Civil Law Review: Property – Paras Notes 1

CIVIL CODE OF THE PHILIPPINES 1. Within the commerce of man

by: JUSTICE EDGARDO L. PARAS 2. Outside the commerce of man
(d) Existence
BOOK TWO 1. Present property (res existentes)
2. Future property (res futurae)
PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS (e) Materiality or Immateriality
1. Tangible or corporeal (res corporales)
TITLE I. – CLASSIFICATION OF PROPERTY • Objects which can be seen and touched
2. Intangible or incorporeal
PRELIMINARY PROVISIONS • Rights or credits
(f) Dependence or Importance
PROPERTY 1. Principal
▪ “BIENES” 2. Accessory
▪ An object that which is, or may be, appropriated (Art. 414, (g) Capability of Substitution
NCC). 1. Fungible
▪ That branch of civil law which classifies and defines the • Capable of substitution by other thingks
different kinds of appropriable objects, provides for their of the same quantity and quality
acquisition and loss, in general, treats of their nature and 2. Non-fingible
consequences of real rights. • Incapable of substitution, hence, the
▪ Involves not only material objects but also intangible things, e.g. identical thing must be given or returned
rights or credits. (h) Nature or Definiteness
1. Generic
Thing • One referring to a group or class
▪ “COSAS” 2. Specific
▪ Broader in scope for it includes both appropriable and non- • One referring to a single, unique object
appropriable objects. (i) Whether in the Custody of the Court or Free
▪ Classification: 1. In custodia legis
• RES NULLIUS (belonging to no one) • In the custody of the court
o Things that belong to no one. 2. Free property
Reason: • Not in custodia legis
− They have not yet been
appropriated. Characteristics of PROPERTY:
− They have been abandoned (RES 1. UTILITY for the satisfaction of moral and economic wants
DERELICTAE) by the owner with 2. SUSCEPTIBILITY of appropriaton
the intention of no longer owning 3. INDIVIDUALITY or substantivity
them. • It can exist by itself, and not merely as a
Examples: part of a whole.
− Wild animals (FERAE NATURAE) o Thus, the human hair becomes
− Wild birds property only when it is
− Pebbles lying on the seashore. detached from the owner.
• RES COMMUNES (belonging to everyone)
o Things which, while not owned in common, ART. 414. All things which are or may be the object of
are really owned by everybody in that their appropriation are considered either:
use and enjoyment are given to all of (1) Immovable or real property; or
mankind. (2) Movable or personal property.
Examples:
− Air Importance of classification:
− Wind ▪ Diff. provisions of the law govern the ACQUISITION,
− Sunlight POSSESSION, DISPOSITION, LOSS, and REGISTRATION of
− Starlight immovables and movables.
• RES ALICUJUS (belonging to someone)
o Objects, tangible or intangible, which are
owned privately, either in a collective or Real Personal
individual capacity. Must be in a public Needs only to be in
Examples: Donation
instrument a private instrument
− Book
− Shares of stock Acquisition of
− Parcel of land Ownership by
30 years 8 years
Prescription (with
Classfication of PROPERTY: Bad Faith)
(a) Mobility and non-mobility
1. Movable or personal property Must be recorded in
Binding Effect on Recording not
2. Immovable or real property the Registry of
Third Persons required.
(b) Ownership Property
1. Public dominion or ownership
2. Private dominion or ownership
MIXED / SEMI-IMMOVABLE PROPERTY
(c) Alienability

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Civil Law Review: Property – Paras Notes 2

▪ Movable properties (like machines or removable houses or membet of the immediate family of the decedent (that
transplantable trees) which under certain conditions, may be includes a still-born infant or fetus) may donate all or
considered immovable for certain specified purposes. any part of the decedent’s body for any purpose
▪ NOT included in the Civil Code. specified:
1. Spouse
IMMOVABLE PROPERTY 2. Son or daughter of legal age
▪ “Bienes immuebles” 3. Either parent
▪ Real 4. Brother or sister of legal age
▪ “Res immobiles” 5. Guardian over the person of the decedent at
the time of his death.
MOVABLE PROPERTY • Donation may be made after or immediately before
▪ “Bienes muebles” death.
▪ Personal ▪ Manner of executing a legacy:
▪ “Res mobiles” • By will.
o Legacy becomes effective upon a testator’s
RECLASSIFICATION death without waiting for probate of the will.
▪ th act of specifyinf how agricultural lanfs shall be utlized for o If the will is not probated or if declated
non-agricultural uses e.g. residential, industrial, or commercial invalid for testamentary purposes, the
(as embodied in the land use plan) subject o the requirements legacy, to the extent that it was executed in
and procedures for land use conversion. good faith, is valid and effective.
• In any document other than a will.
CONVERSION o Donor’s card / any paper designed to be
▪ the act of changing the current use of a piece of agricultural land carried on a person.
into some other use as approved by the DAR. − Must be signed by the testaor in
the presence of two witnesses who
▪ Court proceedings are indispensable where the classification/ must sign the document in his
conversion of a landholding in duly-determined before ejectment presence.
can be effected, which, in turn, paves the way for the payment of o Legacy becomes effective upon the death of
disturbance compensation (Ludo & Luym Dev’t. Corp. v. the testator and shall be respected by and
Barretto (2005)). binding upon the testator’s:
1. Executor
HUMAN BODY 2. Administrator
▪ The human body, whether alive or dead, is NEITHER REAL 3. Heirs
NOR PERSONAL property. 4. Assign
▪ It is NOT EVEN PROPERTY at all, in that, it generally cannot 5. Successors-in interest
be appropriated. 6. All members of the family.
▪ It is a thing or being (for it exists). o Legacy may be made to a specified legatee
• It is tangible/corporeal. or without specifyinf a legatee.
• HUMAN SOUL: intangible/incorporeal. o The testator may designate in hs will, card,
▪ Whule a human being is alive, he cannot, as such, be the object or other document, the surgeon or physician
of a contract, for he is considered outside the commerce of man. who will carry out the appropriate
• Nonetheless, he may: procedures.
o Offer to another the use of various parts of ▪ International Sharing of Human Organs or Tissues
or his entire body in obligations requiring • Made only thru exchange programs duly approved by
demonstration of strength or posing in the DOH.
several ways. • Reciprocity rule applies.
o Donate part of his blood. • ORGAN BANK STORAGE FACILITIES
o Sell part of his hair. o Facility licensed, accredited, or approved
• BUT he cannot sell his body. under the law for storage of human bodies or
parts thereof.
ORGAN DONATION ACT OF 1991 ▪ Rules and Regulations
▪ RA 7170, as amended, February 24, 1992. • The Sec. of Health shall endeavor to persuade all
▪ “An Act Authorizing the Legacy or Donation of All or Part of a health professionals, both government and private, to
Human Body After Death for Specified Purposes” make an appeal for human organ donation.
• DEATH: the irreversible cessation of circulatory and
respiratory functions or the irreversible cessation of all Chapter 1 – IMMOVABLE PROPERTY
functions of the entire brain, including the brain
system. ART. 415. The following are immovable property:
▪ Persons who may execute a legacy: (1) Land, buildings, roads and constructions of all kinds
• Any individual, at least 18 years of age and of sound adhered to the soil;
mind. (2) Trees, plants, and growing fruits, while they are attached to
• This is to take effect after his/her death. the land or form an integral part of an immovable;
▪ Persons who may execute a donation: (3) Everything attached to an immovable in a fixed manner, in
• Any of the ff. persons, in the order of priority stated, in such a way that it cannot be separated therefrom without
the absence of actual notice of contrary intentions by breaking the material or deterioration of the object;
the decedent or actual notice of contrary intentions by (4) Statues, reliefs, paintings, or other objects for use or
the decedent or actual notice of opposition by a ornamentation, placed in buildings or on lands by the owner

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Civil Law Review: Property – Paras Notes 3

of the immovable in such a manner that it reveals the party will be prejudiced. However, it cannot
intention to attach them permanently to the tenements; be sold extra-judicially under Act 3135
(5) Machinery, receptacles, instruments or implements intended (Luna v. Encarnacion).
by the owner of the tenement for an industry or works which o There is no legal compulsion to register
may be carried on in a building or on a piece of land, and transactions over buildings that do not
which tend directly to meet the needs of the said industry or belong to the owners of the lands on which
works; they stand. There is no registry of buildings
(6) Animal houses, pigeon-houses, beehives, fish ponds or apart from the land (Manalansan v.
breeding places of similar nature, in case their owner has Manalang (1960)).
placed them or preserves them with the intention to have o Registrar’s Ministerial Duty: When partes
them permanently attached to the land, and forming a present to the registrar of property a
permanent part of it; the animals in these places are document of chattel mortgage, the registrar
included; must record it as such even if in his opinion,
(7) Fertilizer actually used on a piece of land; the object of the contract is real property
(8) Mines, quarries, and slag dumps, while the matter thereof (Standard Oil Co. v. Jaranillo).
forms part of the bed, and waters either running or ▪ CONSTRUCTION OF ALL KINDS
stagnant; • RP by incorporation.
(9) Docks and structures which, though floating, are intended by • Attachment must be more or less permanent.
their nature and object to remain at a fixed place on a river, • There must be intent to permanently annex the same.
lake, or coast;
(10) Contracts for public works, and servitudes and other real “TREES, PLANTS, AND GROWING FRUITS, WHILE THEY ARE
rights over immovable property. ATTACHED TO THE LAND OR FORM AN INTEGRAL PART OF AN
IMMOVABLE”
IMMOVABLE PROPERTY ▪ TREES AND PLANTS
▪ Art. 415 does NOT give an absolute criterion as to which • RP by nature – if spontaneous products of the soil.
properties are real, and which are personal. • RP by incorporaton – if they were planted thru labor.
• If detached or uprooted from the land, PERSONAL.
Academic Classification of Real Properties: o EXCEPT: uprooted timber on timberland.
1. Real property by NATURE (trees and plants) − Still an “integral part” of
2. Real property by INCORPORATION (building) timberland.
3. Real property by DESTINATION or PURPOSE (machinery • Deemed part of the land to which they are annexed.
placed by the owner of a tenement on it for direct use in an o EXCEPT: when rights or interests in such
industry to be carried on therein) trees or plants are claimed in the registration
4. Real property by ANALOGY (right of usufruct, contract for proceednings by others.
public works, easements and servitudes, or sugar quotas) ▪ GROWING CROPS ON ONE’S OWN LAND
• RP by incorporation.
“LAND, BUILDINGS, ROADS, AND CONSTRUCTIONS OF ALL • They are attached in the same way as RP.
KINDS ADHERED TO THE SOIL” • BUT they are deemed personal in the ff. instances:
▪ LAND o Under chattel mortgage law.
• RP by nature. o Sale of growing crops (harvest).
• Even if moved by an earthquake, an extraordinary ▪ GROWING CROPS ON ANOTHER’S LAND
happening, the land is still immovable. • RP by incorporation.
• However, a shoveful of land is a personal property • As long as they are still attached to the land.
since this no longer adheres to the soil. • Once they have been severed, even if left still
• If rented, it is still immovable. scattered or lying about the land, PERSONAL.
▪ BUILDINGS ▪ GROWING CROPS
• RP by incorporation. • “standing crops”
• Immovable if they are more or less of a permanent • “ungathered fruits”
structure, substantially adhering to the land, and not • “growing fruits”
mere superimpositions on the land.
• There should be an intent of permanent annexation. “EVERYTHING ATTACHED TO AN IMMOVABLE IN A FIXED
o ADHERED, not superimposed. MANNER, IN SUCH A WAY THAT IT CANNOT BE SEPARATED
• The law does not distinguish as to who built or owns THEREFROM WITHOUT BREAKING THE MATERIAL OR
the building (Ladera v. Hodges). DETERIORATION OF THE OBJECT”
o The mere fact that the parties decided to deal ▪ RP by incorporation.
with the building as personal property does ▪ “Res vinta”
not change its character as real property ▪ The injury or breakage or deterioration in case of separation
(Leung Yee v. Strong Machinery Co.). must be substantial.
• If dismantled, personal property. ▪ If the properties are temporarily removed, even if there is an
o Building which would be the object of intention to replace them – PERSONAL.
immediate demolition – PERSONAL.
• In itself, may be mortgaged apart from the land on
which it has been built (Prudential Bank v. Panis Par. 3 Par. 4
(1988)). Cannot be separated from C a n b e s e p a r a t e d f r o m
o Note: A building may be subjected to a immovable without breaking or immovable without breaking or
chattel mortgage if (1) the parties to the deterioration deterioration
contract so agree, and (2) no innocent third

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Civil Law Review: Property – Paras Notes 4

• Even if the animals are temporarily outside – REAL,

Need not be placed by the Must be placed by the owner, or
as long as the intent to return is present.
owner ny his agent, express or implied • CRIM POV: PERSONAL – may be the object of theft
RP by incorporation RP by incorporation and or robbery.
destination • Alienation – as PERSONAL, unless the building or
the tenement is itself also alienated.
• Donation need not be in a public instrument.
“STATUES, RELIEFS, PAINTINGS OR OTHER OBJECTS FOR USE ▪ BIRD CAGES
OR ORNAMENTATION, PLACED IN BUILDINGS OR ON LAND BY • Temporary bird cage easily removable or which may
THE OWNER OF THE IMMOVABLE IN SUCH A MANNER THAT be carried from place to place + birds inside –
I T R E V E A L S T H E I N T E N T I O N T O AT TA C H T H E M CHATTEL.
PERMANENTLY TO THE TENEMENTS”
▪ RP by incorporation and destination. “FERTILIZER ACTUALLY USED ON A PIECE OF LAND”
▪ “Owner” – owner of the immovable, not necessarily of the ▪ If on a barn or those wrapped inside some newspapers or toher
object. covering – PERSONAL.
▪ They must actually be used or spread over the land.
“ M A C H I N E R Y, R E C E P TA C L E S , I N S T R U M E N T S , O R
IMPLEMENTS INTENDED BY THE OWNER O THE TENEMENT “MINES, QUARRIES, AND SLAG DUMPS WHILE THE MATTER
FOR AN INDUSTRY OR WORKS WHICH MAY BE CARRIED ON IN THEREOF FORMS PART OF THE BED, AND WATERS, EITHER
A BUILDING OR ON A PIECE OF LAND, AND WHICH TEND RUNNING OR STAGNANT”
DIRECTLY TO MEET THE NEEDS OF THE SAID INDUSTRY OR ▪ MINES
WORKS” • Mines + minerals attached thereto – REAL.
▪ RP by destination/purpose. • Extracted minerals – CHATTEL.
▪ Essential Requisites: ▪ SLAG DUMP
1. The placing must be made by the owner of the • The dirt and soil taken from a mine and piled upon the
tenement, his agent, or duly authorized legal surface of the ground.
representative. • Inside the “dump” can be found the minerals
2. The industry or works must be carried on in the (Nordstrom v. Sivertson-Johnson).
building or on the land. ▪ “WATERS”
3. Adaptability, i.e. the machine must tend directly to • Those still attached to or running thru the soil or
meet the needs of the said industry or works. ground.
4. The machines must be essential and principal elements • “WATER” – PERSONAL.
in the industry, and not merely incidental. • canals, rivers, lakes, and such part of the sea – REAL.
▪ Effects of Separation:
• If still in the building but not longer used in the “DOCKS AND STRUCTURES WHICH, THOUGH FLOATING, ARE
industry conducted therein – CHATTEL. INTENDED BY THEIR NATURE AND OBJECT TO REMAIN AT A
• If still needed for the industry but separated from the FIXED PLACE ON A RIVER, OR COAST”
tenement temporarily – IMMOVABLE. ▪ FLOATING HOUSE
▪ Immobilization by destination or purpose cannot generally be • If tied to a shore or bank post and used as a residence
made by a person whose possession of the property is only – REAL.
temporary, otherwise, there will be a presumption that he o The classification of the accessory (floating
intended to give the property permanently away in favor of the house) follows the classification of the
owner of the premises. principal (waters).
• Machinery placed on property by a tenant does not • If it makes a point to journey from place to place –
become immobilized. VESSEL.
• When, however, a tenant places it there pursuant to a ▪ VESSEL
contract that it shall belong to the owner, it becomes • PERSONAL.
immobilized as to that tenant and his assigns having • Partake to a certain extent the nature and conditions of
notice, although it does not become so as to the REAL property because of their value and importance
creditors not having legal notice of the lease (Valdez v. in the world of commerce.
Centeal Altagracia). o Art. 1544, Civil Code applies to vessels.
• Machinery which is movable in its nature becomes
immoblized when place in a plant, but not when so “CONTRACTS FOR PUBLIC WORKS, AND SERVITUDES AND
placed by a tenant, usufructuary, or a person having OTHER REAL RIGHTS OVER IMMOVABLE PROPERTY”
only a temporary right, unless such person acted as the ▪ RP by analogy.
agent of the owner (Davao Sawmill Co. v. Castillo). ▪ CONTRACTS FOR PUBLIC WORKS
• Old Civil Code – “administrative concessions for
“ANIMAL HOUSES, PIGEON-HOUSES, BEEHIVES, public works”.
FISHPONODS OR BREEDING PLACES OF SIMILAR NATURE, IN ▪ RIGHTS
CASE THEIR OWNER HAS PLACED THEM OR PRESERVES • Does not refer to the material things.
THEM WITH THE INTENTION TO HAVE THEM PERMANENTLY
ATTACHED TO THE LAND AND FORMING A PERMANENT PART Chapter 2 – MOVABLE PROPERTY
OF IT; THE ANIMALS IN THESE PLACES ARE INCLUDED”
▪ “HOUSES” no longer necessary. ART. 416. The following things are deemed to be personal
• This is covered by Par. 1. property:
▪ ANIMALS (1) Those movables susceptible of appropriation which are not
included in the preceding article;

