondents property was subdivision, by the respondent Asprecs.
not due to their own acts, as it was already
surrounded by other immovables when they Petitioner Ramos alleged that Gatchalian Realty, Inc.
purchased it; built a 7-8 feet high concrete wall right in front of his
premises, blocking his entrance/exit to Gatchalian
3. petitioners property would provide the shortest Road (the nearest, most convenient and adequate
way from private respondents property to the entrance/exit to the public road or highway).
provincial road, and this way would cause the Further, he alleged that Gatchalian Realty granted
least prejudice because no significant structure him the requested right of way upon payment of
would be injured thereby; and proper indemnity.
4. the private respondents were willing to pay the Gatchalian Realty averred that Gatchalian Avenue is
corresponding damages provided for by law if not a public road but a private street established and
the right of way would be granted. constructed by it, intended for the sole and exclusive
use of its residents and lot buyers of its subdivisions.
Hence, spouses Sta. Maria filed this petition. Further, it alleged that it has never entered into a
Issue: Whether CA erred in granting spouses Fajardo verbal agreement with plaintiff to grant the latter a
an easement of right of way on the lot of spouses road right of way.
Sta. Maria. Gatchalian Realty averred that petitioner Ramos
Held: The court affirmed the decision of CA. demand of right of way is not a legal necessity
because such lot has an eating road right of way.
The following requirements for an estate to be
entitled to a compulsory servitude of right of way
under the Civil Code, to wit:

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RTC dismissed petitioners civil action for a right of Defendants and the tenants of Vicente Roco, the
way for insufficiency of evidence. CA affirmed the predecessors in interest of the said defendants have
same. Hence, this petition. long recognized and respected the private legal
easement of road right of way of said plaintiffs.
Issue: Whether the petitioner is entitled to an
easement of a right of way. Defendants started constructing a chapel in the
middle of the said right of way, which actually
Held: Easement is established either by law, in which
impeded, obstructed and disturbed the continuous
case it is called legal or by the will of the parties, in
exercise of the rights of the plaintiffs over said right
which event it is a voluntary easement. In the case at
of way. Defendants planted wooden posts, fenced
bar, there is no agreement between the contending
with barbed wire and closed hermitically the road
parties granting a right of way by one in favor of the
passage way, thereby preventing plaintiffs from
other. Hence, the requisites of legal or compulsory
going to or coming from their homes to the public
easement of a right of way should be examined.
market and Igualdad Street.
Under the Civil Code, one is entitled to a compulsory
Plaintiffs claimed to have acquired the easement of
servitude of right of way if the following pre-
right of way over the land of the defendants thru
conditions are established:
prescription by their continuous and uninterrupted
1. That it is surrounded by other immovables and use of a narrow strip of land of the defendants as
has no adequate outlet to a public highway (Art. passage way or road.
649, par. 1);
Issue: Whether an easement of right of way can be
2. After payment of proper indemnity (Art. 649, p.
acquired thru prescription.
1. end);
3. That the isolation was not due to the Central's Held: Easements may be continuous discontinuous
own acts (Art. 649, last par.); and (intermittent), apparent or non-apparent,
4. That the right of way claimed is "at the point discontinuous being those used at more or less long
least prejudicial to the servient estate; and intervals and which depend upon acts of man.
insofar as consistent with this rule, where the Continuous and apparent easements are acquired
distance from the dominant estate to a public either, by title or prescription, continuous non-
highway may be the shortest." (Art. 650). apparent easements and discontinuous ones
whether apparent or not, may be acquired only by
In the case at bar, petitioner failed to prove the non-
virtue of a title.
existence of an adequate outlet to the Sucat Road
except through the Gatchalian Avenue. There is a An easement of right of way though it may be
road right of way provided by the Sabrina Rodriguez apparent is, nevertheless, discontinuous or
Lombos Subdivision for the buyers of its lots. The intermittent and, therefore, cannot be acquired
fact that said lot is still undeveloped and causes through prescription, but only by virtue of a title.
inconvenience to the petitioner when he uses it to
reach the public highway does not bring him within
the ambit of the legal requisite. ANASTACIA QUIMEN VS. COURT OF APPEALS
"Mere convenience for the dominant estate is not
Facts: In this case, Yolanda purchase a lot from her
enough to serve as its basis. To justify the imposition
uncle Antonio through her aunt Anastacia who was
of this servitude, there must be a real, not a fictitious
then acting as his administratix. According to
or artificial, necessity for it." (Tolentino)
Yolanda, when petitioner offered her the property
for sale she was hesitant to but as it had no access to
a public road. But Anastacia prevailed upon her to
buy the lot with the assurance that she would give
her a right of way on her adjoining property for P200
Facts: Plaintiffs have been in the continuous and per square meter.
uninterrupted use of a road or passage way which
Thereafter, Yolanda constructed a house on the lot
traversed the land of the defendants and their
she bought using as her passageway to the public
predecessors in interest, for more than 20 years.
highway a portion of Anastacia s property. But when

