MODULE 6 TORES JR. v.

LAPINID
RIGHTS OF A CO-OWNER AND ITS LIMITATIONS A co-owner has an absolute ownership of his
EXTENT OF THE RIGHT OF A CO-OWNER undivided and pro-indiviso share in the co-owned
A co-owner is an owner not only to the part that property. He has the right to alienate, assign and
pertains to him but also of the entire co-owned property. mortgage it, even to the extent of substituting a third
Being the owner of the entire co-owned property, a co- person in its enjoyment provided that no personal
owner can exercise all the attributes of ownership with rights will be affected. This is evident from the Article
respect to the entire property. In exercising his 493 Civil Code.
attributes of ownership, it may conflict with the rights of
the other co-owners. A co-owner is an owner of the whole and over the
whole he exercises the right of dominion, but he is at
LIMITATIONS the same time the owner of a portion, which is truly
While the co-owner has rights over the entire co-owned abstract. Hence, his co-owners have no right to
property, he may use the co-owned property only: enjoin a co-owner who intends to alienate or
1. For the purpose for which it is intended substitute his abstract portion or substitute a third
2. Without prejudice to the interests of the co- person in its enjoyment.
ownership and
3. Without preventing others from making use A co-owner has an absolute right to share his undivided
thereof according to their own rights share even if the act of selling is an act of alteration.
Purpose for which it is intended ALTERATION
The co-owner should use the co-owned property in It is an act of an alteration because you will be causing
accordance with the agreement he has with his co- the transfer of ownership rights.
owners, if there is any.
Rule of co-ownership regarding an act of
If there is none, that use for which it is ordinarily alteration:
adapted according to its nature (e.g. house only for • Must be concurred in by all co-owners.
living and not to be used as a factory) or use to which it • Otherwise, alteration would be illegal and would
has been previously devoted.
thus be nullified.
Illustration: Qualification to the rule:
There is an existing agreement regarding rental of a
• If the co-owner would sell his undivided (?) share, it
commercial building. If one of the co-owners would use
is an act of alteration.
a portion of the commercial building, he must pay the • If the co-owner would sell his undivided share, that
appropriate rentals.
is allowed by law pursuant to Article 493.
If there is no agreement as to how the property should Legal effects of the sale of an undivided share:
be used, we go by the nature of the property. A co-
When a co-owner effects the sale of his undivided share,
owner must use a co-owned property in accordance with
he is not selling a particular portion of the co-owned
the use for which that property is ordinarily adopted.
property. He is selling only his undivided interest, which
pending partition, is something that is abstract.
If it is an ancestral residential house, the co-owner will
use it only for residential purposes. He cannot insist to
The buyer of that selling co-owner, cannot insist that
use it or a portion thereof for commercial purposes. what is bought is a specific portion because technically
Such insistence would violate the rule pertaining to the
upon entering into a contract of lease [sale] with that
limitations on the exercise of his right of ownership.
co-owner, what is bought is his interest in the co-
ownership.
RIGHT TO SELL UNDIVIDED SHARE

Art. 493. Each co-owner shall have the full Therefore, the buyer needs to await the result of the
ownership of his part and of the fruits and benefits partition before he can claim a specific portion in that
pertaining thereto, and he may therefore alienate, co-owned property.
assign or mortgage it, and even substitute another
person in its enjoyment, except when personal rights Validity of the sale by a co-owner:
are involved. But the effect of the alienation or the The sale is valid even if technically the subject matter is
mortgage, with respect to the co-owners, shall be his interest in the co-ownership and not a specific
limited to the portion, which may be allotted to him portion of the property.
in the division upon the termination of the co-
ownership. Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio
 