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Civil Law Review: Property – Paras Notes 5

(2) Real property which by any special provision of law is and connected with the corporation, and this
considered as personalty; class is inseparable from the domicile of the
(3) Forces of nature which are brought under control by science; corporation itself (Black Eagle Mining Co. v.
and Conroy).
(4) In general, all things which can be transported from place to o If, however, the suit is directed not against
place without impairment of the real property to which they the corporation itself but involves the
are fixed. commission of a crime – one element of
which may be the ownership of shares of
▪ GROWING CROPS stock – the domicile of the corporation is not
• The right to the growing crops mobilizes (makes an important factor, as long as any other
personal, as contradistinguished from immobilization) element of the crime is committed
the crops by ANTICIPATION. elsewhere, for instance, the place where the
o The existence of a right on the growing crop criminal case is brought (Hernandez v.
is a mobilization by anticipation, a gathering Albano (1967)).
as it were, in advance, rendering the crop
movable. ART. 418. Movable property is either consumable or non-
consumable. To the first clas belong those movables which cannot
Three Tests To Determine Whether Property is MOVABLE or be used in a manner appropriate to their nature without their
IMMOVABLE: being consummed; to the second class belong all the others.
(a) If the property is being carried from place to place (test by
DESCRIPTION); CONSUMABALE
(b) If such change in location can be made without inuring the real ▪ Those that cannot be used according to its nature without its
property to which it may in the meantime be attached (test by being consumed.
DESCRIPTION); and
(c) If the object is not one of those enumerated or inclued in Art. NON-CONSUMABLE
415 (test by EXCLUSION). ▪ Any other kind of movable property.
• This is the superior test.
Classification and Examples:
▪ INTELLECTUAL PROPERTIES (a) According to their nature:
• PERSONAL a. Consumable
b. Non-consumable
▪ PERSONAL EFFECTS (b) According to the intention of the parties:
• PERSONAL a. Fungible (res fungibles)
• Include only such tangible property as applied to a • Those replaceable by an equal quality and
person. quantity, either by nature of things, or by
common agreement.
ART. 417. The following are also considered as personal • If it is agreed that the equivalent be returned.
property: b. Non-fungible (res nec fungibles)
(1) Obligations and actions which have for their object movables • Those irreplaceable because the identical object
or demandable sums; and must be returned.
(2) Shares of stock of agricultural, commercial and industrial • If it is agreed that the identical thing be returned,
entities, although they may have real estate. even though by nature it is consumable.
o EX: If rice (a consumable) is for
“OBLIGATIONS AND ACTIONS WHICH HAVE FOR THEIR exhibition only (ad ostentationem)
OBJECT MOVABLES OR DEMANDABLE SUMS”
▪ OBLIGATIONS • If credit transactions, a loan of rice for
• Rights or credits. consumption is a simple loan or mutuum, while a
• NOTE: The classification of the accessory follows the loan of rice for exhibition is a commodatum.
principal.
Chapter 3 – PROPERTY IN RELATION TO THE PERSON TO
“SHARES OF STOCK OF AGRICULTURAL, COMMERCIAL AND WHOM IT BELONGS
INDUSTRIAL ENTITIES, ALTHOUGH THEY MAY HAVE REAL
ESTATE” ART. 419. Property is either of public dominion or of private
▪ SHARES OF STOCK ownership.
• Even if the sole property of a corporation should
consists only of real property, a share of stock in said Property Classification Accdg. to OWNERSHIP
corporation is considered personal property (Cedman (a) In a public capacity (dominio publico)
v. Winslow). • Entrusted to executive officials (Heirs of Proceso
• All shares in all juridical persons should be considered Bautista v. Sps. Barza (1992)).
personal property for there is no reason to discriminate (b) In a private capacity (propiedad privado)
between shares in a corporation, and shares in other • Regarding the State, it may own properties both in its
juridical persons. public capacity (properties of public dominion) and in
• Enforcement of Property Rights: its private capacity (patrimonial property).
o Peculiar kind of personal property.
o Can only be exercised or enforced where the ART. 420. The following things are property of public dominion:
corporation is organized and has its place of
business, and can exist only as an incident to

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Civil Law Review: Property – Paras Notes 6

(1) Those intended for public use, such as roads, canals, rivers, • In littoral lands, he who loses by the encroachments of
torrents, ports and bridges constructed by the State, banks, the sea should gain by its recession (Cantoja v. Lim
shores, roadsteads, and others of similar character; (2010)).
(2) Those which belong to the State, without being for public
use, and are intended for some public service or for the TORRENT
development of the national wealth. ▪ That amount of water which in case of heavy rains gathers in
deep places or canals where it is supposed to flow afterwards.
PUBLIC DOMINION
▪ Ownership by the State in that the State has control and CANALS
administration. ▪ If constructed by the State anddevoted to public use – PUBLIC.
▪ Ownership by the public in general, in that not even the State or ▪ If constructed by private persons within private lands and
subdivisions thereof may make them the object of commerce as devoted exclusively for private use – PRIVATE.
long as they remain properties for public use.
• EX: river, town plaza RIVERS
▪ Must be navigable to be of public dominion.
Three Kinds of Property of Public Dominion:
1. For PUBLIC USE RIVER BANKS
• May be used by anybody. ▪ Of public ownership.
2. For PUBLIC SERVICE ▪ Private river banks – those already existing prior to the Law of
• May be used only by duly authorized persons. Waters ((Aug. 3, 1866).
3. For the DEVELOPMENT OF NATIONAL WEALTH
• Natural resources. Characteristics of Properties of Public Dominion:
1. They are outside the commerce of man.
“AND OTHERS OF SIMILAR CHARACTER” • They cannot be leased, donated, sold, or be the object
1. Public streams of any contract, EXCEPT insofar as they may be the
2. Natural beds of rivers object of repairs or improvements and other incidental
3. River channels things of similar character.
4. Waters of rivers 2. They canbnot be acquired by prescription.
5. Creeks • Even a city/municipality cannot acquire them by
• It is no other than an arm extending from a river. prescription as against the State.
6. All lands thrown up by the sea and formed by accretion upon the • Includes properties NOT patrimonial in character.
shore by the action of the water, together with the adjacent shore 3. They cannot be registered under the Land Registration Law and
7. Lands reclaimed from the sea by the government be the subject of a Torrens title.
• Only the execitve and possibly the legislative • The Torrens system of registration is not a means of
department have the right and the power to make the acquiring ownership over private or public land; it
declaration that the lands so gained by action of the merely confirms and registers whatever right or title
sea is not necessary for purposes of public utility or may already be possessed or had by the applicant.
for the establishment of special industries or for coast o REMEDY if title is issued: Ask for
guard services. REVERSION.
8. Coastal area o Doctrine of indefeasibility does not apply.
• In as much as it belongs to the State and is used as a 4. They, as well as their usufruct, cannot be levied upon by
waterway execution, nor can they be attached.
9. Private lands which have been invaded by the waters or waves 5. In general, they can be used by everybody.
of the sea and converted into portions of the shore or beach 6. They may be either real or personal property.
• NATURAL EXPROPRIATION – the private owner
loses his property in favor of the State without any RA 2056
compensation. ▪ Constructions made in good faith on navigable rivers could not
o It is a de facto case of eminent doman be ordered removed (Sec. 2).
10. Streets • Note: There is no navigable river or stream in coastal
• Even when planted by persons with coconut trees. waters, neither may there be inundations therein
(Villongco v. Moreno (1962)).
SHORE
▪ That space alternatively covered and unconvered by the PORTS
movement of the tide (Art. 1, Sec. 3, The Law of Waters). ▪ Include seaports and airports (MIAA v. CA (2006)).
▪ If lots in litigation are of public domain, the registration court
does not have the jurisdiction to adjudicate the lands as private PUBLIC LANDS
property. Res judicata does not apply. ▪ The national domain under the legislative power of Congress as
has not been subjected to private right or devoted to public use.
FORESHORE LANDS ▪ That part of givernment lands which are thrown open to prive
▪ Land that lies between the high and low water marks and is appropriation and settlement by homestead and other like
alternatively wet and dry according to the flow of the tide. general laws.
▪ The riparian or littoral owner has preferential right to lease the ▪ Includes mining, forest, and agricultural lands.
foreshore area. • Agricultural – may be sold/acquired by private
• It compensates the riparian owner for the diminutions individuals/entities.
which his land suffers by reason of the destructive • Mining/Forest – may be leased, but ownership may
force of the waters. not be transferred.

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Civil Law Review: Property – Paras Notes 7

Classification of Public Lands:

1. AGRICULTURAL LANDS The ECCLESIASTICAL PROVINCES
• Those alienable portions of the public domain which ▪ The naked ownership of such donated to the Church belongs to
are neither timber nor mineral lands. the ROMAN CATHOLIC CHURCH.
2. FOREST LANDS ▪ The use is for worshippers.
• Inalienable
▪ MINERAL LANDS Effect of Separation of Church and State:
• Inalienable ▪ There is nothing that will prohibit the churches from alienating
• Exploration permints are strictly granted to entities or any of the properties denominated in canon law as holy or
individuals possessing the resources and capability to sacred.
undertake mining operations.
• Also, the State may not be precluded from considering PUBLIC LAND ACT
a direct takeover of the mines. ▪ The applicant must prove that:
1. The land is alieanable public land; and
BUREAU OF FORESTRY 2. His open, continuous, exclusive, and notorious
▪ Has the jurisdiction and authority over the demarcation, possession and occupation of the same must be since
protection, management, reproduction, and over the granting of time immemorial or for the period presecribed in the
licenses for the taking of products therefrom, including stone Public Land Act.
and earth (Sec. 1816, Revised Administrative Code). ▪ When the conditions set by law are complied with, the possessor
of the lands, by operation of law, acquires a right to a grant, a
Governing Law: CA 141 government grant, without the necessity of a certificate of title
▪ Disposition of public lands is lodged exclusively in the being issued.
DIRECTOR OF LANDS, subject only to the control of the Sec. ▪ ADVERSE POSSESSION
of Agriculture. • May be the basis of a grant of title or confirmation of
▪ There is a preference of tenants. an imperfect title.
▪ The Presidnet may reserve alienable public lands for a specific • Refers only to alienable or disposable portions of the
public purpose or service (Sec. 64(e), RAC), and to release those public domain.
reserved (CA 141).
ART. XII, CONSTITUTION
▪ Non-Filipinos are prohibited from acquiring or holding title to
Government Lands Public Lands private lands or to lands of the public domain (Sec. 7-8).
Broader in scope.
ART. 421. All other property of the State, which is not of the
Include all those lands devoted Merely part of government characted stated in the preceding article, is patrimonial property.
to public use or public service, lands.
as well as public lands “before PATRIMONIAL PROPERTY OF THE STATE
and after they are made ▪ Property owned by the State not devoted to public use, public
available for private service, or the development of national welath.
appropriation”, and also ▪ Wealth owned by the State in its private capacity.
patrimonial lands.
Examples of Patrimonial Properties:
▪ Municipal patrimonial lot
Non-Conversion into Private Property ▪ FRIAR LANDS
▪ If a portion of the public land either is needed for a river bank • In the sale thereof, the equitable and beneficial title to
protection or forms part of a permanent timberland, possession the land passes to the purchaser the moment the first
thereof, however long cannot convert it into private property. installment is paid and a certificate of sale is issued
(RA 1120, Friar Lands Act).
Disposition by PUBLIC BIDDING • In order that a transfer of the rights of a holder of a
▪ Public lands shall be sold to the highest bidder. certificate of sale of friar lands may be legally
▪ Not profit-making. effective, it is necessary that a formal certificate of
• Merely getting money in exchange for its property. transfer be drawn up and submitted to the Chief of the
Bureau of Public Lands for his approval and
Ownership of ROMAN CATHOLIC CHURCHES registration.
▪ Those constructed AFTER the Spanish occupation are owned by ▪ San Lazaro Estate (RA 2360)
the CATHOLIC CHURCH itself. ▪ Properties obtained by the government in escheat proceedins or
▪ Those constructed DURING the Spanish regime and built with those inherited by or donated to the government
forced labor were considered outside the commerce of man. ▪ Municipal-owned waterworks system
• They were sacred, devoted to the worship of God.
• There was then a union of Church and State. Acquisition by PRESCRIPTION
• These churches did not belong to the public nor to the ▪ Allowed (Art. 1113).
State, nor to any private individual, nor to the priests,
nor to the Church itslef. ART. 422. Property of public dominion, when no longer intended
• The Church had possession and control of the for public use or for public service, shall form part of the
churches. patrimonial property of the State.
o It was not necessary or important to give any
name to this right of possession and control CONVERSION OF PROPERTY OF PUBLIC DOMINION TO
prior to 1898. PATRIMONIAL PROPERTY – Entities that may Effect the Change:

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Civil Law Review: Property – Paras Notes 8

▪ Until there is made a formal declaration on the part of the ▪ LAW OF MUNICIPAL CORPORATIONS: As long as the
Government, thru the executive or legislative department, the purpose is for a public service, the property should be
land continues to be part of the public domain and cannot be considered for PUBLIC USE.
subject to acquisitive prescription.
Basis of Classification:
ABANDONED RIVER BEDS ▪ USE
▪ CW: Art. 461. ▪ BUT the National Government still controls the disposition of
properties of political subdivisions (regarless of the use to which
ART. 423. The property of provinces, cities, and municipalities is they are devoted) provided that the properties came from the
divided into property for public use and patrimonial property. State.
• in the absence of proof the the province/city/
RECLAIMED LANDS municipality acquired the properties with their own
▪ Does not fall under the category of natural resources which funds, there is a PRESUMPTION that they really had
under the Constitution are inalienable. come from the State.
▪ It is statutory law which determines the status of such (Chevez v.
PEA (2003)). Classification:
1. Those acquired with their own funds (in their private or
SUBMERGED LANDS corporate capacity)
▪ Owned by the State. • PS has ownership and control.
▪ Inalienable. 2. Those which do not fall under the 1st category
▪ Part of the State’s inalienable natural resources. • State has control and supervision.
• Held by the PS in trust for the State for the benefit of
Properties of Political Subdivisions: the inhabitants (whether for governmental or
1. Property for public use proprietary purpose).
• Inalienable. o RESIDUAL CONTROL remained in the
• Cannot be acquired by prescription. State.
2. Patrimonial property o Reason: PS owes its creation to the State.
• Alienable. o It is the State’s agents, or subdivision, or
• May be acquired by others thru prescription. instrumentality for the purposes of local
administration.
Donation by the National Government to a Political Subdivision:
▪ Property that may be donated: PATRIMONIAL property. Rules with respect to Properties for Public Use:
• Rationale: A municipality is a juridical person capable ▪ May not be leased to private individuals.
of acquiring properties. ▪ Cannot be attached or levied upon.
▪ When donated, property becomes either property for public use ▪ The right to settle boundary dispues between municipalities is
or patrimonial property, depending on the use given to the vested by law on the PROVINCIAL BOARD of the province
property. concerned.
▪ This is subject to the rules and regulations issued by the proper • Decision of the board may be appealed to the Office of
governmental authorities, as well as the subsequent approval of the President whose decision shall be final.
the such acquisition by the Director of Lands. • If the board fails to settle the dispute, the action would
be against the board.
NATIONAL GOVERNMENT v. GOVERNMENT OF THE
PHILIPPINES ▪ National properties may NOT be registered by a municipality
▪ National Government: under its own name.
• More restrictive ▪ Patrimonial property of a municipal corporation is administered
• Does NOT include local governments and other in the same way as property of a private corporation.
governmental entities • Not immune to suits.
• The Central Government, i.e. the legislative,
executive, and judicial departments ART. 425. Property of private ownership, besides the patrimonial
property of the State, provinces, cities, and municipalities,
consists of all property belonging to private persons, either
CONVERSION to patrimonial: indivudually or collectively.
▪ Apply Art. 422 by analogy.
RIGHT TO PRIVATE PROPERTY
ART. 424. Property for public use, in the provinces, cities, and ▪ May be individual or collective.
municipalities consist of the provincial roads,city streets,
municipal streets, the squares, fountains, public waters, COLLECTIVE OWNERSHIP
promenades, and public works for public service paid for by said ▪ Ownership by private individuals as co-owners, or by
provinces, cities, or municipalities. corporations, partnerships, or other juridical persons (e.g.
foundations) who are allowed by the Civil Code to possess and
All other property possessed by any of them is patrimonial and acquire properties (Art. 44-47).
shall be governed by this Code, without prejudice to the
provisions of special laws. Possession by Private Persons
▪ Possession since time immemorial carries the presumption that
Properties in Political Subdivisions the land had never been part of the public domain, or that it had
▪ CIVIL CODE: Properties in political subdivisions for public been private property even before the Spanish conquest.
service are PATRIMONIAL. ▪ This allegation is sufficient averment of private ownership.