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Yolanda finally offered to pay for the use of the owner of the latter must refrain from doing or
pathway Anastacia refused to accept the allowing somebody else to do or something to be
payment. In fact she was thereafter barred by done on his property, for the benefit of another
Anastacia from passing through her property. person or tenement. A right of way in particular is a
privilege constituted by covenant or granted by law
Yolanda purchased the other lot of Antonio Quimen
to a person or class of persons to pass over anothers
located directly behind the property of her parents
property when his tenement is surrounded by
who provided her a pathway between their house
realties belonging to others without an adequate
extending behind the sari-sari store of Sotero and
outlet to the public highway.
Anastacias perimeter fence. The store is made of
strong materials and occupies the entire frontage of The conditions sine qua non for a valid grant of an
the lot. Although the pathway leads to the easement of right of way are:
municipal road it is not adequate for ingress and
1. the dominant estate is surrounded by other
egress. The municipal road cannot be reached with
immovables without an adequate outlet to a
facility because the store itself obstructs the
public highway;
path. Hence, Yolanda filed an action for a right of
2. the dominant estate is willing to pay the proper
An ocular inspection was conducted. The report was 3. the isolation was not due to the acts of the
that the proposed right of way was (1) at the dominant estate; and
extreme right of Anastacias property facing the 4. the right of way being claimed is at a point least
public highway which was obstructed by a sari-sari prejudicial to the servient estate.
store and (2) and the way was unobstructed except
In the case at bar, Yolandas property was totally
for an avocado tree standing in the middle.
isolated from the public highway and there appears
The trial court dismissed the complaint holding that an imperative need for an easement of right of way
it was more practical to extend the existing pathway to the public highway. Further, the voluntary
to the public road by removing that portion of the easement in favor of Yolanda has in fact become a
store blocking the path as that was the shortest legal easement or an easement by necessity
route to the public road and the least prejudicial to constituted by law.
the parties concerned than passing through
Article 650 of the New Civil Code explicitly states
Anastacias property. Yolanda appealed to the CA.
that the easement of right of way shall be
CA reversed the lower court and held that Yolanda established at the point least prejudicial to the
was entitled to a right of way on Anastacias servient estate and, insofar as consistent with this
property and that the way proposed by Yolanda rule, where the distance from the dominant estate
would cause the least damage and detriment to the to a public highway may be the shortest.
servient estate. Hence, this petition.
The criterion of least prejudice to the servient estate
Anastacia insists that passing through the property must prevail over the criterion of shortest distance.
of Yolandas parents is more accessible to the public The one where the way is shortest and will cause
road than to make a detour to her property and cut the least damage should be chosen. However, if
down the avocado tree standing thereon. Further, these 2 circumstances do not concur in a single
she derives a net income from the sale of the fruits tenement, the way which will cause the least
of her avocado tree, and she expects to have damage should be used, even if it will not be the
substantial earning from it considering that an shortest.
avocado tree has an average lifespan of 70 years. In the instant case, as between a right of way that
Issue: Which passage wayone that is obstructed by would demolish a store of strong materials to
sari-sari store or avocado treeis the least provide egress to a public highway, and another
prejudicial and the shortest distance to the public right of way which although longer will only require
road. an avocado tree to be cut down, the second
alternative should be preferred.
Held: An easement is a real right on anothers
property, corporeal and immovable, whereby the

