PROPERTY Property is an economic concept, meaning a mass of things useful to human activity

and are necessary to life, for which reason they may be organized and distributed in
one way or another, but, always for the good of man. In order that a thing may be
DEFINITION considered as property, it must have a) utility, b) substantivity, i.e., an autonomous or
separate existence and c) appropriability or susceptible to appropriation.

a) By Nature:
• Land, buildings, roads and constructions of all kinds adhered to the soil (par. 1);
• Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either
running or stagnant (par. 8);

CLASSIFICATION b) By Incorporation: Art. 415 (pars. 2, 3, & 7)

• Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an
UNDER THE CIVIL immovable (par. 2);
CODE • Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated
therefrom without breaking the material or deterioration of the object (par. 3);
• Fertilizer actually used on a piece of land (par. 7);

IMMOVABLE c) By Destination: Art. 415 (pars. 4, 5, 6 & 9)

• Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands
OR REAL by the owner of the immovable in such a manner that it reveals the intention to attach them
PROPERTY permanently to the tenements (par. 4);
• Machinery, receptacles, instruments or implements intended by the owner of the tenement for an
ART. 415 industry or works which may be carried on in a building or on a piece of land, and which tend directly
to meet the needs of the said industry or works (par. 5);
• Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case
their owner has placed them or preserves them with the intention to have them permanently attached
to the land, and forming a permanent part of it; the animals in these places are included (par. 6);
• Docks and structures which, though floating, are intended by their nature and object to remain at a
fixed place on a river, lake, or coast (par. 9);

d) By Analogy: Art. 415 (par. 10)

• Contracts for public works, and servitudes and other real rights over immovable property (par. 10).

1
CLASSIFICATION UNDER THE CIVIL CODE

MOVABLE OR PERSONAL PROPERTY ARTS. 416-417

Art. 416. The following things are deemed to be personal property:

(1)Those movables susceptible of appropriation which are not
included in the preceding article;
(2)Real property which by any special provision of law is considered
as personal property;
(3)Forces of nature which are brought under control by science; and
(4)In general, all things which can be transported from place to place
without impairment of the real property to which they are fixed. (335a)

Art. 417. The following are also considered as personal property:

(1)Obligations and action which have for their object movable or
demandables or sums; and
(2)Shares of stocks of agriculture, commercial and industrial entities,
although they may have real estate

2
CLASIFICATION UNDER THE CIVIL CODE

IMPORTANCE AND SIGNIFICANCE

FROM POINT OF VIEW OF

•Criminal Law
•Form of contracts involving movables or immovables
•Acquisitive presricption
•Venue
•Taxation
•Preference of credits
•Actions for recovery of possession/ownership
•Double sale under Art. 1544, CC

3
PROPERTY
CLASSIFICATION OF
PROPERTY AS TO
WHO OWNS IT

RES NULLIUS Belongs to no one

PUBLIC PROPERTY OF STATE (ARTS. 420 – 422)

DOMINION • For Public Use
(cf. Patrimonial) e.g. roads, canals, rivers, torrents, ports and bridges (State constructed),
ARTS. 419, 420 banks, shores, roadsteads, etc.
– 422, 424 • For Public Service
• For Development of National Wealth

CLASSIFICATION OF LANDS UNDER THE 1987 CONSTITUTION

• Public Agricultural Land may be further classified by law according to uses to which
they may be devoted. Alienable lands are limited to agricultural lands. Private
corporations or may hold alienable lands by lease only. Period: 25 years; renewal for
another 25 years; not to exceed 1,000 Ha: Filipino citizens may lease not more than
500 Ha, or acquire not more than 12 Ha thereof by purchase, homestead, or grant
(Sec. 3, Art. XII, 1987 Constitution)
• Mineral Land
• Forest or Timber Land
• National Parks

PROPERTY OF MUNICIPAL CORPORATIONS (ART. 424 par. 1)

• For public use, e.g. provincial roads, City & Municipaliy, Streets, fountains,
promenades including public works for public service
• Under Local Government Law
4
PROPERTY
CLASSIFICATION OF
PROPERTY AS TO
WHO OWNS IT

PRIVATE • Patrimonial Property of State (Art. 424) – all other property of

PROPERTY
State which are not of public dominion
• Patrimonial Property of Municipal Corporations (Art. 424 par. 2)
• Private Property of Private Persons (Art. 425 par. 2)
EFFECT AND
SIGNIFICANCE
OF
CLASSIFICATION
OF PROPERTY
• Property is outside the commerce of man.
AS PROPERTY • Property cannot be subject of acquisitive
OF PUBLIC prescription.
DOMINION
• Property cannot be attached nor levied upon
in execution.
• Property cannot be burdened with a voluntary
easement.