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Civil Law Review: Property – Paras Notes 9

Ownership of ROADS Whenever the word “muebles”, or “furniture” is used alone, it

▪ May be public or private. shall not be deemed to include money, credits, commercial
securities, stocks and bonds, jewelry, scientific or artistic
Private Lands within a Military Zone collections, books, medals, arms, clothing, horses or carriages and
▪ Such do not necessarily become property of public dominion. their accessories, grains, liquids and merchandise, or other things
▪ If there be fortified places, Art. 667 applies. which do not have as their principal object the furnishing or
ornamenting of a building, except where from the context of the
Improvements introduced by the Japanese Occupation Forces on law, or the individual declaration, the contrary clearly appears.
Private Lands
▪ Belong to the PH government.

TORRENS TITLE
▪ Generally a conclusive evidence of ownership.
• EXCEPT: if it is shown that the same land had already
been registered and an earlier certificate for the same
is in existence (MWSS v. CA (1992)).
▪ If there is any error in the title in the sense that it includes lands
belonging to the government, it is only the government which
can properly question that fact and a judicial pronouncement is
necessary in order to have the portion excluded from the Torrens
title.

Acquisition by Aliens
▪ Prohibition is ABSOLUTE.

What should an applicant establish to prove that the land subject of

an application for registration is alienable?
1. Establish the existence of a positive act of the government.
a. Presidential proclamation
b. Executive order
c. Administrative action
d. Investigation reports of the Bureau of Lands
investigators
e. Legislative act/statute
2. Secure a certification from the government that the lands applied
for are alienable and disposable.
3. If for confirmation of imperfect title, Prove that:
a. Lands form part of the alienable and disposable
agricultural lands of the public domain; and
b. They have been in open, continuous, exclusive, and
notorious possession and occupation of the same under
a bona fide claim of ownership either since time
immemorial or since June 12, 1945.

ZONAL VALUATION
▪ Done by the CIR upon consultation with competent appraisers
both from public and private sectors.
▪ Objective: To have an efficient tax administration by minimizig
the use of discretion in the determination of the tax base on the
part of the administrator on one hand and the taxpayer upon the
other hand.
▪ Determined for the purpose of establishing a multi-realisitic
basis for real property valuation.
▪ Actual use is not considered. Predominant use of other
classification of properties located in the zone is.
▪ OFFICIAL ZONING MAP
• Indispensable and integral part of a zoning ordinance.

PROVISIONS COMMON TO THE THREE PRECEDING

CHAPTERS

ART. 426. Whenever by provision of law, or an individual

declaration, the expression “immovable things or property”, or
“movable things or property” is used, it shall be deemed to
include, respectively, the things enumerated in Chapter 1 and
Chapter 2.

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Civil Law Review: Property – Paras Notes 10

TITLE II. – OWNERSHIP o Each co-onwer is the owner of the whole

and, at the same time, the owner of an
Chapter 1 – OWNERSHIP IN GENERAL undivided aliquot part thereof.

ART. 427. Ownership may be exercised over things or rights. Questions of Ownership:
▪ Should be ventilated in an ordinary civil action or proceeding.
OWNERSHIP • EXCEPTION: When both parties concerned are given
▪ The independent and general right of a person to control a thing the full opportunity to present their sides.
particularly in his possession, enjoyment, disposition, and
recovery, subject to no restrictions except those imposed by the POSSESSORY INFORMATION (informacion possessoria)
state or private persons, without prejudice to the provisions of ▪ If duly recorded in the Registry of Property, is prima facie
law. evidence that the registered possessor is also the owner of the
▪ Generally, payment of the purchase price is not essential to land involved.
effectuate the transfer of ownership.
▪ Also, leasehold relation is not extinguished by the alienation or ART. 428. The owner has the right to enjoy and dispose of a
transfer of legal possession of the landholding (PNB v. CA thing, without other limitations than those established by law.
(1997)).
The owner has also a right of action against the holder and
Marcos’ Alleged Ill-Gotten Wealth – Facts that Need to be possessor of the thing in order to recover it.
Established for Forfeiture/Seizure:
1. Ownership by the public officer of money or property acquired RIGHTS OF AN OWNER UNDER THE CIVIL CODE:
during his inclumbency, whether it be in his name or otherwise; ▪ Right to enjoy
and • Right to possess (jus possidendi)
2. The extent to which the amount of that money or property o The right to hold a thing or to enjoy a right.
exceeds, i.e. grossly disproportionate to, the legitimate income o The thing or right is subject to the control of
of the public officer. my will.
o CW: Art. 1495-1497.
Kinds of Ownership: • Right to use (jus utendi)
o Includes the right to exclude any person, as a
1. FULL OWNERSHIP (dominium or jus in re propia) rule, from the enjoyment and disposal
thereof.
• Includes all the rights of an owner. o CW: Art. 429, 431.
• Right to the fruits (jus fruendi)
o Includes the right to 3 kinds of fruits –
2. NAKED OWNERSHIP (nuda proprietas) natural, industrial and civil fruits.
o CW: Art. 441.
• Ownership where the right to the use and the fruits has ▪ Right to dispose (jus disponendi)
been denied. • Right to consume or destroy or abuse (jus abutendi)
o CW: Art. 750.
o NAKED OWNERSHIP + USUFRUCT = • Right to encumber or alienate
FULL OWNERSHIP o Includes the right to donate, sell, pledge, or
mortgage.
o USUFRUCT = FULL OWNERSHIP – o CW: Art. 1459, 2085.
NAKED OWNERSHIP ▪ Right to recover or vindicate (jus vindicandi)
o CW: Art. 428, 539(1), 433.
o NAKED OWNERSHIP = FULL o This is transmissible to the heirs or assignees
OWNERSHIP – USUFRUCT of the person entitled to it.

ACTIONS TO RECOVER:
− N O T E : U S U F R U C T U A RY a. Right to Recover Personal Property:
RIGHT (jus in re aliena) • Replevin (Rule 60, Rules of Court)
b. Right to Recover Real Property:
o Possession of a right • Forcible entry or unlawful detainer (accion interdictal)
over a thing owned by • Accion publiciana
another. o The plenary action to recover the better right
of possession
3. SOLE OWNERSHIP • Reivindicatory action (accion reivindicatoria)
c. Additional Remedies:
• Where the ownership is vested in only one person • Writ of preliminary injunction
• Writ of possession
4. CO-OWNERSHIP (Tenancy in Common)
“MOVE IN THE PREMISES” Resolution
▪ Not a license to occupy or enter the premises subject of litigation
• When the ownership is vested in two or more owners. esp. in cases involving real property.
• The unity of th property and the plurality of the
▪ It simply means that the parties are obliged to inform the Court
subjects. of the developments pertinent to the case which may be of help

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Civil Law Review: Property – Paras Notes 11

to the Court in its immediate disposition. (Oliveras v. Lopez • Ownership immaterial unless basis for right of
(1988)). possession.
▪ Purpose: Regardless of the actual condition of the title to
REPLEVIN property, the party, in peaceable and quiet possession shall not
▪ An action or provisional remedy where the complainant prays be turned out by strong hand, violence, or terror.
for the recovery of the possession of personal property (Sec. 1, ▪ One in possession of public land may file an action for forcible
Rule 60, RoC). entry.
▪ At the commencement of the action, or at any time before the ▪ The judgment shall be conclusive with respect to the possession
other party answers, the applicant may apply for an order of the only, and shall in no wise bind the title or affect ownership of the
delivery of such property to him (Sec. 1, Rule 60, RoC). land or building.
▪ When he applies for the order, he must show by his own
AFFIDAVIT or that of some other person who personally knows UNLAWFUL DETAINER (Desahucio)
of the facts – ▪ Action that must be brought when possession by a landlord,
• That the applicant is the owner of the property vendor, vendee, or other person of any land or building os being
claimed, particularlu describing it, or is entitled to the unlawfully withheld after the expiration or termination of the
possession thereof; right to hold possession, by virtue of any contract, express or
• That the property is wrongfully detained by the implied.
adverse party, alleging the cause of detention thereof ▪ Prior physical possession is NOT required.
according to his best knowledge, information and ▪ Complaint must show that the witholding of possession, or the
belief; refusal to vacate, is unlawful.
• That it has not been distranied or taken for a tax ▪ Sole issue: Physical or material possession (possession de facto).
assessment or fine pursuant to law or seized under a • The subsequent acquisition of ownership by any
writ of execution or preliminary attachment or person is not a supervening event that will bar the
otherwise placed under custodia legis or if so seized, execution of the judgment in the UD case.
that it is exempt from such seizure or custody; and ▪ Prescriptive period: 1 YEAR from the unlawful deprivation or
• The actual market value of the property (Sec. 2, Rule withholding of possession.
60, RoC). • Upon demand / expiration of contract.
▪ The applicant must give a BOND (double the value of the ▪ SQUATTER: one who settles on the land of another without any
property as stated in the affidavit) (Sec. 2). lawful authority; applied to a person who settles on public (or
▪ The court orders the sheriff to take such property into his private) land (Buenavente v. Melchor (1979)).
custody (Sec. 3). • Squatting in an urban community – penalized under
▪ If the property or any part thereof be concealed in a buiding or PD 722.
enclosure, and not delivered upon demand, the sheriff must • Squatting on public agricultural lands – penalized
cause the building or enclosure to be broken open. He then takes under RA 947.
the property (Sec. 4). • BUT NOW DECRIMINALIZED.
▪ If the defendant wishes to have the property taken by the sheriff • A mere act of trespass will not authorize the
restored to him, he should, within 5 days from such taking: suspension of payment of the price (Art. 1590, NCC).
• Post a counterbond in double the value of the property. ▪ Applicable to all kinds of land – agricultural, residential, or
• Serve plaintiff with a copy thereof. mineral.
▪ A stranger may file a third-party claim.
• BUT prior determination of whether one is a proper
party defendant or stranger to the action is necessary Forcible Entry Unlawful Detainer
(Sec. 7). Possession
▪ WRIT CANNOT BE DIRECTED AGAINST A LAWFUL Possession was unlawful from Possession was lawful in the
POSSESSOR. the very beginning beginning but became unlawful
▪ This will not lie for property in custodia legis. afterwards
▪ A replevin action is sufficiently flexible to authorize a settlement
of all equities between the parties, arising from or growing out Issue
of the main controversy.
▪ Writ may be served anywhere in the PH. Ownership is not involved

The chattel mortgagee has the right to obtain immediate Right to material possession
▪
possession of the mortgaged chattel upon breach of contract by Type of Proceeding
the chattel mortgagors.
• If possession is not transferred or delivered, replevin In personam involving real property
may be availed of (Northern Motors v. Herrera). (QUASI IN REM)

FORCIBLE ENTRY (Detentacion) Prior Possession

▪ A summary action to recover material or physical possession of
real property when a person originally in possession was Essential Not essential
deprived thereof by force, intimidation, strategy, thereat, or
stealth (FISTS). Right to Damages
▪ Prescriptive period: 1 YEAR from dispossession / discovery of Entitled
strategy/stealth.
• Reason: Public interest is involved.
▪ Issue involved: Mere physical possession (possession de facto). ▪ After the lapse of 1 year, the remedy is accion publiciana.

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Civil Law Review: Property – Paras Notes 12

▪ Venue may be agreed upon. PRELIMINARY MANDATORY INJUNCTION may be availed

▪ A judgment of dispossession against a third party in favor of a of in the original case of FE and during the appeal in case of
lessee, will bar a suit against the lessor by the person UD.
dispossessed. • CW: Art. 539(2); Art. 1674.
▪ If the judgment in an ejectment case is already final, writ of • If owner, still in possession, desires to prevent
execution and a writ of demolition may already by issued. repeated or further intrusions into his property by a
• Execution – ministerial duty of the court. stranger who, for ex., persists in entering and cutting
• Execution shall issue IMMEDIATELY unless an off wood or other products of the land.
appeal has been perfected and the defendant files a • If a person in possession of the real property in
supersedeas bond (for back rentals). concepto de dueno for over a year (possessor de jure),
▪ Mortgagee has no right to intervene. although not the owner, is disturbed by acts similar to
▪ A lessor in an action for unlawful detainer may sue for both the aforementioned.
ejectment and rescission of the lease contract.
WRIT OF POSSESSION
ACCION PUBLICIANA (plenaria de posesion) ▪ An order directing the sheriff to place a successful registrant
▪ A plenary action intended for the recovery of the better right to under the Torrens system in possession of the property covered
possess in an ordinary civil proceeding before an RTC. by a decree of the Court.
▪ Prescriptive period: 10 YEARS. ▪ It is NOT essential for the successful litigant to institute another
▪ Issue: possession de jure. action for the precise purpose of obtaining possession of the
▪ Kinds: land, opthrwise there would be multiplicity of suits.
• That where the entry was obtained thru FISTS. ▪ CANNOT be used either against the party in whose favor the
o Can be brought as soon as the dispossession land has been decreed to be registered, or against his
takes place, without waiting for the lapse of representatives or successors-in-interest.
one year. ▪ May be issued only against the person defeated in the
• That where the one-year period for bringing forcible registration case, and against anyone unlawfully and adversely
entry or unlawful detainer has already expired. occupying the land or any portion thereof, during the
▪ If FE/UD has already been decided upon, such decision is res proceedings, up to the issuance of the final decree.
judicata. • REASON: the issuance of the decree is part (END) of
the registration proceedings.
ACCION PAULIANA ▪ It is the duty of the court to issue said writ when asked for by the
▪ Action to rescind contracts in fraud of creditors. successful claimant.
▪ It is necessary that the credit of the plaintiff exist prior to the ▪ If the writ of possession implies the delivery of possession of the
fraudulent alienation, the date of judgment enforcing it is land to the successful litigant therein, a writ of DEMOLITION
immaterial – even if the judgment be subsequent to the must likewise issue, otherwise, the writ of possession may be
alienation – it is merely declaratory with retroactive effect to the ineffective.
date when the credit was constituted. ▪ The right to demand the writ of possession never prescribes.
▪ If the writ of possession has been issued once, it will not be
ACCION REIVINDICATORIA issued again.
▪ Reivindicatory action. ▪ The issuance of the writ is summary in nature, hence, the same
▪ Action to recover ownership over real property. cannot be considered as judgment on the merits (one rendered
▪ RTC where real estate is situated has jurisdiction. after a determination of which part is right).
▪ Prescriptive period:
• 4 years (from discovery of fraud) RIGHT OF OWNERSHIP – NOT ABSOLUTE
• 10 years (if ordinary prescription / implied trust) ▪ There are limitations for the benefit of humanity and based on
• 30 years (if extraordinary prescription) the ff:
▪ Issue: OWNERSHIP. • The welfare of the people is the supreme law of the
▪ Judgment binding only upon the parties and privies thereto. land.
▪ Denial of petition for registration under Torrens system is NOT o Salus populi est suprema lex.
res judicata. • Use your property so as not to impair the rights of
▪ Judgment for ownership usually carries with it the right to others.
possession. o Sic utere tuo ut alienum non laedas.
• Nonetheless, the actual possessor therein had some o The owner of a thing cannot make use
rights which had to be respccted and defined. thereof in such a manner as to injure the
rights of a third person.
RECONSTITUTION OF TITLE/DOCUMENT
▪ Purpose: To have the same reproduced, after proper proceedings LIMITATIONS ON OWNERSHIP:
in the same form they were when the loss or destruction 1. Those given by the State or the Law;
occurred. • STATE: police power, taxation, eminent domain
• LAW: legal easement of waters, legal easement of
WRIT OF INJUNCTION right of way
▪ A person deprived of his possession of real or personal property 2. Those given by the owner (or grantee) himself;
is ordinarily not allowed to avail himslef of the remedy of a. OWNER: lease, pledge
preliminary preventive or prohibitory injunction. 3. Those given by the person (grantor) who gave the thing to its
• REASON: Defendant in actual possession is presumed present owner.
disputably to have the better right. • GRANTOR: prohibition on partition by donee
▪ However, under certain conditions, and in view of the frequent
delays in cases of this nature, the remedy of the WRIT OF

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Civil Law Review: Property – Paras Notes 13