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Facts: Petitioner herein instituted an action so seek Facts: 1. This is a petition for review on certiorari of
the issuance of a writ of easement of a right of way the rules of court, seeking to reverse and set aside
over an additional width of at least two meters over the CA decision and resolution which reveres and set
the servient estate owned by private respondents. aside the RTC decision on the civil case. The
Petitioner alleged that his plant nursery business resolution denied the MR filed by the petitioner.
through sheer hard work flourished and with that it
became more and more difficult for the petitioner to 2. In 2002, Petitioners filed a complaint for Easement
transport his plants from the nursery to the highway of Right of Way against the respondent Patrocinio L.
because his owner-type jeep which he would use for Marcos and alleged therein that they are the owners
transporting his plants could not pass through the of Lot. No. 21553 while respondent is the owner of
road path provided by the owner of the servient the another lot(Servient State).
estate as access to the highway after it fenced its
land. However, the servient estate owner opposed 3. Since the petitioners had no access to a public
for the additional easement of right of way. road to and from their property, they claimed to
have used a portion of lot. no 1 in accessing the road
Issue: Whether or not petitioner is entitled to a since 1970. Respondent, however, blocked the
widening of an already existing easement of right-of- passageway with pile of sand. Though petitioners
way have been granted another passageway by Spouses
Arce, the owner of another adjacent lot.
Held: Yes, article 651 of the civil code provides that
"The width of the easement of right of way shall be 4. Hence in reply to the complaint filed before the
that which is sufficient for the needs of the RTC, the respondent filed a motion to dismiss on the
dominant estate and may accordingly change from ground of lack of cause of action and non
time to time." This is taken to mean that under the compliance with the requisites of forum shopping.
law, it is the needs of the dominant property which [kahit wag na to rules of court]
ultimately determine the width of the passage. And
these needs may vary from time to time. When 5. RTC denied respondent's motion to dismiss.
petitioner started out as a plant nursery operator, he
6. The respondent denied that he allowed anybody
and his family could easily make do with a few
to use Lot no. 1 as passageway and that petitioner
pushcarts to tow the plants to the national highway.
claim of right of way is only due to expediency and
But the business grew and with it the need for the
not necessity. He also maintained that there is an
use of modern means of conveyance or transport.
existing easement of right of way available to the
Manual hauling of plants and garden soil and use of
petitioners granted by the spouse Arce. The RTC
pushcarts have become extremely cumbersome and
declared that respondent's answer failed to tender
physically taxing. To force the petitioner to leave his
an issue, and opted to tender judgement on the
jeepney in the highway, exposed to the elements
pleadings and thus deemed the case submitted for
and to the risk of theft simply because it could not
pass through the improvised pathway, is sheer
pigheadedness on the part of the servient estate and 7. RTC rendered a decision in favour of the
can only be counter-productive for all the people petitioners, granting a right of way over Lot 1 after
concerned. Petitioner should not be denied a finding that petitioners adequately established the
passageway wide enough to accommodate his requisites of right of way in accordance with Articles
jeepney since that is a reasonable and necessary 649 and 650 of the Civil code.
aspect of the plant nursery business.
8. On appeal, the CA reversed and set aside the RTC
decision and dismissed petitioners complaint. It
concluded that there is no need to establish an
easement over respondents property since the
ARces spouses had already provided an access road

