V.

CO-OWNERSHIP

A. Definition

The right of common dominion which two or mere persons have in a

spiritual part (or ideal portion) or a thing which is not physically divided.

B. Characteristics

1. The recognition of ideal shares, defined but not physically identified.

2. Each co owner has absolute control over his ideal share;
3. Mutual respect among co-owner in regard to use enjoyment and
preservation of thing as a whole.

C. Differences between partnership and joint tenancy.

D. Differences between partnership and co-ownership.
E. Sources of co-ownership

a. Law, e.g., party walls, hedges and ditches; co-ownership

b. Contract (duration of co-ownership, Art. 494)
c. Succession
d. Chance (Commixtion, hidden treasure)
e. Occupation (harvesting and fishing)

F. Rights of each co-owner as to thing owned in common:

a. To use the thing according to the purpose intended may be altered

by agreement, express or implied, provided:
i. It is without injury or prejudice to interest of co-ownership and;
ii. Without preventing the use of other co-owners, Art. 486

b. To share in the benefits in proportion to his interest, provided the

charges are borne by each in the same proportion (Art. 485)
- Contrary stipulation in void
- Presumption is that portions are equal unless contrary is proved.

c. Each co-owner may bring an action in ejectment (Art. 487)

 d. To compel other co-owner to contribute to expenses for preservation
of the thing or right owned in common and to payment of taxes (Art. 488)

- Co-owner’s option not to contribute by waiving his undivided

interest equal to amount of contribution (exception: if waiver
prejudicial to co-ownership)
- Requisites before repairs for preservation may be made of
expenses for embellishment or improvement may be made (Art.
489)
- Effects of failure to notify co-owners

e. To oppose any act of alteration; remedy of other co-owners

re: acts of alteration (Art. 491)

1. Acts of alteration
Concept
Distinguished from acts of administration Art. 492.
Effect of acts of alteration and remedies of non-consenting
co-owner

Is lease of real property owned in common an act of alteration?

Art. 647 in relation to Art. 1878(8)

f. To protest against acts of majority which are prejudicial to minority

(Art. 492 par. 3)

g. To exercise legal redemption – Art. 1620, 1623

h. To ask for partition – Art. 494

G. Implications of co-owners right over his ideal share:

a. Co-owner has the right:

1. To share in fruits and benefits
2. To alienate, mortgage or encumber and dispose of his ideal share
– (but other co-owners may exercise right of legal redemption)
3. To substitute another person in the enjoyment of thing
 4. To renounce part of his interest to reimburse necessary expenses
incurred by another co-owner (art. 488)

b. Effect of transaction by each co-owner

1. Limited to his share in the partition

2. Transferee does not acquire any specific portion of whole
property until partition
3. Creditors of co-owners may intervene in partition or attack the
same if prejudicial (Art. 497)

H. Are the rules on co-ownership applicable to conjugal partnership of gains

or absolute community of property?
I. Special rules on ownership based on provisions of Condominium Act (RA
No. 4726)
1. Concept of Condominium
2. Essential requisites for Condominium
3. Rights and Obligations of Condominium owner

J. Extinguishment of co-ownership

1. Total destruction of thing

2. Merger of all interests in one person
3. Acquisitive prescription
a. By a third person
b. By one co-owner as against the other co-owners requisites
and unequivocal acts of:

i. Unequivocal acts of repudiation of co-ownership (acts

amounting to ouster of other co-owners) known to other co-owners and
shown by clear and convincing evidence

ii. Open and adverse possession, not mere silent extraordinary

acquisitive prescription.

iii. The presumption is that possession by co-owner is not adverse

 4. Partition or Division

a. Right to ask for partition at any time except:

i. When there is a stipulation against it (not over ten years)
ii. When condition of indivision is imposed by transferor
(donor or testator) not exceed 20 years – Art. 494
iii. When the legal nature of community prevents partition
(party wall)
iv. When partition is generally prohibited by law (e.g.
absolute community of property)
v. When partition would render the thing unserviceable (but
the thing may be sold and co-owners divide the proceeds (
Art. 494)

Action for partition will fail if acquisitive prescription has set in.

b. Effect of Partition
Arts. 1091, 543, 1092-1093, 499-501
c. Right of Creditors of individual co-owners Art. 497
d. Procedure for Partition – Rule 69 Rules of Court
VI. POSSESSION

A. Definition and Concept (Art. 523)

Possession is the holding of a thing or the enjoyment of a right, whether

by material occupation or by the fact that the thing or the right is subjected to
the action of our will.

It is a real right independent of and apart from ownership i.e., the right of
possession (jus possession is as distinguished from the right to possess [just
possidendi]

1. Essential requisites of possession:

a. Holding or control or control of a thing or right (corpus) consists of

either
i. The material or physical
ii. Exercise of a right
iii. Constructive possession

b. Intention to possess (animus possidendi)

B. Degrees of holding or possession

1. Mere holding or possession without title whatsoever and in violation

of the right of the owner, e.g. possession of a thief or a usurper of land.

2. Possession with juridical title but not that of ownership e.g. possession
of tenant, depository agent, bailee, trustee, lessee, antichretic creditor. This
degree of possession will never ripen into full ownership as long as there is no
repudiation of concept under which property is held.

3. Possession with just title or title sufficient to transfer ownership, but

not from the true owner e.g. possession of a vendee from vendor who pretends
to be the owner.
This degree of possession ripens into full ownership by lapse of time.
 4. Possession with just title from the true owner. The delivery of
possession transfers ownership, and strictly speaking, is the jus possidendi.