▪ While an owner has certain rights over his property, subject to

TAXATION EMINENT POLICE
the limitations, he suffers also from certain disadvantages or
DOMAIN POWER
consequences of said ownership.
Compensatio Generally, a Financial or • EX: RES PERIT DOMINO.
n better monetary o The owner bears the loss of the property
government compensation owned by him.
(with
consequent ART. 429. The owner or lawful possessor of a thing has the right
protection to to exclude any person from the enjoyment and disposal thereof.
life, liberty, For this purpose, he may use such force as may be reasonably
and property) necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property.
Compensated Citizen’s
by obvious compensation DOCTRINE OF SELF-HELP
and apparent is more or less ▪ The right to counter, in certain cases, force with force.
benefits intangible, an • Must be against an AGGRESSOR.
idealistic • Force may be used even without such threatened
realization that bodily danger – provided that defense, and not
society has in vengeance, is involved.
some way • CW: Art. 11(1), RPC
benefited
ART. 430. Every owner may enclose or fence his land or
Persons Operates on a Operates on an tenements by means of walls, ditches, live or dead hedges, or by
Involved class, individual (the any other means without detriment to servitudes constituted
according to owner of the thereon.
some principle property)
of FENCING OF LAND OR TENEMENTS
apportionment ▪ Limitation: It must not impair the servitudes or burdens
constituted thereon.
Nature of the Paid by citizen Allowed by
Duty as his the citizen, but ART. 431. The owner of a thing cannot make use thereof in such
contribution to NOT asa manner as to injure the rights of a third person.
a public contribution to
burden a public NO INJURY TO RIGHT OF THIRD PERSONS
burden ▪ One of the fundamental bases of police power.
▪ A just restriction on the right of ownership.
Manner of Generally, no A property • EX: Nuisances may be abated judicially or
Exercise complaint is owner is made extrajudicially, and one responsible for the existence
filed in court. a defendant in or continuation of a nuisance can be held liable by
It is the public the complaint those who may suffer injury thereby.
that, in (expropriation
general, is is a forced ART. 432. The owner of a thing has no right to prohibit the
required to sale) interference of another with the same, if the interference is
pay necessary to avert an imminent danger and the threatened
damage, compared to the damage arising to the owner from the
Purpose To raise To promote
interference, is much greater. The owner may demand from the
revenue the public
person benefited indemnity for the damage to him.
welfare by
system of
STATE OF NECESSITY
regulation
▪ CW: Art. 11(4), RPC.
Amount Paid May be small Just Fee paid is
or big (courts compensation just enough to ART. 433. Actual possession under claim of ownership raises a
cannot decree cover disputable presumption of ownership. The true owner must
the amount necessary resort to judicial process for the recovery of the property.
paid as expenses for
unreasonable) regulation or DISPUTABLE PRESUMPTION OF OWNERSHIP
inspection ▪ Requisites:
• Actual possession
• Claim of ownership
TAX DECLARATIONS ▪ Applies to both immovable and movable property.
▪ NOT conclusive evidence of ownership. ▪ CW: Art. 541.
▪ When coupled with proof of actual possession, strong evidence ▪ The true owner has to resort to judicial process to recover his
of ownership. property, only if the possessor does not want to surrender the
property to him, after proper request or demand has been made.
BURDENS OF OWNERSHIP • Reason: To prevent disturbances of the peace.

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Civil Law Review: Property – Paras Notes 14

ART. 434. In an action to recover, the property must be • Payment of just compensation
identified, and the plaintiff must rely on the strength of his title
and not on the weakness of the defendant’s claim. EXPROPRIATION
▪ Procedure thru which the right of eminent domain is exercised.
ACTION TO RECOVER ▪ Courts have the power to inquire into the legality of the
▪ Requisites: proceedings and to verify the existence of the legal requisites for
• Property must be identified. the exercise of the right of eminent domain.
o Boundaries of the land sought must be
proved. “COMPETENT AUTHORITY”
o Parties are required to present plans ▪ State (authority as of right)
prepared by some competent person. ▪ Persons / corporations offering public services (authority by
o The description should be so definite that an virtue of a grant)
officer of the court might go to the locality
where the land is situated and definitely
locate it. Authority Thru
• Reliance on title of the plaintiff (not on the weakness National Government President of PH
of the defendant’s title or claim).
o It is possible that neither the plaintiff nor the City Sanggunian + Mayor’s approval
defendant is the true owner of the property
in question. Provinces Sanggunian + Exe. Sec.’s
o Evidence for presentation: approval
− Torrens certificate
− Spanish title Municipalities Municipal Councils + Exe.
− Long and actual possession (RIGHT NOT INHERENT) Sec.’s approval
− Occupation for a long time
− Te s t i m o n y o f a d v e r s e a n d Other public corporations BOD, provided ther is prior
exclusive possession of ownership government approval
− Tax declaration
Manila Railroad Company (Art.
o NOT CONCLUSIVE. 1510, Sec. 1(26), Act. 2373O.
▪ Basis: Burden of proof lies on the party who substantially asserts
the affirmative of an issue.
• He who relies upon the existence of a fact should be “DUE PROCESS OF LAW”
called upon to prove that fact. ▪ Rule 67, Rules of Court.
▪ There must be proper expropriation proceedings which must
ART. 435. No person shall be deprived of his property except by include:
competent authority and for public use and always upon payment • A notice to the owner of the property;
of just compensation. • A full opportunity to present his side on whether or not
the purpose of the taking is public; or whether or not
Should this requirement be not first complied with, the courts the government reasonably needs the property; and
shall protect and, in a propercase, restore the owner in his • Such other procedural requisites as may be prescribed.
possession. o An entity can be held liable for damages for
unlawful trespass if the proper procedure has
EMINENT DOMAIN not been first resorted to.
▪ The superior right of the State to own certain properties under o EXCEPTION: Estoppel – If he allowed the
certain conditions. entity to make use of the land, and incur
▪ A limitation on the right of ownership. expenses thereon without making any
▪ May be exercised even over private properties of cities and objection to the unauthorized taking.
municipalities, and even over lands registered with a Torrens ▪ CONFISCATION abolished.
title. • Reason: This’ll promote public disorder.
▪ Right of the State to acquire private property for public use upon ▪ It is permissible to abandon expropriation proceedings.
payment of just compensation. • Landowner must still be indemnified for all losses/
▪ Inherently possessed by the national legislature. prejudice.
• May be validly delegated to LGUs, other public
entities, and public utilities. “PUBLIC USE”
▪ Based on the need for human progress and community welfare ▪ Courths have jurisdiction to decide whether the taking is indeed
or development. for a public use.
▪ Inseparable from sovereignty, being essential to the existence of • QUESTION OF FACT
the State and inherent in government even in its most primitive ▪ DOCTRINE OF REASONABLE NECESSITY
forms. • Absolute necessity is not required.
• No law is necessary to confer this right upon ▪ Includes the broader notion of indirect public benefit or
sovereignty, or upon any government exercising advantage, including in particular, urban land reform and
sovereign or quasi-sovereign powers. housing.
▪ Must not be exercised capriciousl or arbitrarily. ▪ If the property expropriated is no longer needed for the public
▪ Essential Requisites: use it was originally intended:
• Taking by competent authority • If the judgment gave full ownership to the plaintiff, he
• Observance of due process of law remains the owner even after the need has
• Taking for public use disappeared.

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Civil Law Review: Property – Paras Notes 15

• If the grant was conditional, ownership would revert to ▪ Observance of due process required.
the original owner, said condition is valid.
ART. 437. The owner of a parcel of land is the owner of its
“JUST COMPENSATION” surface and of everything under it, and he can construct thereon
▪ A fair and full equivalent value of the loss sustained. any works or make any plantations and excavations which he
▪ The market value (the price that the property will bring when it may deem proper, without detriment to servitudes and subject to
is offered for sale by one who desires, but is not obliged to sell special laws and ordinances. He cannot complain of the
it, and is bought by one who is under no necessity of having it) reasonable requirements of aerial navigation.
PLUS the consequential damages, if any, MINUS the
consequential benefits, if any. SURFACE RIGHT OF A LAND OWNER
• JC = MV + (CD – CB) ▪ The extent of wonership which a person has over a parcel of
▪ Trial before the Commissioners is indispensable to allow the land.
parties to present evidence on the issue of just compensation.
▪ Determined by the nature of the land at the time of taking. Other Limitations/Restrictions:
▪ Value at taking or value at filing of the complaint, whichever ▪ Principles on human relations
comes first. ▪ Prevention of injury to the rights of third persons (Art. 431)
▪ Basic evidence of true MV: that which is declared by the ▪ Reasonable requirements of underground shelters and depots
Provincial/City Assessor or that declared by the taxpayer with proper state permission
himself, whichever is lower.
▪ Ownership is transferred only when payment of JC with proper Regalian Doctrine
interest has been made. ▪ “All lands belong to the State.”
• It retains its basic rights over the same as dominus.
EXTRAORDINARY EXPROPRIATION ▪ State ownership of mines and natural resources (even if found
▪ Expropriation for private use (Art. III, Sec. 9, CONSTI). on private land).
• AGRARIAN REFORM
▪ Purpose: Championing the cause of social justice to the end that ART. 438. Hidden treasure belongs to the owner of the land,
public welfare will be enhanced. building, or other property on which it is found.
▪ NOTE: CARL and CARPER.
▪ NOTE: Urban Land Reform Act (PD 1517). Nevertheless, when the discovery is made on the property of
another, or of the State or any of its subdivisions, and by chance,
Stages of Expropriation one-half thereof shall be allowed to the finder. If the finder is a
1. Determinatio of the authority of the plaintiff to exercise the trespasser, he shall not be entitled to any share of the treasure.
power of eminent domain and propriety of its exercise in the
context of facts involved in the suit. If the things found be of interest to science or the arts, the State
• It ends with an order, if not of dismissal of action, of may acquire them at their just price, which shall be divided in
condemnation declaring that the plaintiff has a lawful conformity with the rule stated.
right to take the property sought to be condemned, for
the public use or purpose described in the complaint, “BY CHANCE”
upon the payment of just compensation to be ▪ Navarro Amandi: There must be no purpose or intent to look for
determined as of the date of the filing of the the treasure.
complaint. ▪ Capistrano and Francisco: “BY GOOD LUCK”.
2. Determination by the court of the just compensation by the • One who intentionally looks for the treasure is
property sought to be taken. embraced in the provision.
• Done with the assistance of not more than 3 • Permission of property owner must be sought.
commissioners. USUFRUCTUARY
▪ Deemed stranger (Art. 566).
ART. 436. When any property is condemned or seized by
competent authority in the interest of health, safety or security, ART. 439. By treasure is understood, for legal purposes, any
the owner thereof shall not be entitled to compensation, unless he hidden and unknown deposit of money, jewelry, or other precious
can show that such condemnation or seizure is unjustified. objects, the lawful ownership of which does not appear.

SEIZURE AS AN EXERCISE OF POLICE POWER “OTHER PRECIOUS OBJECTS”

▪ Giving of financial return not required. ▪ Follow ejusdem generis.
▪ Those of the same class as money and jewelry.
ABATEMENT OF NUISANCES ▪ Must not be deliberately hidden.
▪ State may abate nuisances. • UNLESS abandoned.
• PUBLIC NUISANCE
o That which affects a community or a Death of lawful owner:
considerable number of persons (Art. 695). ▪ If the ownership of the treasure is known, but the owner is
• PRIVATE NUISANCE already dead – NOT HIDDEN TREASURE.
o That which is not public (Art. 695). • Must go to rightful heirs.
• NUISANCE PER SE ▪ If the only legal heir is the state – STATE’s patrimonial property.
o That which is a nuisance under all
circumsntances. Chapter 2 – RIGHTS OF ACCESSION
• NUISANCE PER ACCIDENS
o That which is a nuisance only under certain GENERAL PROVISIONS
circumstances.

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Civil Law Review: Property – Paras Notes 16

ART. 440. The ownership of property gives the right by accession • It presupposes a previously existing ownership by the
to everything which is produced thereby, or which is owner over the principal.
incorporated or attached thereto, either naturally or artificially. ▪ It is a right implicitly included in ownership.
▪ It is one of the attributes or characteristics which will make up
ACCESSION the concept of dominion or ownership.
▪ The right of a property owner to everything which is: ▪ Acquisition by accession = acquisition by LAW.
• Produced thereby (accession discreta); OR ▪ Right to accession is automatic (ipso jure).
• Which is incorporated or attached thereto, either • It requires no prior act on the part of the owner of the
naturally or artificially (accession continua or principal.
accession non-interrumpida), which is in turn divided
into: Reason Behind Accession:
o Natural accession (accession natural); ▪ Accession discreta: JUSTICE – One who owns a thing should
o Artificial accession (accession artificial or justly enjoy its fruits.
accession industrial). ▪ Accession continua: ECONOMIC CONVENIENCE is better
− Improvements made on the attained in a state of single ownership than in a co-ownership;
property are included within the NATURAL JUSTICE demands that the owner of the principal or
scope of “accession”. more important thing should also own the accessory.
▪ The right of an owner of a thing to the products of said thing as
well as to whatever is inseparably attached thereto as an Section 1 – RIGHT OF ACCESSION WITH RESPECT TO
accesosory. WHAT IS PRODUCED BY PROPERTY
▪ That by which property is given to a person in addition to what (ACCESSION DISCRETA)
said person already possesses, said additional property being the
result of a natural increase, like land, by deposit of a river; or ART. 441. To the owner belongs:
houses, when built on one’s own land; or the young of animals. (1) The natural fruits;
▪ The right which ownership of property gives over everything (2) The industrial fruits;
which the same produces, or which is attached or incorporated (3) The civil fruits.
thereto, naturally or artificially.
RIGHT TO THE FRUITS
Classification of Accession: ▪ Right to the ownership of fruits produced by our property.
▪ ACCESSION DISCRETA (To the Fruits)
• Natural fruits Instances when owner of land does not own the fruits:
• Industrial fruits ▪ Possessor in good faith of the land (Art. 544(1))
• Civil fruits ▪ Usufructuary (Art. 566)
▪ ACCESSION CONTINUA (Attachment or Incorporation) ▪ Lessee (Art. 1654)
• With reference to real property ▪ Antichretic creditor (Art. 2132)
o ACCESSION INDUSTRIAL
− Building ART. 442. Natural fruits are the spontaneous products of the soil,
− Planting and the young and other products of animals.
− Sowing
o ACCESSION NATURAL Industrial fruits are those produced by lands of any kind through
− Alluvium cultivation or labor.
− Avulsion
− Change of course of rivers Civil fruits are the rents of buildings, the price of leases of lands
− Formation of islands and other property and the amount of perpetual or life annuities
• With respect to personal property or other similar income.
o Adjunction / Conjunction
− Inclusion (engraftment) NATURAL FRUITS
− Soldadura (attachment) ▪ Human labor does not intervene.
− Tejido (weaving)
− Pintura (painting) INDUSTRIAL FRUITS
− Escritura (writing) ▪ Those produced by lands of any kind thru cultivation or labor.
o Mixture
− Confusion – liquids CROPS
− Commixtion – solid ▪ PERENNIAL CROPS – growing each season without need of
o Specification replanting, e.g. oranges and apples
• Natural fruits
DIFFERENT MODES OF ACQUIRING OWNERSHIP: (SOLID- ▪ ANNUAL CROPS – those which have to be planted each year,
TP) e.g. cereals and grains
1. Succession • Industrial fruits
2. Occupation
3. Law CIVIL FRUITS
4. Intellectual creation ▪ BONUS not included.
5. Donation ▪ Deemed to accrue daily.
6. Tradition, as a consequence of certain contracts
7. Prescription ART. 443. He who receives the fruits has the obligation to pay the
expenses made by a third person in their production, gathering,
▪ Accession is NOT a mode of acquiring ownership. and preservation.

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Civil Law Review: Property – Paras Notes 17

owner should gain, or at least

DUTY OF THE RECIPIENT OF FRUITS TO REIMBURSE recover his loss.
NECESSARY EXPENSES ▪ Considered existing even if still in the maternal womb.
▪ Reason: Were it not for tge necessary cultivation expenses, there • BUT doubt may arise whether they are already in the
would not be any fruits grown at all, or left, or preserved. womb or not SO…
• No one may enrich himself unjustly at another’s • They should be considered existing only at the
expense. commencement of the maximum ordinary period of
▪ Applies when the crops have already been gathered. gestation.
• As opposed to Art. 449 which applies when the crops
have not yet been gathered.
Natural/Industrial Fruits Civil Fruits
▪ Does not apply when planteer is in good faith.
• Planter is entitled to the fruits already received, hence, Accrue daily
there is no necessity of reimbursing him (Art. 554).
While still growing, real Personal property
Characteristics of Expenses in Art. 443: property
▪ They must have been used for production, gathering, or
preservation, not for the improvement of the property. Ordinarily cannot be prorated Can be prorated.
▪ They must have been necessary, and not luxurious or excessive.
• They must be commensurate with those ordinarily
necessitated by the product. Section 2 – RIGHT OF ACCESSION WITH RESPECT TO
IMMOVABLE PROPERTY
Even if the expenses exceed the value of the fruits, there must still be
a reimbursement for the expenses because: ART. 445. Whatever is built, planted, or sown on the land of
▪ The law makes no exception or distinction. another and the improvements or repairs made thereon, belong
▪ The same thing would have happened had the owner been also to the owner of the land, subject to the provisions of the following
the planter. articles.
▪ He who gets expected advantages must be prepared to shoulder
losses. ACCESSION INDUSTRIAL (Building, Planting, Sowing)
• NOTE: If the fruits had not yet been gathered, no ▪ Art. 445 applies only if the owner of the land is known.
indemnity is required. • If unknown, no decision on the ownership of the
things planted/built/sown can be made.
ART. 444. Only such as are manifest or born are considered as ▪ Sowing – each deposit of seed gives rise merely to a single crop
natural or industrial fruits. or harvest.