RIGHT TO BRING SUIT IN BEHALF OF THE OTHER property. The matter about impleading an indispensable
CO-OWNERS party becomes merely a procedural matter.
Qualification to the rule allowing filing of suit by
CARANDANG v. HEIRS OF DE GUZMAN
one co-owner without participation of other co-
In this connection, Article 1811 of the Civil
owners
Code provides that:
ADLAWAN v. ADLAWAN
"[a] partner is a co-owner with the other partners of
For a case to prosper, even if filed only by one co-
specific partnership property."
owner, that suing co-owner must recognize the
existence of the co-ownership. In other words, on
Taken with the presumption of the conjugal nature of
the face of the allegations of the complaint, it must
the funds used to finance the four checks used to
be clear and apparent that he is bringing it for and in
pay for petitioners' stock subscriptions, and with the
behalf of the other co-owners.
presumption that the credits themselves are part of
conjugal funds, Article 1811 makes Quirino and
If on the face of the complaint the suing co-owner
Milagros de Guzman co-owners of the alleged credit.
disowns the existence of the co-ownership, he cannot
later on backtrack and say that he is bringing it for
Being co-owners of the alleged credit, Quirino and
and behalf of the co-owners for the purpose of
Milagros de Guzman may separately bring an action
saving his case from eventual dismissal.
for the recovery thereof. In the fairly recent cases
of Baloloy v. Hular and Adlawan v. Adlawan, we
held that, in a co-ownership, co-owners may bring RIGHT TO BRING SUIT
actions for the recovery of co-owned property RESUENA v. CA
without the necessity of joining all the other co- Article 487 of the Civil Code is a categorical and an
owners as co-plaintiffs because the suit is presumed unqualified authority in favor of respondent to evict
to have been filed for the benefit of his co-owners. petitioners from the portions of Lot No. 2587. This
provision is a departure from Palarca v.
Baguisi, which held that an action for ejectment
General Rule:
must be brought by all the co-owners. Thus, a co-
ART. 487. Any one of the co-owners may bring an owner may bring an action to exercise and protect
action in ejectment the rights of all. When the action is brought by one
co-owner for the benefit of all, a favorable decision
will benefit them; but an adverse decision cannot
Rule in Remedial Law qualified by Civil Code prejudice their rights.
There is a rule in procedural law or remedial law that for
a case to prosper, all indispensable parties must be Respondent's action for ejectment against petitioners
impleaded. is deemed to be instituted for the benefit of all co-
owners of the property since petitioners were not
Applying this remedial law principle, technically all the able to prove that they are authorized to occupy the
co-owners are indispensable parties and therefore all of same.
them should be impleaded in the case.
The General Rule under Art. 487 was applied in this case
If an indispensable party is not impleaded, the court even in the light of the objection that other co-owners
would have no jurisdiction to proceed and any judgment should have been impleaded because the suing co-
that it may render without the presence of an owner recognized the existence of the co-ownership and
indispensable party would be void. such recognition was clearly inferred based on the
allegations in the complaint.
However, this is qualified by the provision of the Civil
Code in regard to the right of a co-owner in bringing a There must be recognition of the co-ownership on
suit for and in behalf of the co-owners. This is allowed the part of the suing co-owner
by the Civil Code.
ADLAWAN v. ADLAWAN
Petitioner cannot validly maintain the instant action considering
Civil Code is very clear in stating that any one of the co- that he does not recognize the co-ownership flowing from
owners may bring an action in ejectment. With the use succession to the property of his father. There is no merit in
of the word “ejectment” it refers to all real actions to petitioner's claim that he has the legal personality to file the
present unlawful detainer suit because it would benefit not only
recover ownership and possession of a co-owned him but also his alleged co-owners. However, petitioner forgets
that he filed the instant case to acquire possession of the property
and to recover damages. If granted, he alone will gain possession
Property
of the lot |and
Atty. Gravador
benefit from the| proceeds
A.Y. 2020 – 2021
of the award |ofAGregorio
damages
to the exclusion of the heirs of Graciana.
 
RULES ON WHO DECIDES THE FOLLOWING: OLD RULE
1. Acts of Preservation Co-owner may renounce his whole interest, and pertains
2. Acts of Administration to exemption in being required to contribute to future
3. Acts of Alteration expenses.

These are matters that normally confront the co-owners CRITICISM TO THE NEW RULE
while the co-ownership exists. When a co-owner from whom a contribution is asked
renounces, will that exempt him from claims that may be
EXPENSES OF PRESERVATION ETC. interposed by creditors?
This is more of a responsibility of a co-owner in regard Example: Renunciation of a portion of interest in
to expenses of preservation. co-ownership (Tolentino)
a. This is dacion en pago, subrogation, etc.
Expenses of preservation are such as would be b. Since this renunciation pertains to a debt
indispensable for the continued existence of the thing. already incurred, consent of the other co-owners
is required such as on the following matters:
ART. 488. Each co-owner shall have a right to valuation of the share
compel the other co-owners to contribute to the c. Effect on creditors (third party): Can the co-
expenses of preservation of the thing or right owned owner exempt himself to pay his share of the
in common and to the taxes. Any one of the latter expenses to the creditor simply by renouncing
may exempt himself from this obligation by an equivalent portion of his share in the co-
renouncing so much of his undivided interest as may ownership?
be equivalent to his share of the expenses and taxes.
No such waiver shall be made if it is prejudicial to the No. This cannot be done by a co-owner or cannot put
co-ownership this up as a defense because this constitutes novation by
change of debtor since he will be exempting himself
from liability. Thus, the debtors now would be the
Renunciation remaining co owners. This set-up requires consent of
Only leeway to a co-owner here is that if he does not creditor to be valid pursuant to the law on Obligations
want to contribute, he may renounce so much of his and Contracts.
undivided interest as may be equivalent to his share of
the expenses and taxes. Take note of these observations.