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which is adequate. It emphasized that the ingress and egress was easily made because the
convenience of the dominant estate is never the gates were always open and there was no guard
gauge for the grant of compulsory right of way. assigned in the said gate. Also the thanks didn't have
Hence, this petition. Petitioners contend that any barricade or fence. One day when Mario was
respondents lot is the shortest route in going to and playing with his friend, they saw the thank inside the
from their property to a public street and where factory and began playing and swimming inside it.
they used to pass. While bathing, Mario sank to the bottom of the
thank, only to be fished out later as a cadaver having
Issue: Whether or not petitioners are entitled to a died of asphyxia secondary to drowning. The lower
legal easement decided in favour of the parents saying the
petitioner is liable for damages due to the doctrine
Held: No, the petitioner is without merit. Petitioners of attractive nuisance.
failed to show sufficient factual evidence to satisfy
the enumerated requirements under Art 650 of NCC Issue: Whether or not the doctrine of attractive
nuisance is applicable in this case.
1. by its very nature, an easement involves an
abnormal restriction on the property rights of the Held: No, the doctrine of attractive nuisance states
servient owner and is regarded as a charge or that " one who maintains on his premises dangerous
encumbrance on the servient estate. It is incumbent instrumentalities or appliances of a character likely
upon the owner of the dominant estate to establish to attract children in play, and who fails to exercise
by clear and convincing evidence the presence of all ordinary care to prevent children from playing
the preconditions before his claim for easement of therewith or resorting thereto, is liable to a child of
right of way may be granted. tender years who is injured thereby, even if the child
is technically a trespasser in the premises.
2. Mere convenience for the dominant estate is not
what is required by law as the basis of setting up a However, American Jurisprudence shows us that the
compulsory easement. Even in the face of necessity, attractive nuisance doctrine generally is not
if it can be satisfied without imposing the easement, applicable to bodies of water, artificial as well as
the same should not be imposed. convenience of the natural, in the absence of some unusual condition or
dominant estate is never the gauge for the grant of artificial feature other than the mere water and its
compulsory right of way. the true standard for the location.
grant of the legal right is adequacy. Hence, when
there is already an existing adequate outlet from the Nature has created streams, lakes and pools which
dominant estate to a public highway, as in this case, attract children. Lurking in their waters is always the
even when the said outlet, for one reason or danger of drowning. Against this danger children are
another, be inconvenient, the need to open up early instructed so that they are sufficiently
another servitude is entirely unjustified presumed to know the danger; and if the owner of
private property creates an artificial pool on his own
3. Petitioners had been granted a right of way property, merely duplicating the work of nature
through the other adjacent lot owned by the without adding any new danger he is not liable
Spouses Arce. In fact, other lot owners use the said because he did not created an "attractive nuisance."
outlet in going to and coming from the public
highway. Clearly, there is an existing outlet to and Therefore, as petitioner's tanks are not classified as
from the public highway. attractive nuisance, the question whether the
petitioner had taken reasonable precautions become

Facts: Guillermo Balandan and his wife is claiming

damages in the sum of P2,000 for the death of their
son Mario. Petitioner was the owner of an ice-plant
whose premises were installed two tanks full of
water, nine feet deep, The factory was fenced by

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Nuisance .....e... Examples of (5)

illegal constructions on anothers land.
Art. 694. A nuisance is any act, omission,
establishment, business, condition of property, or Nuisance Can Be Abated because it is one of the
anything else which: most serious hindrances to the enjoyment of life and
(1) Injures or endangers the health or safety of
others;or AC Enterprises, Inc. v. Frabelle Properties Corp.
(2) Annoys or offends the senses; or Noise emanated from a blower of the air-
conditioning of a unit.
(3) Shocks, defi es or disregards decency or - It is a nuisance to be resolved only by the courts
morality;or in the due course of proceedings; the noise is not a
nuisance per se. Noise becomes actionable only
(4) Obstructs or interferes with the free passage of when it passes the limits of reasonable adjustment
anypublic highway or street, or any body of water; or to the conditions of the locality and of the needs of
the maker to the needs of the listener. Injury to a
(5) Hinders or impairs the use of property. particular person in a peculiar position or of
especially sensitive characteristics will not render
Examples of (1) the house an actionable nuisance in the
a house in danger of falling; fireworks or conditions, of present living, noise seems
explosives factory near a residence area. inseparable from the conduct of many necessary
Houses and similar constructions without
building permits Nuisance vs. Negligence
Negligence is penalized because of lack of proper
Examples of (2) care.
too much horn blowing;
a leather factory; a Nuisance is wrong, not because of the presence or
garbage cans; absence of care, but because of the injury caused.
a pumping station witha high chimney,
located 3.8 meters from house which
would thus be rendered practically Classification of Nuisances
uninhabitable because of the smoke, noise.
Old classification
Examples of (3)
burlesqueperformance (whether or not 1) Nuisance per se always a nuisance
there is a completestrip tease, since the (Example: a house of prostitution).
tease remains, provoking lust); public
exhibition of a naked woman 2) nuisance per accidens a nuisance only because
a house of prostitution. of the location or other circumstances.
(Example: a noisy factory in a residential district. .
a naked females picture for a truly artistic or Question last semester:
scientific purpose. I. Nuisance: Determine if the situation is
nuisance and if yes what kind? Public or
Examples of (4) Private? Per Se or Accidence 5%
houses constructed on public streets a. House of ill repute in a red light district Not
a nuisance.
market stalls and residences constructed on b. Marijuana laboratory for medical purposes
a public plaza.
Not a nuisance.