 ▪ Planting – more or less permanent trunks or trees are produced,
With respect to animals, it is sufficient that they are in the womb which in turn produce fruits themselves.
of the mother, although unborn. • Without a replanting, crops will continue to grow
every season.
CROPS
▪ PERENNIAL CROPS Basic Principles of Accession Continua (Accession Industrial):
• Those growing each season without need of ▪ To the owner of the principal must belong also the accessions.
replanting, e.g. oranges and apples • The accessory follows the principal.
• Natural fruits • “Accesio cedit principali.”
• Deemed to exist only when they actually appear on the ▪ The union or incorporation must, with certain exceptions, be
trees effected in such a manner that to separate the principal from the
▪ ANNUAL CROPS accessory would result in substantial injury to either.
• Those which have to be planted each year, e.g. cereals ▪ He who is in good faith may be held responsible but he should
and grains not be penalized.
• Industrial fruits ▪ He who is in bad faith may be penalized.
• Deemed manifest (existing) the moment their ▪ No one should enrich himself unjustly at the expense of another.
seedlings appear from the ground, although the grains ▪ Bad faith of one party neutralizes the bad faith of the other so
have not yet actually appeared. both should be considered in good faith.

OFFSPRING OF ANIMALS EXCEPTION:

▪ The owner of the female is also the owner of the young, unless ▪ The ownership of improvements, whether for utility or
there is a contrary custom or speculation. adornment, made on the separate property of the spouses at the
▪ Pratus sequitor ventrem. expense of the partnership or through the acts or efforts of either
• The offspring follows the dam (mother). or both spouses shall pertain to the conjugal partnership, or to
o REASON: the original owner-spouses, subject to the ff. rules:
− Oftentimes, it is not know who the • When the costs of the improvement made by the
male is. conjugal partnership and any resulting increase in
− During the pregnancy of the value are more than the value of the property at the
female, its owner is greatl time of the improvement, the entire property of one of
burdened by the consequential the spouses shall belong to the conjugal partnership,
expenses and virtual uselessness subject to reimbursement of the value of the property
of the animal, and it is only fair of the owner-spouses at the time of the improvement;
that when the young is born, the

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Civil Law Review: Property – Paras Notes 18

• Otherwise, said property shall be retained in a. Exempt from reimbursement

ownership by the owner-spouse, likewise subject to b. Entitled to consequential damages
reimbursement of the cost of the imrpovement. (b) C – No right
▪ In either case, the ownership of the entire property shall be
vested upon the reimbursement, which shall be made at the time Measure of DAMAGES:
of the liquidation of the conjugal partnership (Art. 120, FC). ▪ Indemnification for damages shall comprehend not only the
value of the loss suffered (dano emergente or danos) but also
“WHATEVER IS BUILT” that of the profits which the obligee failed to realize (lucro
▪ Refers to all kinds of constructions with a roof, and used as cessante or perjuicios) (Art. 2200).
residence, for office, or social meetings, etc.
REIMBURSEMENT:
Legal Maxims: ▪ May the landowner return the materials instead of reimbursing
▪ Accessorium non ducit sed sequitor suum principali. their value, without the consent of the owner of the materials?
• The accessory does not lead but follows the principal. • IT DEPENDS.
• If the principal is given, the accessory is also given; o If no damage has been made to the
but if the accessory is given, this does not necessarily materials, or they have not been transformed
mean that the principal is also given. as a result of the construction, they may be
▪ Accessorium sequitor naturam rei cui accedit. returned (at the landowner’s expense).
• The accessory follows the nature of that to which it o If damage has been made or there has been a
relates. transformation, they cannot be returned
▪ Aedificatum solo, solo cedit. anymore.
• What is built upon the land goes with it.
• The land is the principal, and whatever is built on it RIGHT TO REMOVE:
becomes the accessory. ▪ May still be availed of even if the landowner already demolised
or removed the plantings, constructions or works.
ART. 446. All works, sowing, and planting are presumed made by
the owner and at his expense, unless the contrary is proved. BAD FAITH:
▪ BPS: if he makes use of the land or materials which he knows
Disputable Presumptions: belong to another.
▪ The works, sowing, and planting were made by the owner. ▪ OWNER OF THE MATERIALS: if he allows another to use the
▪ They were made at the owner’s expense. materials without informing him of the ownership thereof.
▪ IF BOTH PARTIES ARE IN BAD FAITH, consider them in
Art. 447. The owner of the land who makes thereon, personally or GOOD FAITH.
through another, plantings, constructions or works with the
materials of another, shall pay their value; and, if he acted in bad GOOD FAITH:
faith, he shall also be obliged to the reparation of damages. The ▪ BPS: if he did not know that he had no right to such land or
owner of the materials shall have the right to remove them only materials.
in case he can do so without injury to the work constructed, or ▪ OWNER OF THE MATERIALS:
without the plantings, constructions or works being destroyed. • if he did not know that anohter was using his
However, if the landowner acted in bad faith, the owner of the materials; or
materials may remove them in any event, with a right to be • granting that he did know, if he informed the user of
indemnified for damages. the ownership thereof ans made the necessary
prohibition.
A – owner of the land ▪ It is always presumed and upon him who alleges bad faith rests
B – builder, planter, sower the burden of proof (Art. 527).
C – owner of the materials
EQUITABLE TITLE to / INTEREST in REAL PROPERTY:
AB – in good faith ▪ The plaintiff in an action for quieting of title must at least have
C – in good faith an equitable title to or an interest in the real property which is
the subject matter of the action.
(a) AB – Right of appropriation
(b) C – ART. 448. The owner of the land on which anything has been
a. Right of reimbursement built, sown or plainted in good faith, shall have the right to
b. Limited right of removal appropriate as his own the works, sowing or planting, after
payment of the indemnity provided for in Articles 546 and 548, or
AB – in bad faith to oblige the one who built or planted to pay the price of the land,
C – in good faith and the one who sowed, the proper rent. However, the builder or
planter cannot be obliged to buy the land if its value is
(a) AB – No right considerably more than that of the building or trees. In such case,
(b) C – he shall pay reasonable rent, if the owner of the land does not
a. Right of reimbursement + damages choose to appropriate the building or trees after proper
b. Absolute right of removal + damages indemnity. The parties shall agree upon the terms of the lease and
in case of disagreement, the court shall fix the terms thereof.
AB – in good faith
C – in bad faith A – owner of the land
B – builder, planter, sower
(a) AB – C – owner of the materials

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Civil Law Review: Property – Paras Notes 19

▪ Payment is to be made either on the date fixed by agreement or

A – in good faith the date fixed by the Court.
BC – in good faith ▪ After the owner of the land has given to the builder or possessor
in good faith the proper indemnities, the BPS may be ordered to
(a) A – vacate the land.
a. Right of appropriation ▪ If in the meantime, the BPS receives rent from a lessee, such
b. Right to demand price of land or rent must be deducted from whatever indemnity is due him.
c. Right of removal (if, after having selected compulsory ▪ During the period of retention, the BPS cannot be said to be a
sale, BC fails to pay for the land) possessor in good faith, hence, he is not entitled to the fruits
(b) BC – thereof.
a. Right to reimbursement of necessary and useful ▪ Basis of reimbursement: current market value of the
expenses (if A elects first option) improvements.
b. Right to retention (if A elects second option) ▪ Right of the landowner before he makes the choice: ONLY the
right to exercise his option.
STATE OF FORCED CO-OWNERSHIP ▪ Nothing in the language of the law justifies the conlcusion that
▪ Art. 448 is NOT mandatory. upon failure of the builder to pay the value of the land when
• The parties may agree to adjust their rights in some such is demanded by the landowner, the latter automatically
other way. becomes the owner of the improvements.
▪ The option granted to the landowner is not absolute, as when it • Available Remedies:
is impractical for the landowner to exercise the first alternative. a. They may leave things as they are and assume the
▪ Before settlement is reached between the parties, the landowner relation of lessor and lessee.
my not legally demand rental for his land, for the BPS is in good • Rent may be fixed by the court in case of
faith and is entitled to retain in the meantime. disagreement.
▪ The option is granted to the landowner because: b. The landowner may have the house removed.
• His right is older; • Right of demolition exists because the
• By principle of accession, he entitled to the ownership owner has chosen to sell his land and the
of the accessory thing. builder has failed to pay.
▪ The lien of the BPS on the constructions may be annotated in the c. The landowner may consider the price of the land
certificate of title by means of a petition filed in the original case as an ordinary money debt of the builder.
wherein the decree of registration under the Torrens system was • He may enforce payment thru an ordinary
entered. action for the recovery of a money debt.
• This is to protect the rights of the builder to the • The execution of judgment may be done by
indemnity, in case the property is sold to a purchaser levying on the land and the house both of
for value. which may be sold at a public auction.
• The landowner will them keep for himself
GOOD FAITH the proceeds equivalient to the value of the
▪ BPS: if he thought that the land was his. land; the rest will be turned over to the
▪ LANDOWNER: builder who cannot complaint of any
• if he did not know that somebody was building on his deficiency.
land; or ▪ The landowner’s exercise of his option can only take place after
• even if he did know, if he expressed his objection. the BPS shall have come to know of the intrusion, i.e. when both
parties shall have become aware of it.
INDEMNITY in case of APPROPRIATION: • Only then will the occasion for exercising the option
▪ Art. 546 & 548. arise, for it is only then that both parties have been
• Necessary expenses aware that a problem exists in regard to their property
o Those made for the preservation of the thing rights.
or those without which the thing would ▪ Writ of demolition is subect to due notice and hearing.
deteriorate or be lost, e.g. those incurrd for
cultivation, production, and upkeep. BPS
o Include necessary repairs. ▪ If the landowner elects to compel the BPS to buy the land, the
− Ordinary repairs: BPS is NOT entitled to the right of retention because he is the
o Those required by the one required to pay.
wear and tear due to the ▪ BPS must be a possessor in good faith.
natural use of the thing • EX: When the BPS constructs with the consent of the
and are indispensable for landowner.
it preservation (Art. • If BPS is usufructuary, follow Art. 579 & 580.
549). ▪ Art. 448 applies even if the land is of public dominion.
• Useful expenses • State can exercise the option.
o Those that augment the income of the thing
upon which they are spent, or add value to Sale of the Land by the Landowner:
the property but do not include the value of ▪ If the land owner sells or in any other way aleinates the land in
the farming implements or work animals favor of a stranger, the builder shall have a cause of action
which do not remain on the land. primarily against the new owner because he benefited from the
• Luxurious expenses – if he desires to appropriate them accession.
for himself • EXCEPTION: When the buyer is in good faith.
▪ Ownership of the thing built, sown, or planted does NOT pass to
the landowner till after payment therefor has been given.

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Civil Law Review: Property – Paras Notes 20

• EXCEPTION TO THE EXCEPTION: When the buyer

has actual knowledge of the true ownership of the A – in good faith
building. BC – in bad faith
▪ New owner, if the landowner has not made the choice upon the
sale, will exercise the option. (a) A –
a. Right of appropriation + damages
When Applicable in Ejectment Cases: b. Right to demand removal or demolition + damages
▪ If as a result of a defective donation of land, the “donee” c. Right to demand price of land or rent + damages
constructs in good faith a building thereon, and if there is no (b) BC – No right except reimbursement of necessary expenses for
dispute as to onwership of the building, Art. 448 applies. preservation of land
• REASON:
o To avoid multiplicty of suits. GATHERED AND GROWING CROPS
o To administer practical and speedy justice.
A – owner of the land
IRREVOCABILITY OF CHOICE: B – builder, planter, sower
▪ Once a choice is made by the landowner, it is generally C – owner of the materials
irrevocable.
A – in good faith
Criticisms on Art. 448 (J. JBL Reyes): BC – in bad faith
▪ The landowner would be forced to have constructions or
plantings which he considers useless. ▪ If the crops have already been gathered, return the vlaue of the
▪ Squatters may be invited (since good faith is presumed). crops or the crops themselves MINUS the expenses essential for
▪ A “forced lease” may result and this is not good because it their production, gathering, and preservation (Art. 443).
would be compulsory, and moreover, the Court may not include ▪ If the crops have not yet been gathered, i.e., if the crops are still
the lucrum cessans (unrealized profit) as part of the rent (which, stnading, they are forfeited in favor of the owner of the land,
in some cases, may be very large). without any right to indemnity (EXCEPT necessary expenses for
▪ The rule is almost equivalent ot deprivation of property for the preservation – not of the crops – but of the land) (Art. 449, 452).
beenfit of another (private) person, without just compensation, • Reason: Accession
and would thus be contrary to the Constitution.
▪ Since it was the BPS who made the mistake, he must bear the Rule Applicable if Builder id Enemy Country:
losses resulting from his own actuations, regardless of his good ▪ Property owned by the RP.
or bad faith. • The rules are not designed to regulate relations
between private persons and a sovereign belligerent,
Code Commission: nor intended to apply to constructions made
▪ Purpose of Art. 448: To prevent injustice. exclusively for prosecuting a war, when military
▪ The lucrum cessans may be included in the rent by the courts in necessity is temporarily paramount.
case of the failure of the parties to agree. • International law allows the temporary use by the
▪ No lease is compulsory since the owner is allowed the remedy of enemy of private land and buildings for all kinds of
appropriation. purposes demanded by necessities of war.
o There is a disturbance as of right
Application by Analogy: (perturbacion de derecho), NOT disturbance
▪ When one loses the ownership of the land on which he earlier of a mere trespasser (perturbacion de
built an apartnment. hecho).

ART. 449. He who builds, plants or sows in bad faith on the land ART. 452. The builder, planter or sower in bad faith is entitled to
of another, loses what is built, planted or sown without right to reimbursement for the necessary expenses of preservation of the
indemnity. land.

Applicability: Criticism on Art. 452:

▪ In the case of planting or sowing – only to GROWING or ▪ This article is an inducement, rather than a deterrent to building,
STANDING CROPS, not to gathered crops (Art. 443). planting, and sowing on another’s land in bad faith.
▪ The act is a trespass or forcible entry.
ART. 450. The owner of the land on which anything has been ▪ A person may just plant or sow on another’s land because he
built, planted or sown in bad faith may demand the demolition of expects a higher compensation than what he can get out of the
the work, or that the planting or sowing be removed, in order to land entered into.
replace things in their former condition at the expense of the
person who built, planted or sowed; or he may compel the builder Refutation:
or planter to pay the price of the land, and the sower the proper ▪ The offended party is still entitled to recover damages.
rent. ▪ Only necessary expenses must be paid.
▪ All that can be recovered are the necessary expenses, not a
ART. 451. In the cases of the two preceding articles, the higher compensation.
landowner is entitled to damages from the builder, planter or
sower. ART. 453. If there was bad faith, not only on the part of the
person who built, planted or sowed on the lanf of another, but
A – owner of the land also on the part of the owner of such land, the rights of one and
B – builder, planter, sower the other shall be the same as though both had acted in good
C – owner of the materials faith.