Renunciation must be voluntary ACT OF ADMINISTRATION

This matter regarding renunciation of interest in co- • Refers to the enjoyment of the thing and are of a
ownership cannot be compelled. This is voluntary on the transitory character.
part of the co-owner from whom the demand for • Decisions pertaining to improvement or
contribution is made. embellishment of the thing owned in common for
the purpose of better enjoyment.
Limitation:
Cannot execute this waiver if prejudicial to the co- Rules:
ownership. • Can be decided by majority of the co-owners and
the majority is qualified to mean as financial
Illustration majority
“Any one of the latter may exempt himself from this • Thus, this is majority in regard to interest, not just
obligation by renouncing so much of his undivided mere numerical majority.
interest as may be equivalent to his share of the
expenses and taxes.” ACTS OF ALTERATION
• A, B, and C owners of property worth 3M. • Act by virtue of which a co-owner, in opposition to
• 1M respective interests. the express agreement, if there is any, or, in default
• Expenses worth 500,000. thereof, to the tacit agreement of all the co-owners,
and violating their will, changes the thing from that
A, B, or C may renounce up to 500,000 of the share of state in which the others believe it should remain or
expenses. withdraws it from the use to which they wish it to be
intended.
Note: he cannot be required to renounce, option is upon • Affects the substance of the thing
him.

Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio

 
Rules: 1. When lease is recorded with the Registry of
• If the act would qualify as an act of alteration, it Property, it becomes alteration (it is not a mere act
must be concurred by or consented to expressly or of administration)
tacitly because this act is akin to an act of “strict”
ownership. Art. 1878 (8). To lease any real property to another
• If alteration is unauthorized, act is illegal. Erring co- person for more than one year
owner may be compelled to undo what has been
done. 2. Lease of immovable property: mere majority cannot
• Erring co-owner shall likewise be liable for losses or lease real property for more than one year.
damages
EFFECT OF AN ILLEGAL ALTERATION
Examples: 1. Co-owner will lose what he has spent
1. Sale, donation, or mortgage of the entire 2. Demolition can be compelled
property 3. Liability for loss and damages
2. Sale, donation or mortgage of a part of the 4. Whatever benefits belong to the co-ownership
property but with definite boundaries
3. Voluntary easement If there is an alteration not concurred in or consented to
4. Lease of real property by all co-owners, even if benefits redound to the co-
5. Construction of a house on a lot owned in ownership, the co-owner cannot ask for reimbursement
common
6. Contracts of long duration Principles:
1. Mere tolerance on the part of the co-owners
Sale, donation or mortgage of the entire property cannot legalize the change in the use of a thing
Qualification: from that intended by the parties
Must be the entire property because sale of a part of a 2. No prejudice to co-ownership: if co-owners
co-owned property is valid even if the sale is an act of agreed to lease, co-owners cannot use without
alteration paying rent

Voluntary Easement An act of alteration includes alteration of the substance

Rule: of the thing. Thus, when one co-owner alters the use of
This is an agreement to grant a right of way in favor of a thing from that intended by the parties, if there is no
neighboring lots. If the property traversed by the right of immediate objection from the co-owners, it should not
way is co-owned, it cannot be decided by one co-owner be outrightly interpreted to mean that there was consent
since this is an act of alteration. on the part of the co-owners. Take note of Principle 1.