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c. Culture of Denque carrying mosquito in a years who is injured thereby, even if the child is
laboratory Not a nuisance. technically a trespasser in the premises
d. Leprosarium medical facility in a city Not a
Example: A swimming pool or water tank is not an
attractive nuisance, for while it is attractive, it
e. Gambling den operations at Macapagal cannot be a nuisance, being merely an imitation of
Blvd. Not a nuisance. the work of nature. Hence, if small children are
drowned in an attractive water tank of another, the
New classification owner is not liable even if there be no guards on the
premises. See Hidalgo Enterprises, Inc. v. Balandan,
(1) according to relief (whether given or not).
Art. 696. Every successive owner or possessor of
a) actionable. property who fails or refuses to abate a nuisance in
b) non-actionable. that property started by a former owner or
possessor is liable therefor in the same manner as
2) according to manner of relief.(COJE) the one who created it.

a) those abatable by criminal and civil actions When Successor to the Property May Be Held Liable
b) those abatable only by civil actions The successor, to be held liable, must
c) those abatable judicially knowingly fail or
d) those abatable extrajudicially refuse to abate the nuisance

3) according to the Civil Code. Liability of Two or More Persons Responsible for a
a) PUBLIC (common) If there was common design or interest, the liability
affects a community or neighborhood or any is solidary (not merely joint).
considerable number of persons (although the
extent of annoyance, danger, or damage be Rule if Lessor Created or Continues the Nuisance
unequal). (Here, criminal proceedings may be used If a person sets up a nuisance on his land, then
for abatement.) leases the property to another, he cannot escape
liability. Moreover, continuation of the nuisance
Example of public nuisance: after the lease becomes effective likewise makes the
a noisy or dangerous factory in a residential lessor liable. The lessee will be liable only when he
district. knowingly allows its existence. The same is true
with a purchaser.
that which is NOT public. Here, criminal proceedings Art. 698. Lapse of time cannot legalize any
are not a remedy). nuisance, whether public or private.

Example private nuisance: Effect of Lapse of Time

an illegally constructed dam partially resting on The action to abate a public or private nuisance is
anothers estate not extinguished by prescription.

The Attractive Nuisance Doctrine Exception

An attractive nuisance is a dangerous Arts. 698 and 1143(2) do not apply to easements
instrumentality or appliance which is LIKELY TO which are extinguished by obstruction and non-user
ATTRACT CHILDRENAT PLAY. for ten year). The special rule in Art. 631, which is
limited to easement, must be regarded as an
Doctrine: One who maintains on his estate or exception to the general rule in Art. 698.
premises an attractive nuisance without exercising See Ongsiako, et al. v. Ongsiako (Digested)
due care to prevent children from playing therewith
or resorting thereto, is LIABLE to a child of tender

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Art. 702. The district health officer shall determine

Art. 699. The remedies against a public nuisance whether or not abatement, without judicial
are: proceedings, is the best remedy against a public
(1) A prosecution under the Penal Code or any local
ordinance; or
Who Determines Which Remedy is Best
(2) A civil action; or
In the City of Manila, the City Engineer is the official
(3) Abatement, without judicial proceedings. concerned regarding illegal construction

Remedies Against a Public Nuisance In other places, it is the District/City Health Officer.
The Article explains itself. In a criminal action, the
plaintiffs are, of course, People of the Philippines.

Tamin v. CA Art. 703. A private person may file an action on

A public plaza is outside the commerce of man and account of a public nuisance, if it is specially
constructions thereon can be abated summarily by injurious to himself.
the municipality.