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Civil Law Review: Property – Paras Notes 21

B – in good or bad faith

It is understood that there is bad faith on the part of the C – in bad faith
landowner whenever the act was done with his knowledge and
without opposition on his part. (a) First, determine rights of A and B.
(b) Then, with respect to C, apply Art. 449 – 452, since B shall be
A – owner of the land considered agent of C.
B – builder, planter, sower
C – owner of the materials RIGHTS OF OWNER OF THE MATERIALS
▪ If in BAD FAITH:
A – in bad faith • He loses all rights to be indemnified.
BC – in bad faith • He can be liable for consequnetial damages (as when
materials are of an inferior quality).
Same as Art. 448. ▪ If in GOOD FAITH:
• He is entitled to reimbursement from the BPS
Reason: principally.
▪ The bad faith of one neutralized the other. o It was the BPS who first made use of the
materials.
When Applicable: • In case of insolvency of the BPS, the landowner is
▪ This also applies to sales made in violation of the Homestead subsidiarilly liable, if he makes use of the materials.
Law. o This is so if he appropriates the construction.
• If a buyer buys a homestead within the period when it o NOT if the compels the BPS to:
cannot be bought, both he and the seller are in bad − Purchase the land; OR
faith. − Demolish the construction.
• So borh can be considered in good faith.
BAD FAITH ON THE PART OF 3 PARTIES:
BAD FAITH ▪ If all the 3 parties are in bad faith, all must be considered to have
▪ LANDOWNER: whenever the act was done with his knowledge acted in good faith.
and without opposition on his part.
▪ BPS: if building, planting or sowing was made knowingly by When Builder May Demand Reimbursement from Landowner:
one on land not belonging to him and without authority. ▪ ONLY if the landowner profits by the accession.
▪ NOT when he does not choose to appropriate the construction or
ART. 454. When the landowner acted in bad faith and the planting for himself.
builder, planter or sower proceeded in good faith, the provisions
of Art. 447 shall apply. ART. 456. In the cases regulated in the preceding articles, good
faith does not necessarily exclude negligence, which gives right to
A – owner of the land damages under Art. 2176.
B – builder, planter, sower
C – owner of the materials GOOD FAITH MAY CO-EXIST WITH NEGLIGENCE
▪ In negligence, there is no internt to do wrong.
A – in bad faith • Damages for culpa will arise under Art. 2176.
BC – in good faith
ART. 457. To the owners of lands adjoining the banks of rivers
Same as Art. 447. belong the accretion which they gradually receive from the effects
of the current of the waters.
“THROUGH ANOTHER”
▪ Refer to the owner of materials who in good faith uses them for Forms of Accession Natural:
BPS on someone else’s land (the landowner who is in bad faith). 1. Alluvium
2. Avulsion
ART. 455. If the materials, plants or seeds belong to a third 3. Change of course of rivers
person who has not acted in bad faith, the owner of the land shall 4. Formation of islands
answer subsidiarily for their value and only in the event that the
one who made use of them has no property with which to pay. ALLUVIUM
▪ Alluvio
This provision shall not apply if the owner makes use of the right ▪ The soil deposited or added to (accretion) the lands adjoining the
granted by Art. 450. If the onwer of the materials, plants or seeds banks of rivers, and gradually received as an effect of the current
has been paid by the builder, planter or sower, the latter may of the waters.
demand from the landowner the value of the materials and labor. ▪ It is owned by the owner of the estate fronting the river rank
(RIPARIAN OWNER).
A – in good or bad faith ▪ Rules can also apply if a river bed gradually changes.
B – in good or bad faith
C – in good faith
ACCRETION ALLUVIUM
(a) First determine rights of A and B.
(b) Then C can hold B primarily liable and A subsidiarily liable,
except under Art. 450.

A – in good or bad faith

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Civil Law Review: Property – Paras Notes 22

▪ The interests of agriculture require that the soil be given to the

The process whereby the soil is The soil deposited on the estate
person who is in the best position to cultivate the same;
deposited fronting the river bank
▪ Since after all, it cannot be said with certainty from whom the
soil came.
RIPARIAN OWNER • The identification of previous owners is impossible.
- the owner of the estate. • It may just as well be logically given to him who can
Broader. Applies only to the soil best utilize the property.
deposited on river banks.
It is possible that a soil deposit Accretions on the diff. bodies of water and their owners:
be made also on the banks of Lake Owners of the estate to which
lakes. they have been added
Accretions deposited gradually Sea State
upon lands contiguous to
creeks, streams, rivers, lakes by Island Formed in Non- Owner of the island
accessions or sediments from Navigable River
the waters thereof, belong to the
owner of such lands.
Effect of Public Service Constructions or Easements on River Banks:
▪ If a public service construction, the owner of the land can no
Essential Requisites of Alluvium: longer be considered the riparian owner. Government will own
1. The deposit should be gradual and imperceptbiel (as a process); the accretion.
2. Cause is the current of the river; ▪ If there is only an easement for the benefit of navigation,
• And not due to works expressly designed for the floatage, fishing, and salvage, the right of the riparian owner to
purpose. the accretion subsists.
3. Current must be that of a river; • Payment of the indemnity under Art. 638 does not
• If a lake, the Spanish Law of Waters must apply. extinguish ownership over the land.
• If the sea, the deposit belongs to the State.
4. The river must continue to exist; ART. 458. The owners of estates adjoining ponds or lagoons do
• Otherwise, if the river disappears, Art. 461 should not acquire the land left dry by the natural decrease of the
apply. waters, or lose that inundated by them in extraordinary floods.
5. The increase must be comparatively little, and not, for example,
such as would increase the area of the riparian land by over LANDS ADJOINING PONDS AND LAGOONS
150%. ▪ Art. 458, strictly speaking, does not deal with alluvium, for there
is no deposit of soil sediment.
It is NOT necessary that: ▪ Art. 458 applies when the estate adjoins:
▪ The riparian owner should make an express act of possession, • A pond; or
the accession being automatically his the moment the soil • A lagoon.
deposit can be seen. ▪ Art. 458 does not apply for creeks, rivers, or other streams.
▪ The riparian owner has completely paid for the value of the • Art. 77 of the Spanish Law of Waters governs.
riparian estate (in case of purchase), as long as he has already o “Lands accidentally inundated by the waters
the equitable or beneficial title. of lakes, or by creeks, rivers, or other
streams shall continue to be the property of
Alluvium by ARTIFICIAL means their respective owners.”
▪ This is prohibited and penalized UNLESS made with the • When a arcel of land is accidentally inundated and for
authorization of the Government. a period fo time said land becomes part of the river
• There must be a desire to cause alluvium. bad, such fact does not permanently deprive the owner
of the ownership, and ownership is reverted to the
Registration: owner when the land subsequently appears, and is left
▪ Failure to register the acquired alluvial deposit by accretion for a dry by the construction of river control work (Paredes
period of 50 years subjects said accretion to acquisition thru v. Laureta (CA)).
prescription by third persons.
▪ While the additional area become property of the owner of the POND
original parcel of land, the are does not automatically become ▪ A body of stagnant water without an outlet, larger than a puddle
registered land. and smaller than a lake, or a like body of water with small outlet.
• The same may still be acquired by third persons. by
prescription. LAGOON
▪ In buying a parcel of land in installment plan, the buyer is the ▪ A small lake, ordinarily of fresh water, and not very deep, fed by
owner of the alluvial deposit that may accrue before full floods, the hollow bed of which is bounded by the elevations of
payment is made because he has the beneficial and equitable the land.
title over the property.
LAKE
Reasons why alluvium is granted the riparian owner: ▪ A body of water formed in depressions of the earth; ordinarily of
▪ To compensate him for the loss he may suffer due to erosion or fresh water, coming of rivers, brooks, or springs and connected
the destructive force of the water and danger from floods; with the sea by them.
▪ To compensate him because the property is subject to
encumbrances and legal easements;

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Civil Law Review: Property – Paras Notes 23

ART. 459. Whenever the current of a river, creek or torrent ▪ This is essential.
segregates from an estate on its bank a known portion of land ▪ Mere placing on top of another’s land will not make the article
and transfers it to another estate, the owner of the land to which inapplicable as long as identification is still possible.
the segregated portion belonged retains the ownership of it, ▪ If the two have mixed with each other that identification cannot
provide that he removes the same within two years. take place, the article should not apply.
• Commixtion/confusion should apply.
AVULSION ▪ If the detached portion is not attached to another’s land but is
▪ The process whereby the current of a river, creek, or torrent simply in the middle of the river, ownership still remains with
segregates from an estate on its bank a known portion of land the person from whose land it had been detached.
and transfers it to another estate.
▪ The removal of considerable quantity of earth upon or ART. 460. Trees uprooted and carried away by the current of the
annexation to the land of another, suddenly and by the waters belong to the owner of the land upon which they may be
perceptible action of the water. cast, if the owners do not claim them within six months. If such
▪ “FORCE OF THE RIVER” owners claim them, they shall pay the expenses incurred in
• implis a violent tearing or breaking away. gathering them or putting them in a safe place.
▪ “DELAYED ACCESSION”
• if the owner abandons the soil involved, or fails to Rule on UPROOTED TREES:
remove the same within two years, the land to which it ▪ Even if the trees have been transplanted by the owner of the land
has been attached acquires ownership thereof. upon which they have been cast on his own land, ownership still
pertains to the person who lost the trees provided that the claim
RIVER was made properly.
▪ a natural stream of water, of greater volume than a creek or ▪ The owner of the land upon which the trees have been cast, does
rivulet flowing, in a more or less permanent bed or channel, not have to wait for 6 months before he can temporarily set them
between defined banks or walls, with a current which may either aside to make the proper use of his own land.
be continuous in one direction or affected by the ebb and flow of ▪ If not uprotted, Art. 459 applies.
the tide.
Prescriptive Period:
CREEK ▪ Claim must be made within 6 MONTHS.
▪ a small stream less than a river; a recess or inlet in the shore of a • This is only a condition precedent.
river, and not a separate or independent stream, though it is ▪ The action must be filed within 4 YEARS (Art. 1140).
sometimes used in the latter meaning. • The recovery must be made within said period.

TORRENT COMPENSATION for the OWNER OF THE LAND upon which the
▪ a violent, rushing, or turbulent stream. uprooted trees have been cast:
▪ If he has incurred expenses for preserving them, as when he
Alluvium v. Avulsion gathered them in a safe place for eventual return, or when he
transplants them, only for preservation purposes, he is doubtless
Alluvium Avulsion entitled to indemnification.
The deposit of the soil is Sudden or abrupt process may ▪ If he has done nothing, he cannot demand indemnification,
gradual. be seen. UNLESS he has suffered in any way, and the real owner has
benefited, in that, for example, they were not carried away by
Soil cannot be identified. Identifiable or verifiable. the current.

Belongs to the owner of Belongs to the owner from ART. 461. River beds which are abandoned through the natural
property to which it is attached. whose property it was detached. change in the course of the waters ipso facto belong to the owners
whose lands are occupied by the new course in proportion to the
There is merely an attachment. There is first a detachment area lost. However, the owners of the lands adjoining the old bed
followed by attachment. shall have the right to acquire the same by paying the value
thereof, which value shall not exceed the value of the area
PRESUMPTION: GRADUAL occupied by the new bed.
▪ In the absence of evidence that the change in the course of the
river was sudden or that it occurred through alluvium, the CHANGE OF COURSE OF RIVERS
presumption is that the change was GRADUAL and was caused ▪ “Proportion” applies only when there are two or more owners
by ALLUVIUM and erosion. who have lost a portion of their lots.
• The entire abandoned bed will go to them
“REMOVAL WITHIN TWO YEARS” proportionately, i.e., in proportion to the area each has
▪ The segregated portion is usally very small. It is thus useless to lost.
the owner of the land from which it originated because of the ▪ Purpose: To compensate for the loss of the land occupied by the
distance between the two lands. new bed.
▪ The removal may be practicable.
• It is more equitabl to compensate the actual losers than
• The known portion of the land may either be sold to to add land to those who have lost nothing.
persons who may have use for it, e.g. for filling a low
place, or the original owner may restore it to his land. Requisites:
▪ Purpose: To prevent its becoming permanently attached, 1. The change must be sudden in order that the old river bed may
physically speaking, to the land which it has been transferred. be identified.

“IDENTIFIABLE/VERIFIABLE”
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Civil Law Review: Property – Paras Notes 24

• There must be sufficient evidence showing that the ART. 465. Islands which through successive accumulation of
river changed its course not gradually or alluvial deposits are formed in non-navigable and non-floatable
imperceptively, but abruptly. rivers, belong to the owners of the margins or banks nearest to
2. The change of the course must be more or less permanent, and each of them, or to the owners of both margins if the island is in
not temporary overflooding of another’s land. the middle of the river, in which case, it shall be divided
3. The change of the river bed must be a natural one, i.e. caused by longitudinally in halves. If a single island thus formed be more
natural forces. distant from one margin than from the other, the owner of the
a. Not by artificial means e.g. those used by private nearer margin shall be the sole owner thereof.
individuals authorized by the government – in
which case the State may give the old river bed to OWNERSHIP of ISLANDS FORMED ON THE SEAS, LAKES,
the persons responsible for the change. AND NAVIGABLE RIVERS:
4. There must be a definite abandonment by the government. ▪ If formed on the SEA:
5. The river must continue to exist, i.e., it must not completely dry • Within the territorial waters or maritime zone or
up or disappear. jurisditction of the PH – STATE (patrimonial property)
a. Otherwise, the dried up river shall belong to public • Outside of our territorial jurisdiction – THE FIRST
dominion, pursuant to Art. 502. COUNTRY TO EFFECTIVELY OCCUPY THE
SAME.
“IPSO FACTO” o PIL: Discovery and occupation are definite
▪ The prejudiced landowner automatically becomes the owner of modes of acquiring territory.
the abandoned river bed, once the conditions stated in the article ▪ If formed on LAKES or NAVIGABLE or FLOATABLE
are fulfilled or manifest, without the necessity of any action or RIVERS:
exercise of possession on their part. • STATE
▪ The mode of acquisition is BY VIRTUE OF LAW. ▪ If formed on NON-NAVIGABLE or NON-FLOATABLE
RIVERS:
ART. 462. Whenever a river, changing its course by natural • If nearer in margin to one bank – OWNER OF
causes, opens a new bed through a private estate, this bed shall NEARER MARGIN
become of public dominion. • If equidistant – the island shall be divided
longitudinally in halves, each bank getting half.
Rule if New River Bed is itself Abandoned:
▪ Apply Art. 461. NAVIGABLE or FLOATABLE RIVER
• The owner of the land flooded by the new change ▪ If useful for floatage and commerce, whether the tides affect the
would own the newly abandoned bed. water or not.
▪ If the river goes back to its old course, the owner of the land ▪ Should benefit trade and commerce.
originally flooded would get back the ownership of the land
originally which he had lost. NON-NAVIGABLE RIVER
▪ The abandoned river bed is given to the owners of the lands onto ▪ Opposite of navigable river.
which the river changed its course instead of the riparian
owners. ▪ It is the duty of the STATE to declare which rivers are navigable
and which are not.
ART. 463. Whenever the current of a river divides itself into
branches, leaving a piece of land or part thereof isolated, the Preference of Nearer Margin:
owner of the land retains his ownership. He also retains it if a ▪ The nearer margin has better chances of developing the island in
portion of land is separated from the estate by the current. the interest of agriculture.

FORMATION OF ISLAND BY THE BRANCHING OFF OF A Rule to Follow if a New Isalnd is Formed between the Older Island
RIVER and the Bank:
▪ ISOLATION ▪ The owner of the older island is considered a riparian owner, and
• Not physically moved if the new island is nearer in margin to the older island, the
▪ SEPARATION owner of the older island should be considered also the owner of
• Physically moved the new island.

Section 3 – RIGHT OF ACCESSION WITH RESPECT TO

FORMATION OF ISLAND FORMATION OF ISLANDS MOVABLE PROPERTY
BY BRANCHING OFF OF A BY SUCCESSIVE
RIVER ACCUMULATION OF Three Types of Accession with Respect to Movable Property:
ALLUVIAL DEPOSITS 1. Adjunction
Art. 453 Art. 464 & 465 2. Mixture
a. Commixtion
No accession takes place. Accession takes place. b. Confusion
3. Specification
The owner retains ownership of
the segregated portion. ART. 466. Whenever two movable things belonging to different
owners are, without bad faith, united in such a way that they
form a single object, the owner of the principal thing acquires the
ART. 464. Islands which may be formed on the seas within the
accessory, indemnifying the former owner thereof for its value.
jurisdiction of the Philippines, on lakes, and on navigable or
floatable rivers belong to the State.
ADJUNCTION / CONJUNCTION

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Civil Law Review: Property – Paras Notes 25

▪ The process by virtue of which two movable things belonging to ▪ Expenses for separation must be borne by the person who
different owners are united in such a way that they form a single caused the union, considering that both parties are in good faith.
object.
▪ May be done in GOOD FAITH or in BAD FAITH. ART. 470. Whenever the owner of the accessory thing has made
• NOTE: Art. 526. the incorporation in bad faith, he shall lose the thing
incorporated and shall have the obligation to indemnify the
Kinds of Adjunction: owner of the principal thing for the damages he may have
1. Inclusion suffered.
2. Soldering
a. Ferruminatio – objects are of the same material If the one who has acted in bad faith is the owner of the principal
b. Plumbatura – objects are of different materials thing, the owner of the accessory thing shall have a right to
3. Escritura (Writing) choose between the former paying him its value or that the thing
4. Pintura (Painting) belonging to him be separated, even though, for this purpose it be
5. Weaving necessary to destroy the principal thing; and in both cases,
furthermore, there shall be indemnity for damages.
ART. 467. The principal thing, as between two things
incorporated, is deemed to be that to which the other has been If either one of the owners has made the incorporation with the
united as an ornament, or for its use or perfection. knowledge and without the objection of the other, their respective
rights shall be determined as though both acted in good faith.
ART. 468. If it cannot be determined by the rule given in the
preceding article which of the two things incorporated is the ART. 471. Whenever the owner of the material employed without
principal one, the thing of the greater value shall be so his consent has a right to an indemnity, he may demand that this
considered, and as between two things of equal value, that of the consist in the delivery of a thing equal in kind and value, and in
greater volume. all other respects, to that employed, or else in the price thereof,
according to expert appraisal.
In painting and scupture, writings, printed matter, engaving and
lithographs, the board, metal, stone, canvas, paper or parchment INDEMNITY – HOW PAID
shall be deemed the accessory thing. (a) By delivery of a thing equal in kind and value (QUANTITY,
QUALITY); OR
Test to Determine which is the Principal and which is the Accessory: (b) By payment of price as appraised by experts.
▪ The PRINCIPAL is (in the order of preference): • Sentimental value must be considered.
(a) That to which the other ha been united as an ornament,
or for its use, or perfection. Applicability:
• The ACCESSORY is that which has been united ▪ This applies only if material was employed without the owner’s
as an ornament, etc. consent.
o TEST OF INTENTION. ▪ The material may be the principal or the accessory.
(b) That of greater value.
(c) That of greater volume. ART. 472. If by the will of their owners two things of the same or
(d) That which has greater merits (utility + volume). different kinds are mixed, or if the mixture occurs by chance, and
• EX: Motor vehicle: in the latter case the things are not separable without injury, each
o Principal: Engine owner shall acquire a right proportional to the part belonging to
o Accessories: Other parts. him, bearing in mind the value of the things mixed or confused.
▪ NOTE: Special rules under PAR. 2.
ART. 473. If by the will of only onw owner, but in good faith, two
Adjunction concerning THREE OR MORE THINGS: things of the same or different kinds are mixed or confused, the
▪ Determine the principal. rights of the owners shall be determined by the provisions of the
▪ All the rest are considered accessories. preceding article.
▪ If there are two principals, determine which, as between them,
should be considered the principal and which is the accessory. If the one who caused the mixture or confusion acted in bad faith,
he shall lose the thing belonging to him thus mized or confused,
ART. 469. Whenever the things united can be separated without besides being obliged to pay indemnity for the damages caused to
injury, their respective owners may demand their separation. the owner of the other thing with which his own was mixed.