Lease of Real Property CASES ON RIGHT OF A CO-OWNER (ALTERATION)

Must be qualified because leases of short duration (less
than one year) and those not required by the parties to Giving consent to a third person to possess a co-
be recorded in the Registry of Property are mere acts owned property is an act of alteration
of administration
CRUZ v. CATAPANG
If the duration would exceed 1 year or if less than 1 year
As to the issue of whether or not the consent of one
but recorded in the Registry of Property then this
co-owner will warrant the dismissal of a forcible entry
becomes an act of alteration, which would require the
case filed by another co-owner against the person
unanimous consent of all co owners
who was given the consent to construct a house on
the co-owned property, we have held that a co-
Construction of a house on a lot owned in
owner cannot devote common property to his or her
common
exclusive use to the prejudice of the co-ownership. In
If you consented to this and such consent was given to
our view, a co-owner cannot give valid consent to
a stranger, this is an act of alteration.
another to build a house on the co-owned property,
which is an act tantamount to devoting the property
LEASE OF IMMOVABLE PROPERTY
to his or her exclusive use.

Art. 1638. Every lease of real estate may be

recorded in the Registry of Property. Unless a lease is
recorded, it shall not be binding upon third persons.

Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio

 
This involved a co-owner who gave consent to a third While this was a co-owned property, the certificate of
person to possess a co-owned property. When this was title only indicated the name of the selling co-owner. A
discovered by the co-owners, they filed a case for buyer who relies on the face of the certificate of title
ejectment against this third person. The third person put indicating only the name of the widow who is
up as a defense that his entry into the premises was not supposedly only a co-owner and the buyer relied in good
attributable to any force, intimidation, strategy, stealth faith on what appears on the certificate of title, a
that are the grounds for which one would file a case for purchaser acquires a valid title of the land even as
forcible entry. against the heirs of the deceased spouse. The buyer’s
title is valid not only to the share pertaining to the
The SC ruled there was a valid cause of action for widow, but the entire co-owned property [including
forcible entry, even in spite of the existence of the shares of the other co-owners who are heirs of the
consent given by that one co-owner. This act of giving deceased spouse].
consent to possess a co-owned property, which consent
is given only by one of the co-owners is an act of Sale of Entire Portion
alteration. Thus, this is not valid because an act of
alteration must be agreed and concurred in unanimously SEGURA v. SEGURA
by all the other co-owners. Thus, no valid defense for When Amojido secured the registration of the land in
the suit for forcible entry and the SC characterized this his name following the deed of sale executed in his
as a form of entry by strategy. favor by the parties to the extrajudicial partition, his
certificate of title carried an express reservation of
Unauthorized Sale v. Purchaser in Good Faith whatever rights might pertain to other heirs. This
annotation constituted an acknowledgment of the
SPS. CRUZ v. LEIS possibility that a portion of the land might not belong
It is conceded that, as a rule, a co-owner such as to him and the commitment that he would be holding
Gertrudes could only dispose of her share in the such part as impliedly conveyed to him in trust by
property owned in common. Unfortunately for private and for its true owners. However, when Amojido
respondents, however, the property was registered in himself sold the land to Mirope Mascareñas vda. De
TCT No. 43100 solely in the name of “Gertrudes Elison on March 13, 1953, the transfer certificate of
Isidto, widow.” Where a parcel of land, forming part title issued in her name no longer carried the said
of the undistributed properties of the dissolved encumbrance. By deletion of this annotation, Mirope,
conjugal partnership of gains is sold by a widow to a as the new transferee, repudiated as of the date of
purchaser who merely relied on the face of the registration, the claim of the other heirs to their
certificate of title thereto, issued solely in the name shares in the property.
of the widow, the purchaser acquires a valid title to
the land even as against the heirs of the deceased This is an exception to the rule that the sale of an entire
spouse. The rationale for this rule is that “a person co-owned property is not valid if the one selling is only
dealing with registered land is not required to go one co-owner or the sale is not done by all co-owners.
behind the register to deal with the condition of the
property.” SC upheld the right of an innocent purchaser who
merely relied on the face of the title as against the other
co-owners who did not consent to the sale.
This involved an unauthorized sale of the entire property
by one co-owner.
RIGHT OVER THE IDEAL SHARE
General Rule:
Art. 493. Each co-owner shall have the full
(Unauthorized Sale)
ownership of his part and of the fruits and benefits
[While a co-owner can validly sell is undivided sale]
pertaining thereto, and he may therefore alienate,
when a sale made by one co-owner pertains to the
assign or mortgage it, and even substitute another
entire co-owned property, it is invalid because it exceeds
person in its enjoyment, except when personal rights
the portion pertaining to the selling co-owner. It is valid
are involved. But the effect of the alienation or the
only insofar as his interest is concerned.
mortgage, with respect to the co-owners, shall be
limited to the portion, which may be allotted to him
Exception:
in the division upon the termination of the co-
(Purchaser in Good faith)
ownership.
Here, the SC validated the sale of the entire co-owned
property since there is a peculiarity ITCAB. Sale by a co-owner of his undivided share/interest is a
valid transaction.

Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio

 
EFFECT OF SALE BY A CO-OWNER A co-owner does not lose his right to the part ownership
of a co-owned property when a share is mortgaged by
PAULMITAN v. CA another co-owner if there is no knowledge much less
From the foregoing, it may be deduced that since a consent on his part.
co-owner is entitled to sell his undivided share, a sale
of the entire property by one co-owner without the Trust relationship is established
consent of the other co-owners is not null and void
[with respect to the rights of the selling co-owner. NUFABLE v. NUFABLE
When the subject property was mortgaged by Angel
However, only the rights of the co-owner-seller are Custodio, he had no right to mortgage the entire
transferred, thereby making the buyer a co-owner of property but only with respect to his ¼ pro indiviso
the property. share as the property was subject to the successional
rights of the other heirs of the late Esdras. In case of
It is valid with respect to rights of the selling co-owner foreclosure, a sale would result in the transmission of
but it is void with respect to the rights of the non- title to the buyer, which is feasible only if the seller can
consenting co-owners. be in a position to convey ownership of the things sold.
And in one case, it was held that a foreclosure would be
Right of a co-owner whose interest in the co- ineffective, unless the mortgagor has title to the
property to be foreclosed. Therefore, as regards the
ownership was sold without authority
remaining ¾ pro indiviso share, the same was held in
SANCHEZ v. CA trust for the party rightfully entitled thereto, who are
Although assigned an aliquot but abstract part of the the private respondents herein. Pursuant to Article 1451
of the Civil Code, when land passes by succession to
property, the metes and bounds of petitioner’s lot
any person and he causes the legal title to be put in the
has not been designated. As she was not a party to
name of another, a trust is established by implication of
the Deed of Absolute Sale voluntarily entered into by
law for the benefit of the true owner. Likewise; under
the other co-owners, her right to 1/6 of the property
1456 of the same Code, if property is acquired through
must be respected. Partition needs to be effected to mistake or fraud, the person obtaining it is, by force of
protect her right to her definite share and determine law, considered a trustee of an implied trust for the
the boundaries of her property. Such partition must benefit of the person from whom the property comes.
be done without prejudice to the rights of private
When a sale or dispossession is made by one co-owner
respondent Virginia Teria as buyer of the 5/6 portion
without the consent of the others, the shares pertaining
of the lot under dispute.
to those who did not consent are technically held in trust
by this selling co-owner. There can be no valid transfer
with respect to those shares of the non-consenting co-
If you did not consent to the sale, your share is not owners.
affected in the sale made by your other co-owners.
To sum it up, an act of alteration like sale or mortgage
EFFECT OF AN UNAUTHORIZED ACT OF etc. that are denominated as acts of strict ownership
ALTERATION can only be effected legally if there is consent by
all co-owners. Absent the concurrence or unanimous
NUFABLE v. NUFABLE
consent of all co-owners, such act of alteration is invalid.
Well-entrenched is the rule that a co-owner can only
alienate his pro indiviso share in the co-owned property.
SALE OF A CO-OWNED PROPERTY (CASES)
Article 493 of the CC spells out the rights of co-owners
over a co-owned property. Pursuant to said Article, a DEL BANCO v. IAC
co-owner shall have full ownership of his part and of the A co-owner cannot, without the conformity of the other
fruits and benefits pertaining thereto. He has the right co-owners or a judicial decree of partition issued
to alienate, assign of mortgage it and even substitute pursuant to the provision of Rule 69 of the Rules of
another person in its enjoyment. As a mere part owner, Court, adjudicate to himself in fee simple a determinate
he cannot alienate the shares of the other co-owners. portion of the lot owned in common, as his share
The prohibition is premised on the elementary rule that therein, to the exclusion of other co-owners. It is a basic
“no one can give what he does not have.” Moreover, principle in the law of co-ownership both under the
respondents stipulated that they were not aware of the present Civil Code as in the Code of 1889 that no
mortgage by petitioners of the subject property. This individual co-owner can claim any definite portion
being the case, a co-owner does not lose his part thereof. It is therefore of no moment that some of the
ownership of a co-owned property when his share is co-owners have succeeded in securing cadastral titles in
mortgaged by another co-owner without the former’s their names to some portions of the Island occupied by
knowledge and consent as in the case at bar. It has them.
likewise been ruled that the mortgage of the inherited
Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio
property is not binding against co-heirs who never
  benefited.
This is an affirmation of the principle that pending Effect of a sale made by a co-owner
partition, what the co-owner has is only abstract or ideal
share. Some authors would refer to it as the spiritual SPS. DEL CAMPO v. CA
share pertaining to the co-owner. That being the case, Based on the principle that “no one can give what he
does not have,” Salome, Consorcia and Alfredo could
no individual co-owner can claim any definite portion of
not legally sell the shares pertaining to Soledad since a