Art. 700. The district health officer shall take care When a Private Person May Sue on Account of a
that one or all of the remedies against a public Public Nuisance
nuisance are availed of.
General Rule: It is the mayor who must bring the
(1) The District Health Officers Responsibility; civil action to abate a public nuisance.
Exception in the Case of Manila
Though the Civil Code says district health officer Exception: private individual can also do so, if the
still under the Revised Charter for Manila (which public nuisance is SPECIALLY INJURIOUS to himself.
controls, because it is a special law)

The proper official insofar as illegal constructions or Nature of the Action

houses on public streets are concerned, is the City The action may be for injunction, abatement or for
Engineer. damages. (In both of course, he must show special
damage to himself).
Effect if the District Health Officer is Not Consulted
Prior to the Abatement
Art. 704. Any private person may abate a public
If the DHO is not consulted prior the abatement the nuisance which is specially injurious to him by
person doing the abating are not necessarily liable. removing, or if necessary, by destroying the thing
which constitutes the same, without committing a
They would be liable for damages only if as stated breach of the peace, or doing unnecessary injury.
under Art. 707 the abatement is carried out with But it is necessary:
unnecessary injury, or if the alleged nuisance
is later declared by the courts to be not a real (1) That demand be first made upon the owner or
nuisance. possessor of the property to abate the nuisance;

Art. 701. If a civil action is brought by reason of the (2) That such demand has been rejected;
maintenance of a public nuisance, such action shall
be commenced by the city or municipal mayor. (The (3) That the abatement be approved by the district
Article explains itself.) health officer and executed with the assistance of
the local police; and

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(4) That the value of the destruction does not CASES IN NUISANCE
exceed three thousand pesos.
Art. 705. The remedies against a private nuisance Facts: Petitioner AC Enterprises, Inc. is the owner
are: and operator of the Feliza Building, a ten-story office
building, which is located at Herrera Street, Legaspi
(1) A civil action; or Village, Makati City. The building operates a central
air-conditioning system with blowers servicing the
(2) Abatement, without judicial proceedings. same. The blowers are located at the rear portion of
the air-conditioning units.

Remedies Against a Private Nuisance Frabelle Properties Corp. is the developer of Frabella
Even criminal prosecution is not mentioned. if 1, a twenty nine-story condominium. According to
indeed a crime has been committed, as defined by private respondent Frabelle Properties Corp., these
the Revised Penal Code, criminal prosecution can blowers are pointed towards its building, which
proceed. creates and unbearable vibrating noise and blasts a
continuing stream of hot air towards Frabella 1
Defenses Condominium affecting the tenants thereof.
Consequently, private respondent instituted a
(a) estoppel, public necessity, complaint for Abatement of Nuisance with
Damages with Prayer for Issuance of a Writ of
(b) the non-existence of the nuisance, Preliminary Injunction against herein petitioner.
Summons was served on petitioner directing it to file
(c) impossibility of abatement. its answer to the complaint. Also, petitioner was
served a notice to appear for hearing on the
Art. 706. Any person injured by a private nuisance application for the writ of preliminary injunction
may abate it by removing, or if necessary by prayed for in the complaint.
destroying the thing which constitutes the
nuisance, without committing a breach of the Instead of filing its answer, petitioner filed its
peace or doing unnecessary injury. However, it is Motion to Dismiss the complaint filed by private
indispensable that the procedure for extrajudicial respondent Frabelle Properties Corp. and the
abatement of a public nuisance by a private person application for preliminary injunction based on the
be followed. following grounds:

The Article explains itself. a) the court has no jurisdiction over the subject
matter of the complaint;
b) the complaint is barred by prior judgment or res
Art. 707. A private person or a public official judicata;
extrajudicially abating a nuisance shall be liable for c) the complaint is barred by litis pendentia;
damages: d) complainant is guilty of forum-shopping; and
e) lack of cause of action.
(1) If he causes unnecessary injury; or
After the filing of their respective position papers,
(2) If an alleged nuisance is later declared by the the judge issued the assailed Order denying
courts to be not a real nuisance. petitioners Motion to Dismiss hence this case.

Damages in Case of Extrajudicial Abatement Issues:

Note that the person liable for damages may be:
(a) a private person, or (1) Is it a nuisance as to be resolved only by the
(b) a public official. courts in the due course of proceedings or a
nuisance per se?