Nevertheless, in case of the thing united for the use, MIXTURE

embellishment or perfection of the other, is much more precious ▪ the combination or union of materials where the respective
than the principal thing, the owner of the former may demand its identities of the component elements are lost.
separation, even though the thing to which it has been ▪ There is greater inter-penetration or decomposition of the objects
incorporated may suffer some injury. that have been mixed.

SEPARATION WITHOUT INJURY Kinds:

▪ No real accessoin. 1. Commixtion
▪ Applies only to: • Solids are mixed
• Soldering 2. Confusion
• Inclusion a. Liquids are mixed.

ACCESSORY MORE PRECIOUS THAN THE PRINCIPAL: Rules:

▪ If the mixture is caused by:

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Civil Law Review: Property – Paras Notes 26

• One owner in good faith; • GR: If the worker is in bad faith, the owner of ther
• The will of both owners; material has an option; thus, he –
• Chance (accident); o Can appropriate the work without paying for
• A common agent; the labor; OR
• Both parties in bad faith: o He can demand indemnity for the material
o CO-OWNERSHIP results. plus damages.
− Each onwer acquires an interest or • EXCEPTION: The option is no available if the value
right proportional to the value of of the resultant work is more valuable for artistic or
his material. scientific reasons.
▪ If the mixture is made by:
• One owner in bad faith, then –
o He loses his material (in favor of the other);
and
o He is liable for damages. Adjunction v. Mixture v. Specification
▪ If the mixture is made by common consent, the stipulations of
the parties should be controlling. ADJUNCTION MIXTURE SPECIFICATION
▪ When the things mixed/confused are of exactly the same kind, Involves at least two Involves at least two May involve only
quantity, and quality, all that is needed would be to divide the things things one thing (may be
mixture into two equal parts. more) but form is
▪ If the mixture was caused by the negligence of one of the changed
parties, the party negligent is liable for his culpa aquiliana and
should indemnify for damages (Art. 2176). As a rule, accessory A s a r u l e , c o - As a rule, accessory
• Good faith does not necessarily exclude negligence follows principal ownership results follows principal
(Art. 456).
The things joined The things mized or The new object
ART. 474. One who in good faith employs the material of another retain their nature confused may either retains or preserves
in whole or in part in order to make a thing of a different kind, retain or lose their the nature of the
shall appropriate the thing thus transformed as his own, respective natures original object
indemnifying the owner of the material for its value.
ART. 475. In the preceding articles, sentimental value shall be
If the material is more precious than the transformed thing or is
duly appreciated.
of more value, its owner may, at his option, appropriate the new
thing to himself, after first paying indemnity for the value of the
Chapter 3 – QUIETING OF TITLE
work, or demand indemnity for the material.
ART. 476. Whenever there is a cloud on title to real property or
If in the making of the thing bad faith intervened, the owner of
any interest therein, by reason of any instrument, record, claim,
the material shall have the right to appropriate the work to
encumbrance or proceeding which is apparently valid or effective
himself without paying anything to the maker, or to demand of
but is in truth and in fact invalid, ineffective, voidable, or
the latter that he indemnify him for the value of the material and
unenforceable, and may be prejudicial to said title, an action may
the damages he may have suffered. However, the owner of the
be brought to remove such cloud or to quiet the title.
material cannot appropriate the work in case the value of the
latter, for artistic or scientific reasons, is considerably more than
An action may also be brought to prevent a cloud from being cast
that of the material.
upon title to real property or any interest therein.
SPECIFICATION
ACTION TO REMOVE CLOUD FROM TITLE
▪ Specificatio.
▪ Reason: Equity comes to the aid of him who would suffer if the
▪ The giving of a new form to another’s material thru the instrument were enforced.
application of labor.
• Material undergoes a transformation or change of ▪ Purpose: To secure an adjudication that a claim of title to or an
interest in property, adverse to that of the complainant, is
identity.
invalid, so that the complainant and those claiming under him
▪ In general, the rule of “ACCESSORY FOLLOWS THE may be forever afterward free from any danger of hostile claim.
PRINCIPAL” applies, with LABOR being considered the
principal. ▪ Task of the Courts: Determine the respective rights of the
complainant and other claimanat not only to place things in their
proper place, to make the one who has no rights to said
Rules:
immovable respect and not disturb the other, but also for the
▪ GOOD FAITH benefit of both, so that he who has the right would see every
• GR: If the worker (principal) is in good faith –
cloud of doubt over the property dissipated, and he could
o He appropriates the new thing;
afterwards without fear introduce the improvements he may
o But he must indemnify for the materials.
desire, to use, and even to abuse the property as he deems best.
• EXCEPTION: If the materials (accessory) is more
precious than the new thing or is more valuable, the
Kinds of Action Referred to:
owner of the material has the option:
o To get the new thing but he pays for the 1. Remedial
• Action to remove the cloud or to quiet tile.
work; OR
o To demand indemnity for the material. 2. Preventive
• Action to prevent a future cloud or doubt
• Actio quia timet
▪ BAD FAITH

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Civil Law Review: Property – Paras Notes 27

CLOUD:
Period does not prescribe Period prescribes
▪ This exists because:
• Of an instrument (deed or contract) or record or claim Only right is to remove or Aside from being given the
or encumbrance or proceeding. prevent cloud right to remove or prevent
• Which is apparently valid or effective. cloud, he may also bring the
• But is, in truth and in fact, invalid, ineffective, ordinary actions of ejectment,
voidable, or unenforceable, or extinguished (or publiciana, or reivindicatoria
terminated) or barred by extinctive prescription. within the proper prescriptive
• And may be prejudicial to the title periods
▪ TEST: Would the owner of the property in an action at law
brought by the adverse party, and founded upon the instrument
or claim, be required to offer evidence to defeat a recovery? ART. 478. There may also be an action to quiet title or remove a
• If proof would be essential, the cloud exists. cloud therefrom when the contract, instrument or other
• If proof is not needed, no cloud is cast. obligation has been extinguished or has been terminated, or has
been barred by extinctive prescription.
Rights of a Property Owner to have Clouds Eliminated:
▪ The owner has the right to ask from the competent courts: ART. 479. The plaintiff must return to the defendant all benefits
• That their respective rights be determined; he may have received from the latter, or reimburse him for
• Not only to place things in their proper place, to make expenses that may have redounded to the plaintiff’s benefit.
the one who has no rights to said immovable respect
and not disturb the other, Duty of Plaintiff to make certain REIMBURSEMENT:
• But also for the benefit of both, 1. Basis: Equity
• So that he who has the right would see every cloud of 2. Purpose of the action is to quiet title and NOT to obtain
doubt over the property dissipated, some pecuniary benefits.
• And he could afterwards without fear introduce the
improvements he may desire, to use, and even to abuse ART. 480. The principles of the general law on the quieting of
the property as he deems best (Bautista v. Exconde). title are hereby adopted insofar as they are not in conflict with
this Code.
Reasons for Allowing Action:
▪ Prevention of (eventual) litigation. ART. 481. The procedure for the quieting of title or the removal
▪ Protection of the true title and possession. of a cloud therefrom shall be governed by such rules of court as
▪ Promotion of right and justice. the Supreme Court shall promulgate.

Nature of the Action: Chapter 4 – RUINOUS BUILDINGS AND TREES IN DANGER

▪ IN PERSONAM. OF FALLING
▪ Applies to real property, and personal property of the nature of
real property. ART. 482. If a building, wall, column, or any other construction is
in danger of falling, the owner shall be obliged to demolish, it or
Requisite needed to bring an ACTION TO PREVENT A CLOUD: to execute the necessary work in order to prevent it from falling.
▪ There must be a fixed determination on the part of the defendant
to create a cloud. If the proprietor does not comply with this obligation, the
▪ Danger must not be speculative. administrative authorities may order the demolitionof the
structure at the expense of the owner, or take measures to insure
Prescription: public safety.
▪ If the plaintiff is in posssession of the property, action to quiet
title does NOT prescribe. COMPLAINANT
• Reason: While the owner continues to be liable to an ▪ He must either:
action, proceeding, or suit upon the adverse claim, he • have his property adjacent to the dangerous
has a continuing right to be given aid by the court to construction; OR
ascertain and determine the nature of such claim and • have to pass by necessity in the immediate vicinity.
its effect on his title, or to assert any superior equity in ▪ CW: Art. 2190.
his favor.
▪ If the plaintiff is NOT in possession of the property, action may ART. 483. Whenever a large tree threatens to fall in such a way
prescribe or be barred by laches. as to cause damage to the land or tenement of another or to
travelers over a public or private road, the owner of the tree shall
ART. 447. The plaintiff must have legal or equitable title to, or be obliged to fell and remove it; and should he not do so, it shall
interest in the real property which is the subject matter of the be done at his expense by order of the administrative authorities.
action. He need not be in possesion of said property.

Necessity for Title of the Plaintiff:

▪ Legal (Registered)
▪ Equitable (Beneficial)

Non-necessity of Possession:
If Plaintiff is IN Possession If Plaintiff is OUT of Possession

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Civil Law Review: Property – Paras Notes 28

TITLE III. – CO-OWNERSHIP

TENANCY IN COMMON JOINT TENANCY
(CO-OWNERSHIP)
ART. 484. There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons. Involves a physical whole. Involves a physical whole.
In default of contracts, or of special provisions, co-ownership B U T t h e r e i s a n I D E A L BUT there is NO IDEAL
shall be governed by the provisions of this Title. (abstract) division. (abstract) division.
CO-OWNERSHIP Each co-owner being the owner Each and all of them own the
▪ State where an undivided thing or right belongs to two or more of his own ideal share. whole thing.
persons.
▪ The right of common dominion which two or more persons have Each co-owner may dispense of Each co-owner may NOT
in a spiritual (or ideal) part of a thing which is not materially or his ideal or undivided share dispose of his own share
physically divided. (without boundaries) WITHOUT the consent of ALL
▪ NOT a juridical person. WITHOUT the other’s consent. the rest, because he really has
• It is not granted any form of juridical personality. NO IDEAL share.
o Co-owners must litigate in their individual
capacities. If a co-owner dies, his share If a joint-tenant dies, his share
▪ The manifestation of the private right of ownership, which foes to his own heirs. goes by accretion to the other
instead of being exercised by the owner in an exclusive manner joint-tenants by virute of their
over the things subject to it, is exercised by two or more owners survivorship or jus accrecendi.
and the undivided thing or right to which it refers to one and the
same. If a co-owner is a minor, this If one joint-tenant is under a
▪ Possession of a co-owner is like that of a trustee and shall not be does not benefit the others for legal disability (like minority),
regarded as adverse to the other co-owners but in fact as the purpose of prescription, and this benefits the other against
beneficial to all of them. prescription therefor runs whom prescription will not run.
▪ However, a co-owner can onlu alienate his pro indiviso share in against them.
the co-owned property.
▪ There is NO co-ownership when the different people are already Characteristics of Co-ownership:
concretely determined and are separately identifiable even if not 1. There must be more than one subject or owner.
yet technically described. 2. There is one physical whole divided into IDEAL (undivided)
▪ Any co-owner may file not only against a third person but also shares.
against another co-owner who takes exclusive possession and 3. Each ideal share is definite in amount, but is not physically
asserts exclusive ownership of the property. segregated from the rest.
4. Regarding the physical whole, each co-owner must respect each
What Governs Co-ownership? other in the common use, enjoyment, or preservation of the
1. Contracts physical whole.
2. Special legal provisions 5. Regarding the ideal share, each co-owner holds almost absolute
3. Provisions of the title on co-ownership control over the same.
6. It is not a juridical person, i.e. it has no juridical personality.
Sources of Co-ownership (How It Arises): 7. A co-owner is in a sense a trustee for the other co-owners.
1. By LAW
2. By CONTRACT
3. By CHANCE CO-OWNERSHIP ORDINARY PARTNERSHIP
4. By OCCUPATION or OCCUPANCY
5. By SUCCESSION or WILL No legal personality Has legal or juridical
personality
Kinds of Co-ownership: Created by contract or by other Created by contract only
1. From the viewpoint of subject matter: things (express or implied)
a. Co-ownershio of an undivided thing
b. Co-ownership of an undivided right Purpose – collective enjoyment Purpose – profit
2. From the viewpoint of source:
a. Contractual co-ownership Agreement for its to exist for 10 There is no term limit set by the
b. Non-contractual co-ownership years - valid law.
3. From the viewpoint of the rights of the co-owners:
a. Tenancy in common (ownership in common or just co- If more than 10 years, the
ownership) excess is void.
b. Joint tenancy (joint ownership)
20 years is the max. imposed by
the testator or the donee of the
common property.

A s a r u l e , n o m u t u a l As a rule, there is mutual

representation representation

Not dissolved by death or Dissolved by the death or

incapacity of owner incapacity of partner

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Civil Law Review: Property – Paras Notes 29

Can dispose of his share without Cannot substitute another as

RIGHT OF CO-OWNERS TO BRING AN ACTION IN
the consent of others partner in his place without the
EJECTMENT
consent of the others
▪ This is part of the right to defend in court the interests of the co-
Propfit must always depend on Profits may be stipulated upon ownership.
proportionate shares ▪ This covers all kinds of actions for the recovery of possession,
without the necessity of joining all the other co-owners as co-
plaintiffs.
• It is deemed to be instituted for the benefit of all.
CO-OWNERSHIP CONJUGAL PARTNERSHIP • The presumption is that the case was instituted by one
was really in behalf of all.
May arise by an ordinary Arises only because of the ▪ Actions covered:
contract marriage contract • Forcible entry
• Unlawful detainer
S e x o f t h e c o - o w n e r s i s One must be male, the other a • Accion publiciana
immaterial female • Accion reivindicatoria
• Quieting of title
Co-owners may be two or ore Conjugal oweners are always • Replevin
only two
ART. 488. Each co-owner shall have a right to compel the other
Profirs are proportional to Profits are generally 50-50 co-owners to contribute to the expenses of preservation of the
respective interests unless a contrary stipulation is thing or right owned in common and to the taxes. Any one of the
in a marriage settlement latter may exempt himself from this obligation by renouncing so
Death of one does not dissolve Death of either husband or wife much of his undivided interest as may be equivalent to his share
the co-ownership dissolves the conjugal of the expenses and taxes. No such waiver shall be made if it is
partnership prejudicial to the co-ownership.

Generally all the co-owners Generally, the husband is the RIGHT TO REIMBURSEMENT FOR EXPENSES FOR
administer administrator PRESERVATION
▪ This exists even if incurred without prior notification to the
Co-ownership is discouraged by Encouraged by law to provide other co-owners (since the expenses are necessary) BUT he must
law for better family solidarity notify if practicable.