the co-owned property.
co-owner cannot alienate more than his share in the co-
ownership. we have ruled many times that even if a co-
Sale of a specific portion prior to partition is an owner sells the whole property as his, the sale will
act of alteration and must be consented by all co- affect only his own share but not those of the other co-
owners owners who did not consent to the sale. Since a co-
CABRERA v. YSAAC owner is entitled to sell his undivided share, a sale of
The undivided interest of a co-owner is also referred to the entire property by one co-owner will only transfer
as “the ideal or abstract quota” or “proportionate the rights of said co-owner to the buyer, thereby
share.” OTOH, the definite portion of the land refers to making the buyer a co-owner of the property.
If the co-owner sells the property as his, the sale is not
specific metes and bounds of a co-owned property. To
necessarily invalid but its effect is only with regard to his share
illustrate, if a ten-hectare property is owned equally by
and would not adversely effect the other co-owners who did
10 co-owners, the undivided interest of a co-owner here
not consent to the sale.
is one hectare. The definite portion of that interest is
usually determined during judicial or extrajudicial Sale of non-consenting co-owner will not be
partition. After partition, a definite portion of the
affected
property held in common is allocated to a specific co-
owner. The co-ownership is dissolved and, in effect, TORRES, JR. v. LAPINID
each of the former co-owners is free to exercise Be that as it may, the compromise agreement failed to
autonomously the rights attached to his or her defeat the already accrued right of ownership of Lapinid
ownership over the definite portion of the land. It is over the share sold by Jesus. As early as 9 November
crucial that the co-owners agree to which portion of the 1997, Lapinid already became a co-owner of the
land goes to whom. property and thus, vested with all the rights enjoyed by
the other co-owners. The judgment based on the
Hence, prior to partition, a sale of a definite portion of compromise agreement, which is to have the covered
common property requires the consent of all co-owners properties sold, is valid and effectual provided as it does
because it operates to partition the land with respect to not affect the proportionate share of the non-consenting
the co-owner selling his or her share. The co-owner or party. Accordingly, when the compromise agreement
seller is already marking which portion should redound was executed without Lapinid’s consent, said agreement
to his or her autonomous ownership upon future could not have affected his ideal and undivided share.
partition. Petitioners cannot sell Lapinid’s share absent his
consent. Nemo dat quod non habet—“no one can give
If there is no partition of the co-owned property, any what he does not have.”
attempted sale by a co-owner of a specific portion is an
With respect to the shares pertaining to those who did not
act of alteration. For it to be a valid sale of a specific consent, such shares would not be adversely affected.
portion, the other co-owners must consent. Otherwise,
the sale would only be deemed as sale of a pro-indiviso REMEDY WHEN A CO-OWNER WITHHOLDS HIS
(undivided) share. The sale is valid only that it cannot CONSENT TO THE SALE OF THE ENTIRE
refer to a specific portion if there is no partition yet. Or, PROPERTY
if the pointing out of that specific portion is not
consented to by the other co-owners. ARAMBULO v. NOLASCO
That a sale constitutes an alteration as mentioned in Article
491 is an established jurisprudence. It is settled that
Valid Sale of the Entire Portion because there was
alterations include any act of strict dominion or ownership
de facto or factual partition and any encumbrance or disposition has been held
PAMPLONA v. MORETO implicitly to be an act of alteration. Alienation of the thing
The title may be pro-indiviso or inchoate but the by sale of the property is an act of strict dominion.
However, the ruling that alienation is alteration does not
moment the co-owner as vendor pointed out its location
mean that a sale commonly of commonly owned real
and even indicated the boundaries over which the
property is covered by the second paragraph of Article 491,
fences were to be erected without object, protest or
such that if a co-owner withholds consent to the sale, the
complaint by the other co-owners, on the contrary they courts, upon a showing of a clear prejudice to the common
acquiesced and tolerated such alienation, occupation interest, may, mas adequate relief, order the grant of the
and possession. We rule that a factual partition or withheld consent. Such is the conclusion drawn by the trial
termination of the co-ownership, although partial, was court, and hinted at, if not relied upon, by the appellate
created, and barred not only the vendor but also his court.
heirs, private respondents herein from asserting as Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio
against the vendees petitioners any right or title in
  derogation of the deed of sale by vendor Moreto.
Selling of the entire co-owned property as repeatedly Take note of the underlined text. This is the correct
mentioned is an act of alteration. Being such, this must remedy that should have been resorted to rather than
be consented to by all co-owners. asking the court to compel the non-consenting co-owner
to give his consent.
The situation in this case was that almost all co-owners
agreed to sell the co-owned property except for one.
Considering that it is a sale of the entire co-owned
property, the sale would not be valid if there is only
even one who would object to the sale.