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conditions of the locality and of the needs of the

(2) Is an action for abatement of a private nuisance, maker to the needs of the listener; Injury to a
more specifically noise generated by the blower of particular person in a peculiar position or of
an air-conditioning system, even if the plaintiff prays especially sensitive characteristics will not render
for damages, one incapable of pecuniary estimation? the noise an actionable nuisance. Whether or not
the noise is a nuisance is an issue to be resolved by
(3) What is the determining factor when noise alone the courts.
is the cause of complaint?
Test to determine noise as a nuisance The test is
Held: whether rights of property, of health or of comfort
are so injuriously affected by the noise in question
(1) It is a nuisance to be resolved only by the courts that the sufferer is subjected to a loss [i.e. Actual
in the due course of proceedings; the noise is not a Physical Discomfort]which goes beyond the
nuisance per se. Noise becomes actionable only reasonable limit imposed upon him by the condition
when it passes the limits of reasonable adjustment of living, or of holding property, in a particular
to the conditions of the locality and of the needs of locality in fact devoted to uses which involve the
the maker to the needs of the listener. Injury to a emission of noise although ordinary care is taken to
particular person in a peculiar position or of confine it within reasonable bounds; or in the
especially sensitive characteristics will not render vicinity of property of another owner who, though
the house an actionable nuisance in the creating a noise, is acting with reasonable regard for
conditions, of present living, noise seems the rights of those affected by it.
inseparable from the conduct of many necessary
occupations. Action to abate private nuisance; incapable of
pecuniary estiation an action to abate private
(2) Yes, the action is one incapable of pecuniary nuisance, even wehere the plaintiff asks for damages
estimation because the basic issue is something is one incapable of pecuniary estimation.
other than the right to recover a sum of money.
(3) The determining factor is not its intensity or
volume; it is that the noise is of such character as to AC Enterprises, Inc. v. Frabelle Properties Corp.
produce actual physical discomfort and annoyance
to a person of ordinary sensibilities rendering Facts: A noise emanated from a blower of the air-
adjacent property less comfortable and valuable. conditioning unit of a building.

Private and public nuisance; definition The term Issues:

nuisance is so comprehensive that it has been 1) Is it a nuisance as to be resolved only by the
applied to almost all ways which have interfered courts in the due course of proceedings or a
with the rights of the citizens, either in person, nuisance per se?
property, the enjoyment of property, or his comfort;
A private nuisance is one which violates only private (2) Is an action for abatement of a private nuisance,
rights and produces damage to but one or a few more specifically noise generated by the blower of
persons while a nuisance is public when it interferes an air-conditioning system, even if the plaintiff prays
with the exercise of public right by directly for damages, one incapable of pecuniary
encroaching on public property or by causing a estimation?; and
common injury, an unreasonable interference with
the right common to the general public. In this case, (3) What is the determining factor when noise alone
the noise generated by an airconditioning system is is the cause of complaint?
considered a private nuisance.
Noise emanating from air-con units not nuisance
per se Noise becomes actionable only when it (1) It is a nuisance to be resolved only by the courts
passes the limits of reasonable adjustment to the in the due course of proceedings; the noise is not a

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nuisance per se. Noise becomes actionable only In this case, the dike was constructed in 1937/1938
whenn it passes the limits of reasonable adjustment (before the war) and the action was only brought on
to the conditions of the locality and of the needs of 1951, way beyond the prescription period.
the maker to the needs of the listener. Injury to a Furthermore, Caridad cannot argue that the dams
particular person in a peculiar position or of constitute a nuisance and by virtue of Art. 698, lapse
especially sensitive characteristics will not render of time does not legalize any nuisance, therefore,
the house an actionable nuisance in the her action does not prescribe. First, the
conditions, of present living, noise seems complaint does not set forth any fact which shows
inseparable from the conduct of many necessary that the dam is a nuisance. Even assuming arguendo
occupations. that it is indeed nuisance, Art. 631 which is a more
particular law which applies to easements in
(2) Yes, the action is one incapable of pecuniary particular will prevail over Art. 698 which applied to
estimation because the basic issue is something nuisances in general (simple rule in stat con: apply
other than the right to recover a sum of money. particular provisions over general ones). In such a
case, action had already prescribed
(3) The determining factor is not its intensity or Such action Prescribed because more than 20 years
volume; it is that the noise is of such character as to had elapsed since the partition (prescription: 10
produce actual physical discomfort and annoyance years after partition only).
to a person of ordinary sensibilities rendering PARAS VERSION
adjacent property less comfortable and valuable.
Easement: Natural Drainage of Waters (Property) Ongsiako, et al. v. Ongsiako, et al.