5
PROPERTY
OTHER
CLASSIFICATION
• CORPOREAL – They can be determined by the senses (RES QUI TANGI
POSSUNT). They include rights of ownership of corporeal things.
BY THEIR
PHYSICAL
• INCORPOREAL - They are things having abstract (ideal) existence,
EXISTENCE
created by man and representing value. They include:
a) Rights over incorporeal things
b) Credits
c) Real rights, other than ownership over corporeal things

BY THEIR • PRINCIPAL
AUTONOMY OR • ACCESSORY – Destined to complete, enhance or ornament another property.
DEPENDENCE

BY THEIR • CONSUMABLE – Art. 418 par. 1

SUBSISTENCE • NON-CONSUMABLE – Art. 418
AFTER USE • DETERIORABLE OR NON-DETERIORABLE

BY THEIR • DIVISIBLE
SUSCEPTIBILITY • INDIVISIBLE
TO DIVISION

6
PROPERTY
OTHER
CLASSIFICATION

BY REASON OF • GENERIC
DESIGNATION • SPECIFIC

BY THEIR
EXISTENCE IN • PRESENT
POINT OF TIME • FUTURE

CONTENTS AND • SINGULAR: a) Simple b) Compound

CONSTITUTION • UNIVERSAL

SUSCEPTIBILITY • APPROPRIABLE: a) Already appropriated b) Not yet

TO appropriated
APPROPRATION • NON-APPROPRIABLE

SUSCEPTIBILITY • WITHIN THE COMMERCE OF MAN

TO COMMERCE • OUTSIDE THE COMMERCE OF MAN

7
 Prof. Eduardo A. Labitag

REAL RIGHTS AND PERSONAL RIGHTS DISTINGUISHED

REAL RIGHTS (JUS IN RE) PERSONAL RIGHTS (JUS IN

PERSONAM)

A right that confers upon its holder an • It is the power of one person to demand of
autonomous power to derive directly another as a definite passive subject the
DEFINITION from a thing (property) certain economic fulfillment of a prestation to give; to do or not to
advantages independently of whoever do.
should be the possessor of the thing. • It is also called a RIGHT OF OBLIGATION

• Holder of right must enforce his rights

• The holder must be able to act through another’s action
DIRECTLY upon the thing by himself. • Only one obligated as an obligor, and his
There is no definite passive subject heirs, executor’s and assigns can be required
CHARACTERISTICS
to perform the obligation (subject to certain
• The right is enforceable against any exceptions., e.g. acción pauliana; acción
possessor of the thing, or against the subrogatoria; direct actions), save purely
whole world personal obligation, which does not survive
debtor’s death

• Exercised directly over a thing • Exercised through another person (obligor)

• Has a specific object or item of • Affects all present and future property of
property debtor
-- corporeal or incorporeal • Not enforceable against a transferee without
DISTINCTION • Follows its object in the hands of any notice
possessor • Not so limited (may be enforced versus all
• limited by value of object or its properties of debtor not exempt from execution
productivity • Extinguished by payment/performance or
• extinguished by the loss or destruction other modes of extinguishing obligations
of object/thing (extinguished by loss of specific thing or death
of obligor in purely personal obligations.
8
 CLASSES
Real Rights Personal Rights
(Jus in re) (Jus in personam)
1. OF FULL CONTROL
a) Ownership
b) Real rights of possession (Jus possessionis)

2. OF ENJOYMENT
a) Usufruct
b) Real or Praedial Servitudes (easements)
c) Recorded lease

3. OF GUARANTY

a) Mortgage, chattel or real estate

b) Pledge
c) Antichresis
d) Retention

4. OF ACQUISITION
a) Preemption
b) Redemption

No. of real rights – not limited in number

Example: stewardship rights under 1987 Constitution; CADC;
CADT
9
 BUNDLE OF RIGHTS IN:
OWNERSHIP REAL RIGHTS OF USUFRUCT EASEMENT/REAL RECORD LEASE
POSSESSION (Rights of Usufructuary) OR PRAEDIAL (Rights of Lease)
(De Jure) SERVITUDE
a) Jus utendi If possession is in a) Jus utendi a) Limited res a) Jus utendi
b) Jus fruendi the concept of b) Jus fruendi utendi (limited b) Jus possidendi
c) Jus abutendi owner and in good c) Jus possidendi by nature of c) Sometimes, the
faith all the bundle easement) jus fruendi, esp.
d) Jus disponendi of rights in d) jus abutendi & jus dispodendi
e) Jus vindicandi is given to usufructuary only in civil law lease
ownership are of rural land
f) Jus possidendi present; he is in abnormal or irregular
considered as the usufruct. (Arts. 1680-
owner, except a e) Jus dispodendi of property 1685, C.C.)
true owner can held in usufruct is not given
recover ownership to usufructuary in a normal
thru accion usufruct, however, during the
reivindicatoria period of the usufruct the
naked owner may dispose of
property, but always subject
to the right to usufruct of
retained by naked owner. In
abnoraml usufruct, this jus
abutendi and jus dispodendi
are given to the usufructuary,
with the obligation of
returning the appraised
value of property received in
usufruct or another thing of
same kind quality or quantity