The consenting co-owners sought the relief of

compelling the other co-owner to give his consent.

SC said you cannot compel a co-owner to give his

consent and you cannot justify this relief by saying that
such withholding of consent is prejudicial to the co-
ownership.

Remedies provided for by the SC ITAB:

• Partition by sale
o The right to demand partition is a right Mortgage by a Spouse
pertaining to a co-owner. In cases where it
would be impracticable to make an actual HOMEOWNERS SAVINGS & LOAN BANK v. DAILO
division of a co-owned property such as when The basic and established fact is that during his lifetime,
the property is so small in area, the remedy to without the knowledge and consent of his wife, Marcelino
Dailo, Jr. constituted a real estate mortgage on the subject
be resorted to is:
property, which formed part of their conjugal partnership.
• Partition by selling the entire co-owned property and By express provision of Article 124 of the Family
there would be a division of the proceeds of the Code, in the absence of (court) authority or written
sale. consent of the other spouse, any disposition or
encumbrance of the conjugal property shall be void.
Take note of the suggested remedies of the SC here.
The aforequoted provision does not qualify with respect to
ARAMBULO v. NOLASCO the share of the spouse who makes the disposition or
Petitioners who project themselves as encumbrance in the same manner that the rule on co-
prejudiced co-owners may bring a suit for ownership under Article 493 of the Civil Code does. Where
partition, which is one of the modes of the law does not distinguish, courts should not distinguish.
extinguishing co-ownership. Article 494 of the Civil Thus, both the trial court and the appellate court are
Code provides that no co-owner shall be obliged to correct in declaring the nullity of the real estate mortgage
remain in the co-ownership, and that each co-owner on the subject property for lack of respondent's consent.
may demand at any time partition of the thing owned
in common insofar as his share is concerned. The husband and wife relationship is peculiar. This is not
governed by rules on co-ownership.
Corollary to this rule, Article 498 of the Civil Code
states that whenever the thing is essentially In co-ownership, if you are co-owner, you are owner of
indivisible and the co-owners cannot agree that it be the part as well as the whole. Being the owner of the
allotted to one of them who shall indemnify the part, you can sell, lease, mortgage etc., your undivided
others, it shall be sold and its proceeds accordingly share
distributed. This is resorted to (a) when the right to
partition the property is invoked by any of the co- With respect to spouses, they are not technically co-
owners but because of the nature of the property, it owners as would warrant the execution by one spouse
cannot be subdivided or its subdivision would without the consent of the other of any contracts as
prejudice the interests of the co-owners, and (b) the ITCAB.
co-owners are not in agreement as to who among
them shall be allotted or assigned the entire property This was a case involving a mortgage made by one
upon proper reimbursement of the co-owners. This is spouse without the consent of the other. This matter is
the result obviously aimed at by petitioners at the primarily governed by the Family Code rather than rules
outset. As already shown, this cannot be done while of co-ownership.
the co-ownership exists.
Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio
 
In your family code, no act of encumbrance, disposition
can be validly made by one spouse without the consent
of the other spouse. In fact, any disposition or
encumbrance, which would affect the conjugal property,
shall be deemed void.

Property | Atty. Gravador | A.Y. 2020 – 2021 | AGregorio