Facts: Plaintiffs had an easement of natural drainage

ONGSIACO V ONGSIACO over defendants land, but the defendants
obstructed the easement by constructing a dam in
Facts: Mother of Caridad & Emilia Ongsiako 1938. The action to destroy the dam was filed in
executed a deed of donation inter vivos, donating to 1951, on the theory, among other things, that the
her children a piece of land. According to the dam was a nuisance and therefore could never be
mother, when she made the donation, a greater legalized. (Art. 698), and that the action could not
area was allotted to Ramon & Emilia because their prescribe. (Art. 1143[2]).
shares were low lands through which flowed the
excess water from higher estates. Later on, she Issue: Has the action prescribed?
learned that Ramon & Emilia started constructing
dikes which impeded the natural flow of water Held: Yes, because of Art. 631 which is an exception
coming from the higher estates. Hence, she to Art. 698. Moreover, granting that the dam was
executed a document revoking the donation in favor originally a nuisance, it must have been due to its
of Ramon and Emilia and adjudicated their revoked interference with the plaintiffs right of drainage; but
shares to Caridad as mojera and the rest in equal since that same right of drainage had become extinct
shares. by non-user for 10 years (1938-1948), after that
period, the dam could no longer interfere with the
Issue: Whether or not there exists a cause of action terminated rights, and was no longer a nuisance
for violation of right of legal easement of water. when this action was instituted in 1951. Moreover,
under the law of nuisances in 1938, while no right to
Held: No, action had already prescribed. maintain a public nuisance could be acquired by
The legal easement of water is classified as prescription, the right to maintain a private nuisance
continuous, therefore subject to prescription by could be acquired by prescription. Since the
non-user for the period required by law. Under Art. defendants prescriptive rights were acquired under
631, easements are extinguished by non-user for 10 said law, any contradictory rule in the new Code
years, which in the case of continuous easements, should not be allowed to operate retroactively to
shall be counted from the day on which an act their prejudice.
contrary to the same took place.

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TIMONER V PEOPLE (5) Hinders or impairs the use of property.

Facts: The petitioner JOSE "PEPITO" TIMONER was ART. 695. Nuisance is either public or private. A
the mayor of Daet and by the recommendation of public nuisance affects a community or
the Municipal Health Officer, he barricaded some neighborhood or any considerable number of
establishments and stalls which protruded into the persons, although the extent of the annoyance,
sidewalk of the Maharlika highway who were not danger or damage upon individuals may be unequal
complying with certain health and sanitation A private nuisance is one that is not included in the
requirement. The petitioner then filed a complaint foregoing definition.
against the owners of the stalls saying that these
stalls constituted public nuisance as well as nuisance Because the barbershop was established/
per se. The owners of the stalls charged the constructed along the sidewalk, and its so panget
petitioner with the offense of grave coercion. talaga and sagabal it needs to be abated.
Issue: Whether or not the complainants were public

Held: The court is in agreement that the

complainants were public nuisance for affecting a
considerable number of persons in their
neighbourhood. Petitioner, as mayor of the town,
merely implemented the aforesaid recommendation
of the Municipal Health Officer. Having then acted in
good faith in the performance of his duty, petitioner
incurred no criminal liability.

Abatement of public nuisance without judicial

proceedings, municipal mayor not criminally liable
when he acted in good faith in authorizing the
fencing of a barbershop for being a public nuisance
because it occupied a portion of the sidewalk. Art
699 authorizes the abatement of a public nuisance
without judicial proceedings.

Articles in the case:Unquestionably, the barbershop

in question did constitute a public nuisance as
defined under Article Nos. 694 and 695 of the Civil
Code, to wit

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

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