RENUNCIATION
ART. 485. The share of the co-owners, in the benefits as well as in
the charges, shall be proportional to their respective interests. ▪ The one renouncing does not necessarily renounce his entire
interest in the co-ownership.
Any stipulation in a contract to the contrary shall be void.
▪ If the renouncing is in favor of the creditor, said creditor must
give his consent.
The portions belonging to the co-owners in the co-ownership shall • This would be a case of adjudicacion en pago or datio
be presumed equal, unless the contrary is proved.
in solutum, where a debtor gives something in
payment of his debt.
SHARES IN BENEFITS AND CHARGES
▪ If the renouncing is in favor of the other co-owners, a novation
▪ Proportional to the interest of each. (in the form of substitutionof debtor) would result, necessitating
▪ Contrary stipulation is VOID. the consent of said co-owners and of the creditor.
• This is against the nature of co-ownership.
▪ It cannot be implied by mere refusal to pay the proportionate
▪ Each co-owner shares proportionately in the accretion or share.
alluvium of the property.
• Increase in area benefits all.
REIMBURSEMENT
TAXES ▪ Coveres only necessary expenses, even if the value of the
property is thereby increased.
▪ If a co-owner has paid the taxes to prevent the forfeiture of the • Reason: Purpose is not for profit.
common property for tax delinquency, he could compel
contribution from his co-owners. ▪ It can be had against the estate of a deceased co-owner.
▪ But uf he has not yet paid, he cannot compel them to pay the ART. 489. Repairs for preservation may be made at the wil of one
overdue and unpaid taxes to him himself, for after all, the taxes
of the co-owners, but he must, if practicable, first notify his co-
are due, not to him, but to the government.
owners of the necessity for such repairs. Expenses to improve or
embellish the thing shall be decided upon by a majority as
ART. 486. Each co-owner may use the thing owned in common,
determined in Art. 492.
provided he does so in accordance with the purpose for which it is
intended and in such a way as not to injure the interest of the co-
Number of Co-Owners Who Must Consent:
ownership or prevent the other co-owners from using it according
to their rights. The purpose of the co-ownership may be changed ▪ Repairs, ejectment action – ONE
by agreement, express or implied. ▪ Alterations or acts of ownership – ALL
▪ All others, e.g. useful improvements, luxurious embellishments,
administration and better enjoyment – FINANCIAL
RIGHT TO USE PROPERTY OWNED IN COMMON
MAJORITY (not numerical)
ART. 487. Any one of the co-owners may bring an action in
Rules:
ejectment.
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Civil Law Review: Property – Paras Notes 30

▪ If there is unjustified opposition on the part of the other co- ▪ It is a change

owners for not undertaking necessary repairs urged by one, the • Which is more or less permanent;
resulting damage shall be the responsibility of those who made • Which changes the use of thing; and
the unjustifed opposition. • Which prejudices the condition of thing or its
▪ If no notification was made, even though it was practicable, the enjoyment by the others.
rest of the co-owners would still be liable. ▪ It is an act of ownership; may be material or metaphyscical
• HOWEVER, the others may state in their behalf that, (change in use) and gives rise to a real right over the property
had they been notified, they could have helped look owned in common.
for cheaper labor and materials, and that therefore they ▪ These require UNANIMITY on the part of all co-owners unless
should pay less that what is being charged them. a judicial order to the contrary is obtained.
o The owner who neglected the notification • Consent may be given impliedly but only for the
must take care of the difference. purpose of making the alteration legal.
• PRACTICABLE – something that can be done. • Implied consent is not enough to make the other co-
owners liable for the expenses.
ART. 490. Whenever the different stories of a house belong to
different owners, if the titles of ownership do not specify the ILEGAL ALTERATION
terms under which they should contribute to the necessary ▪ One made without the express or implied consent of the other
expenses and there exists no agreement on the subject, the co-owners.
following rules shall be observed: ▪ Effects:
(1) The main and party walls, the roof and the other things used • The co-owner responsible may lose what he has spent.
in common shall be preserved at the expenses of all the • Demolition can be compelled.
owners in proportion to the value of the story belonging to • He would be liable for losses and damages.
each; • Whatever benefits the co-ownership derives will
(2) Each owner shall bear the cost of maintaining the floor of his belong to it.
story; the floor of the entrance, front door, common yard
and sanitary works common to all, shall be maintained at the ART. 492. For the administration and better enjoyment of the
expense of all the owners pro rata; thing owned in common, the resolutions of the majority of the co-
(3) The stairs from the entrance to the first story shall be owners shall be binding.
maintained at the expense of all the owners pro rata, with
the execption of the owner of the ground floor; the stairs There shall be no majority unless the resolution is approved by
from the first to the second story shall be preserved at the the co-owners who represent the controlling interest in the object
expense of all, except the owner of the ground floor and the of the co-ownership.
owner of the first story; and so on successively.
Should there be no majority, or should the resolution of the
PERPENDICULAR CO-OWNERSHIP majority be seriously prejudicial to those interested in the
▪ In this case, different stories belong to different persons but property owned in common, the court, at the instance of an
there is still co-ownership. interested party, shall order such measures as it may deem
▪ Rules apply only if there is no contrary provision in the titles of proper, including the appointment of an administrator.
ownership or agreement.
Whenever a part of the thing belongs exclusively to one of the co-
HORIZONTAL CO-OWNERSHIP owners, and the remained is owned in common, the preceding
▪ This occurs if the various units are in one plane – as when one- provisions shall apply only to the part owned in common.
story units all set on the ground.
ADMINISTRATION AND BETTER ENJOYMENT (ABE)
PERPENDICULAR + HORIZONTAL CO-OWNERSHIP ▪ In both cases, a financial majority is sufficient.
▪ In cases of CONDOMINIUMS. ▪ These are acts those:
▪ CW: CONDO ACT (RA 4726). • That do not involve an alteration;
• Those that may be renewed from time to time;
▪ NOTE: Ground Floor ≠ First Floor. • Those that have transitory effects, i.e., do not bind the
co-owneship for a long time in the future;
CONDO ACT • Those that do not give rise to a real right over the
▪ The buyer of a unit in a condo acquires ownership over the unit thing owned in common;
only after he has paid in full its purchase price. • Those, which even if called an alteration, do not affect
▪ The ownership of a condo unit is the “separate interest”of the the substance or nature of the thing;
owner which makes him automatically a shareholder in the • Those for the common benefit of all the co-owners and
condo. not for only one or some of them.
▪ All incorporators of a condo corporation must be an owner of a
condo unit. Limitations on the Right of the Financial Majority:
▪ Although they can approve resolutions for ABE, still before a
ART. 491. None of the co-owners shall, without the consent of the decision is made, there should be a NOTICE to the minority so
others, make alterations in the thing owned in common, even that they can be heard.
though benefits for all would result thereform. However, if the ▪ The majority would be justified in proceeding only when the
withholding of the consent by one or more of the co-owners is urgency of the case and the difficulty of meeting with them
clearly prejudicial to the common interest, the courts may afford render impracticable the giving of such notice.
adequate relief. ▪ The minority may APPEAL to the court against the decision of
the majority when –
ALTERATIONS • There is no real majority;

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Civil Law Review: Property – Paras Notes 31

• The resolution is seriously prejudicial to the rights of 2. When partition is prohibited by a donor or testator (for a period
an individual co-owner; not exceeding 20 years) from whom the property came.
• When the majority refuses to correct abuse of 3. When partition is prohibited by law.
administration or maladministration; 4. When a physical partition would render the property
• When the majority is made the victim of fraud; unserviceable.
• When an alteration (instead of a mere act of • But in this case, the property may be alloted to one of
administration) is agreed upon. the co-owners, who shall indemnify the others, or it
will be sold, and the proceeds distributed.
ART. 493. Each co-owner shall have the full ownership of his part 5. When the legal nature of the common property does not allow
and the fruits and benefits pertaining thereto, and he may partition.
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are Prohibtion to partition because of an agreement:
involved. But the effect of the alianation or the mortgage, with ▪ The period must not extend more than 10 years.
respect to the co-owners, shall be limited to the portion which ▪ If it exceeds 10 years, the stipulation shall be valud only insofar
may be alloted to him in the division upon the termination of the as the first 10 years are concerned.
co-ownership. ▪ There can be an extension but only after the original period has
expired.
RIGHT WITH RESPECT TO THE IDEAL OR PROPORTIONATE ▪ After the first extension, there can be another, and so on
SHARE indefinitely, as long as for each extension, the period of 10 years
▪ This article is without prejudice to the right of legal redemption is not exceeded.
in the proper case. ▪ A perpetual prohibtion should be considered void as against
▪ If the co-owner sells the entire common property, the sale is public policy.
valid only insofar as his share is concerned, unless the other co- • It should be considered valid for the first 10 years.
owners consented to the sale. ▪ Notwithstanding the agreement, parties may mutually rescind
▪ When a co-owner sells his share to a stranger, it is the stranger the agreement, provided everybody consents.
who should aprticipate in the partition, and not the original co-
owner, since the vendor has ceased to have an interest in the co- Rules in case of succession or inheritance:
ownership. ▪ Legitime may be subject to the prohibtion for 20 years.
▪ A co-owner cannot sell his share to a stranger, if thereby, there ▪ The heirs may nevertheless partition the property should any of
would be a change in the use of the common property. the grounds for the dissolution of a partnership exist.
▪ “Personal right” is not used in its technical term.
▪ In co-ownership, no individual co-owner can claim title to any Prescription in favor of a co-owner agains thte other co-owner:
definite portion of the land or thing owned in common until the ▪ GR; One co-owner cannot acquire the whole property as against
partition thereof. the other co-owners.
▪ A co-owner may not adjudicate to himself any definite portion • This is why the others can demand, as arule, partition
of the land owned in common. at any time.
• This is only true so long as the co-owner concerned
ART. 494. No co-owner shall be obliged to remain in the co- expressly or impliedly recognizes the co-ownership.
onwership. Each co-owner may demand at any time the partition ▪ If, however, certain requirements are complied with, a co-owner
of the thing owned in common, insofar as his share is concerned. can become the exclusive owner of the others’ shares by
prescription.
Nevertheless, an agreement to keep the thing undivided for a • Conditions:
certain period of time, not exceeding ten years, shall be valid. o He must make known to the other co-owners
This term may be extended by a new agreement. that he is definitely repudiating the co-
ownership and that he is claiming complete
A donor or testator may prohibit partition for a period which ownership over the entire property.
shall not exceed twenty years. o The evidence of repudiation and knowledge
on the part of the others must be clear and
Neither shall there by any partition when it is prohibited by law. convincing.
o The other requirements of prescription –
No prescription shall run in favor of a co-owner or co-heir continuous, open, peaceful, public, adverse
against his co-owners or co-heirs so long as he expressly or possession for the period of time required
impliedly recognizes the co-ownership. under the law must be present.
o The period of prescription shall start to run
PARTITION only from such repudiation of co-ownership.
▪ The right to partition NEVER prescribes. − NOTE: Rules on
• A co-owner is a trustee for the other co-owners. CONSTRUCTIVE TRUST.
▪ Object: Real and personal properties. o CT can prescribe.
▪ Purpose: The separation, division, or assignment of things held
in common, among the people to whom they may belong. ART. 495. Notwithstanding the provisions of the preceding
article, the co-owners cannot demand a physical division of the
When Co-Owner May NOT Successfully Demand A Partition: thing owned in common, when to do so would render it
1. If by agreement (for a period not exceeding 10 years), partition unserviceable for the use for which it is intended. But the co-
is prohibited. ownership may be terminated in accordance with Art. 498.
• Nonetheless, term may be extended by a new
agreement, but only after the expiration of the original PARTITION OF AN ESSENTIALLY INDIVISIBLE OBJECT
period.

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Civil Law Review: Property – Paras Notes 32

ART. 496. Partition may be made by agreement between the within the same day without readvertising, even after the hours
parties or by judicial proceedings. Partition shall be governed by of sale have elapsed.
the Rules of Court insofar as they are consistent with this Code. ▪ Partition sales become valid and binding only upon confirmation
by the court, so that before such confirmation, the bidder
Classification of the Various Kinds of Partition: acquires no contractual rught thereunder.
(a) From the viewpoint of cause: ▪ Hence, if the property is resold before the confirmation of the
1. Extrajudicial (conventional) first sale, and the resale is duly confirmed by the court, the
2. Judicial (when court approval is sought or when original purchaser is released from further liability upon his
partition is made by the court) purchase, and cannot be held for the deficiency upon the resale.
(b) From the viewpoint of permanence:
1. Provisional or temporary ART. 497. The creditors or assignees of the co-owners may take
2. Permanent part in the division of the thing owned in common and object to
(c) From the viewpoint of subject matter: its being effected without their concurrence. But they cannot
1. Partition of real property impugn any partition already executed, unless there has been
2. Partition of personal property fraud, or in case it was made notwithstanding a formal opposition
(d) From the viewpoint of forms and solemnities: presented to prevent it, without prejudice to the right of the
1. Partition in a judicial decree debtor or assignor to maintain its validity.
2. Partition duly registered in the Registry of Property
3. Partition in a public instrument RIGHTS OF CREDITORS WITH RESPECT TO PARTITION
4. Partition in a private instrument ▪ “Creditors”
5. Oral partition • All creditors whether preferred or ordinary are
included.
Governing Law: • BUT they must be creditors during the existence of the
1. Civil Code co-ownership, not before or after.
2. Rule 69, RoC ▪ Notioce must be given to creditors and assignees.

ACTION FOR PARTITION: ART. 498. Whenever the thing is essentially indivisible and the
▪ SEE RULE 69, RULES OF COURT. ☺ co-owners cannot agree that it be alloted to one of them who shall
indemnify the others, it shall be sold and its proceeds distributed.
▪ An action for partition cannot be considered as one for the
partition of the property owned in common if any party to the
PARTITION OF AN ESSENTIALLY INDIVISIBLE OBJECT
stui denied the pro-indiviso character of the estate whose
partition is sought and claims exclusive title thereto or to any ▪ Procedure for LEGAL Partition:
1. Give the whole to one co-owner who will be required
part thereof.
to indemnify the rest.
• Actiom is for recovery of property.
2. If not agreed upon, there must be sale (public or
• It is imperative for the court to determine ownership
private).
before a propert adjudication of the partitioned
property can be made. ▪ This also applies to objects essentially divisible.
• CW: Rule 69, Sec. 5.
▪ If plaintiff has the right to demand partition, the court shall order
the partition of the estate among all the parties in interest.
ART. 499. The partition of a thing owned in common shall not
• Parties may, if they are able to agree, make the
prejudice third persons, who shall retain the rights of mortgage,
partition among themselves by proper instruments of
servitude, or any other real rights belonging to them before the
conveyance, and the court shall confirm such. This
division was made. Personal rights pertaining to third persons
shall be registered in the registry of deeds of the place
against the co-ownership shall also remain in force,
in which the property is situated.
notwithstanding the partition.
• If the parties are unable to agree, the court shall
appoint not more than 3 competent and disinterested
PROTECTION OF THIRD PERSON’S RIGHTS
persons as commissioners to make the partition.
A decision directing a partition is interlocutory. ▪ Both real and personal properties are protected.
▪
An ordinary action for partition cannot be converted into a ▪ “Third persons”
▪ • all those who did not in any way participate or
proceeding for the settlement of the estate of a deceased person,
intervene in the partition.
without compliance with the procedure outlined in the RoC (Art.
78-89), esp. the provisions on publication and notice to ▪ Interests of all persons must be considered.
creditors.
ART. 500. Upon partition, there shall be a mutual accounting for
▪ If an EJP is later on approved by a court of competent
benefits received and reimbursements for expenses made.
jurisdiction, the partition renders almost conclusive questions of
Likewise, each co-owner shall pay for damages caused by reason
possession and ownership over the property – such that future
of his negligence or fraud.
judicial determination will generally be precluded.
▪ A partition may be novated.
EFFECTS OF PARTITION:
• All parties must consent.
1. Mutual accounting for benefits received.
▪ Laches applies.
2. Mutual reimbursement for expenses.
▪ BUT the action to declare the nullity of a VOID EJP does not
3. Indemnity for damages in case of negligence or fraud.
prescribe.
4. Reciprocal warranty for:
a. Defects of title (or eviction);
PARTITION SALES
b. Quality (or hidden defects)
▪ If the sale is made by the sheriff for cash, and the bidder to • No warranty if:
whom the property was adjudicated fails to make immediate
1. There is a contrary stipulation; OR
payment, the sheriff may sell the property anew on the same day
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Civil Law Review: Property – Paras Notes 33

2. The eviction is due to the fault of

the co-owner evicted.
5. Each former co-owner is deemed to have had exclusive
possession of the part alloted to him for the entire period during
which the co-possession lasted.
6. Partition confers upon each, the exclusive title over his
respective share.
• NOTE: A co-owner’s possession of his share is co-
possession which is linked to the possession of the
other co-owners.

ART. 501. Every co-owner shall, after partition, be liable for

defects of title and quality of the portion assigned to each of the
other co-owners.

RECIPROCAL WARRANTY

How Co-Ownership is EXTINGUISHED:

1. Judicial partition
2. Extrajudicial partition
3. When by prescription, one co-owner has acquired the whole
property by adverse possession as against all the others, and
repudiating unequivocally the co-ownership of the other
4. When a stranger acquires by prescription the thing owned in
common
5. Merger in one co-owner
6. Loss or destruction
7. Expropriation
• Indemnity will be distributed accordingly.

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