C. Cases of possession:

1. Possession for oneself, or possession exercised in one’s own name and

possession in the name of another – (Art. 524)

2. Possession in the concept of an owner and possession in the concept of a

holder with the ownership belonging to another (Art. 525)

3. Possession in good faith and possession in bad faith (Art. 526)

Mistake upon a doubtful or difficult question of law as a basis of good

faith.

D. What things or rights susceptible of appropriation may be the object of

possession (Art. 530)

E. What may not be possessed by private persons

a. Res communes
b. Property of public dominion
c. Right under discontinuous and/or non-apparent easement

F. Acquisition of Possession

1. Ways of acquiring possession (Art. 531)

a. Material occupation to the thing

i. The doctrine of constructive possession

ii. Includes constructive delivery;

1. Traditio brevi manu (thing already in transferee’s hands, e.g.

under a contract of lease, then delivered under a sale)
 2. Traditio constitutum possessorium (thing remains in
trasferror’s hands, e.g. sale, then retained under a commodatum)

b. Subjection to the action of our will

Includes traditio longa manu and traditio symbolica

c. Proper acts and legal formalities – refers to the acquisition of possession by

sufficient title, intervivos or mortis causa, lucrative or onerous. Example:
donations, succession ( testate on intestate), contracts, judicial writs of
possession, writ of execution of judgments execution and registration of
public instruments.

2. By whom may possession be acquired: (Art. 532)

a. By same person; elements of personal acquisition

b. By his legal representative; requisites
c. By his agent
d. By any person without any power whatsoever but subject to
ratification, without prejudice to proper case of negotiorum gestio (Art.
2144), 4129, 2150)
e. Qualifiedly, minors and incapacitated persons (Art. 525)

3. What do not affect possession (Art. 537, 1119)

a. Acts merely tolerated

b. Acts executed clandestinely and without the knowledge of the
possessor
c. Acts by violence as long as possessor objects thereto (i.e. he files a
case) (Art. 536)

4. Rules to solve conflict of possession (Art. 538)

General Rule: Possession cannot be recognized in two different

personalities, except in cases of co-possession by co-possessors without
conflicting claims or interest.

In case of conflicting possession – preference is given to:

 a. Present possessor or actual possessor
b. If there are two or more possessors, the one longer in possession
c. If dates of possession are the same, the one who presents a title
d. If all conditions are equal, the thing shall be place in judicial deposit
pending determination of possession or ownership through proper
proceedings

G. Effects of Possession

1. In general, every possessor has a right to be respected in his

possession; if disturbed therein, possessor has right to be protected in or restored
to said possession (Art. 539)

a. Action to recover possession

i. Summary proceedings – forcible entry and unlawful

detainer. Plaintiff may ask for writ of preliminary
mandatory injunction.
ii. accion publiciana (based on the superior right of possession,
not of ownership)
iii. accion Revindicatoria (recovery of ownership)
iv. Action for replevin (possession or ownership for
movable property)

2. Possessor can employ self-help (Art. 429)

3. Entitlement to fruits – possessor in good faith / bad faith

4. Reimbursement for expenses –possessor in good faith /bad faith

Liability for loss or deterioration of property by possessor
in bad faith. (Art. 553; 552)

5. Possession of movable acquired in good (in concept of owner) is

equivalent to title (Art. 559)

- Possessor has actual title which is defeasible only by true owner

 - One who has lost a movable or has been unlawfully deprived
thereof may recover it without reimbursement, except if possessor
acquired it at a public sale.

H. Effect of possession in the concept of owner:

a. Possession may ripen into full ownership, subject to certain

exceptions
b. Presumption of just title and cannot be obliged to show or prove it
(Art. 541); exceptions (Art. 1131)
c. possessor may bring all actions necessary to protect his possession
except accion reivindicatoria
d. May employ self-help under Art. 429
e. Possessor may ask for inscription of such real right of possession
in the registry of property
f. Has right to the fruits and reimbursement for expenses (assuming
he is a possessor in good faith)
g. Upon recovery of possession which he has been unlawfully
deprived may demand fruits and damages.
h. Generally, he can do on the things possessed everything that the
law authorizes owner to do until he is ousted by one who has a
better right.
i. Possession in good faith and possession in bad faith. (Art. 528).

I. Presumptions in favor of the possessor:

1. Of good faith until the contrary is proved (Art. 527)

2. Of continuity of initial good faith in which possession was

commenced or possession in good faith does not lose this character
except in the case and from the moment possessor became aware
or is not unaware of improper or wrongful possession. (Art. 528).

3. Of enjoyment of possession in the same character in which

possession was acquired until contrary is proved (Art. 529)
 4. Of non-interruption of possession in favor of present possessor
who proves possession at a previous time until the contrary is
proved (Art. 554) Arts. 112-1124)

5. Of continuous possession or non-interruption of possession of

which he was wrongfully deprived for all purposes favorable to
him (Art. 561)

6. Other presumptions with respect to specific properties of property

rights:

i. Of extension of possession of real property to all movables

contained therein so long as it is not shown that the should be
excluded; exceptions (Art. 426).
ii. Non-interruption of possession of hereditary property (Art. 533 &
1078)
iii. Of just title in favor of possessor in concept of owner (Art. 541;
but also see Art. 1141).

J. Possession may be lost by:

a. Abandonment
b. Assignment, either onerous or gratuitous
c. Destruction of total loss of thing or it goes out of commerce
d. Possession by another, if possession has lasted longer than one
year; real right of possession not lost until after ten (10) years.
- subject to art. 537 (acts merely tolerated, etc.)