FAUSTO R. PREYSLER, JR., petitioner, vs.

COURT OF APPEALS and FAR EAST ENTERPRISES,

INC.,respondents.G.R. No. 158141 July 11, 2006

FACTS: Petitioner Fausto Preysler, Jr. and his wife owned lots in the Tali Beach Subdivision and
also twoparcels of land adjacent to the subdivision. The subdivision was owned by respondent
Far EastEnterprises, Inc.To gain access to the two parcels petitioner has to pass through private
respondent'ssubdivision. Petitioner offered P10,000 for the easement of right of way but private
respondent refusedit for being grossly inadequate. Hence, the latter barricaded the front gate of
petitioner's property toprevent petitioner and his family from using the subdivision roads to
access said parcels.Petitioner then filed with the RTC a Complaint for Right of Way with prayer
for preliminaryprohibitive injunction against private respondent. The trial court issued an Order
for private respondent

to remove the barricade and refrain from hindering petitioners entry

and exit from the subjectproperties and for the free passage of petitioner in the subdivision of
private respondent pending thelitigation.Sometime thereafter, petitioner used the subdivision
road to transport heavy equipment andconstruction materials to develop his property.
Consequently, private respondent moved to dissolve thewrit of preliminary injunction claiming
that the petitioner violated its right to peaceful possession andoccupation of Tali Beach
Subdivision when petitioner brought in heavy equipment and constructionmaterials. On the
other hand, petitioner prayed that his contractors, visitors, and other representativesbe allowed
access and persons he has authorized be allowed to install power lines over privaterespondent's
property. The

trial court amended the writ granting petitioners prayer.

On appeal, the Court of Appeals set aside the amended writ and reinstated the original
writ.ISSUE: Whether or not the right of passage allowed in the uncontested original writ applies
not only tothe petitioner and his household, but also to his visitors, contractors, construction
workers, authorizedpersons, heavy equipment machinery, and construction materials as well as
the installation of powerlines.HELD: The Court partially granted the petition. It held that the writ
issued by the trial court is to preservestatus quo. Necessarily, it does not cover the use of the
subdivision roads for ingress and egress of construction workers, heavy equipment, delivery of
construction materials, and installation of powerlines since there were no improvements
introduced then. But under Article 656 of the New Civil Code, if the right of way is indispensable
for the construction, repair, improvement, alteration or beautificationof a building, a temporary
easement is granted after payment of indemnity for the damage caused tothe servient estate.In
the present case, the trial court found that irrespective of which route petitioner used ingaining
access to his property, he has to pass private respondent's subdivision. Thus, petitioner may
begranted a temporary easement after the payment of the proper indemnity. Hence, the court
orderedprivate respondent to allow the right of passage thru the subdivision by the petitioner's
visitors andguests, contractors, construction workers, heavy equipment vehicles, and delivery
constructionmaterials. But the Court did not allow the installation of electric power lines
because it is a permanenteasement which is not covered by Article 656

Avila vs. BARABAT

FACTS:The subject of this controversy is a portion of a 433-square meter parcel of land located in
Poblacion, Toledo City, Cebu. The entire property isdesignated as cadastral lot no. 348 registered
in the name of Anunciacion Bahena vda. de Nemeo. Upon her death, ownership of the lot
wastransferred by operation of law to her five children, petitioners Narcisa Avila, Natividad
Macapaz, Francisca Adlawan, Leon Nemeo and JoseBahena. These heirs built their respective
houses on the lot.In 1964, respondent Benjamin Barabat leased a portion of the house owned by
Avila. His co-respondent, Jovita Barabat, moved in with him in1969 when they got married.Avila
subsequently relocated to Cagayan de Oro City. She came back to Toledo City in July 1979 to sell
her house and share in the lot to hersiblings but no one showed interest in it. She then offered it
to respondents who agreed to buy it. Their agreement was evidenced by a privatedocument
dated July 17, 1979.

Respondents stopped paying rentals to Avila and took possession of the property as owners.
They also assumed the payment of realty taxes onit.Sometime in early 1982, respondents were
confronted by petitioner Januario Adlawan who informed them that they had until March 1982
only

to stay in Avilas place because he was buying the property. Respondents replied that the
property had already been sold to t

hem by Avila. Theyshowed Adlawan the July 17, 1979 document executed by Avila.On January 6,
1983, respondents received a letter from Atty. Joselito Alo informing them that Avila had sold
her house and share in lot no. 348to his clients, the spouses Januario and Nanette Adlawan.
Considering the sale to the spouses Adlawan as prejudicial to their title and peacefulpossession
of the property, they demanded that Avila execute a public document evidencing the sale of the
property to them but Avila refused.Respondents filed a complaint for quieting of title with the
Regional Trial Court (RTC) of Toledo City, Branch 29.3 Docketed as Civil Case No. T-53, the
complaint was subsequently amended to include annulment of the deed of sale to the spouses
Adlawan, specific performance, partitionand damages as additional causes of action.
Respondents anchored their claim over the property to the July 17, 1979 private document
whichthey presented as Exhibit "A."Avila denied having offered to sell her property to
respondents. She claimed that respondents gave her an P8,000 loan conditioned on hersigning a
document constituting her house and share in lot no. 348 as security for its payment. She
alleged that she innocently affixed hersignature on Exhibit "A" which was prepared by
respondents and which they now claim as a private deed of sale transferring ownership
tothem.HELDArt. 1623. The right of legal pre-emption or redemption shall not be exercised
except within thirty days from the notice in writing by theprospective vendor, or by the vendor,
as the case may be. The deed of sale shall not be recorded in the Registry of Property,
unlessaccompanied by an affidavit of the vendor that he has given written notice thereof to all
possible redemptioners.The right of redemption of co-owners excludes that of adjoining
owners.Petition

ers right to redeem would have existed only had there been co

-ownership among petitioners-siblings. But there was none. For thisright to be exercised, co-
ownership must exist at the time the conveyance is made by a co-owner and the redemption is
demanded by the otherco-owner or co-owner(s).7 However, by their own admission, petitioners
were no longer co-owners when the property was sold to respondentsin 1979. The co-ownership
had already been extinguished by partition.The regime of co-ownership exists when the
ownership of an undivided thing or right belongs to different persons.8 By the nature of co-
ownership, a co-owner cannot point to any specific portion of the property owned in common as
his own because his share in it remainsintangible and ideal.

The purpose of partition is to separate, divide and assign a thing held in common among those
to whom it belongs.14 By their ownadmission, petitioners already segregated and took
possession of their respective shares in the lot. Their respective shares were thereforephysically
determined, clearly identifiable and no longer ideal. Thus, the co-

ownership had been legally dissolved. With that, petitioners

right to redeem any part of the property from any of their former co-owners was already
extinguished. As legal redemption is intended tominimize co-ownership,15 once a property is
subdivided and distributed among the co-owners, the community ceases to exist and there isno
more reason to sustain any right of legal redemption.