10
 BUNDLE OF RIGHTS IN:

MORTGAGE PLEDGE RIGHT OF RETENTION ANTICHRESIS

-None of bundle of rights, - None of bundle of rights a) Jus possidendi Same as rights given
are given to mortgagee- are given to pledgee- b) Jus utendi in right of retention,
creditor esp. no jus creditor. Pledgee cannot c) Jus fruendi- retentioner except that subject
possidendi, but upon use movable pledged does not legally own the matter is immovable
breach of principal without authority from fruits, but if he gathers the property only.
obligation, mortgagor owner, but when fruits, he must account for
may foreclose mortgage preservation of thing value of fruits, less the
- Mortgage extends to pledgee requires its use, expenses for cultivation
natural accession, to pledee may use it for that gathering and
improvements, growing purpose, e.g. winding a preservation of fruits.
fruit rents or income, clock or watch. (Art. 2104)
(but value of net fruits may
insurance indemnity or be set-off against the
indemnity in case of interest and principal of
expropriation obligation)
(Art. 2127)
(N.B. Retentioner need not
pay any rental)

11
 PROPERTY/SUBJECT MATTER OF REAL RIGHTS
REAL RIGHTS IMMOVABLE PROPERTY PERSONAL OR MOVABLE PROPERTY

CORPOREAL INCORPOREAL CORPOREAL INCORPOREAL

Art. 415 (1-9) C.C. Art. 415 (10) Art. 416 Art. 417
C.C. C.C. C.C.
/
OWNERSHIP / / /
POSSESSION DE JURE
/ / / /
USUFRUCT / / / /
EASEMENT /
RECORDED/LEASE OF
THINGS / /
REAL ESTATE MAORTGAGE / /
CHATTEL MORTGAGE / /
PLEDGE / But certificates of shares
of stock may be pledge
ANTICHRESIS /

RIGHT OF RETENTION / /

RIGHT OF PREEMPTION / / /
RIGHT OF REDEMPTION / / /

12
 Prof. Eduardo A. Labitag

OWNERSHIP

DEFINITION It is independent right of exclusive enjoyment and control of a thing for the
purpose of deriving therefrom all the advantages required by the
reasonable needs of the owner (or holder of the right) and the promotion of
the general welfare, but subject to the restrictions imposed by law and the
rights of others (J.B.L. Reyes).

CHARACTERISTICS

It is an elastic concept, i.e., some of the bundle of rights in ownership may

be temporarily given to another person, but ownership still retained by
owner

Generality of right – right to make use of all possibilities or utility of thing

Perpetual cause – exists as long as the thing exists

Independent of other real rights; it is the highest of all

real rights

13
OWNERSHIP

SUBJECT MATTER
Things/Property Rights (Proprietary
OF OWNERSHIP

Movables Immovables

Corporeal/Tangible Incorporeal/Intangible

14
OWNERSHIP

BUNDLE OF RIGHTS Jus Utendi To use and enjoy the thing and its
accessions
Possession (as a real
right or possession de Jus Fruendi To own the fruits and accessions
jure): Jus utendi and jus
fruendi are present if To use abnormally, in the sense of use that
possession in concept of Jus Abutendi
consumes the thing itself
owner
To dispose whether total or partial,
Jus Disponendi permanent or temporary (Alienation,
Encumbrance, Transformation,
Destruction)

Jus Vindicandi To vindicate; pursuit and recovery (Art.

434)

Jus Possidendi To possess (implied from the five rights

above)

15
OWNERSHIP

Right to Exclude; Self-Help (available to both owner and

lawful possessor); Doctrine of Self Help; Elements - Art. 429
– (Jus Utendi/Preventive Jus Vindicandi)
Right to Enclose or Fence - Art. 430 – (Jus Utendi/
Preventive Jus Vindicandi)
Right to Receive Just Compensation in Case of
Expropriation - Art. 435, but not if property
seized by competent authority in the interest of health,
safety or security (exercise of police power) unless seizure is
OTHER SPECIFIC RIGHTS unjustified
GIVEN TO OWNER IN THE Right to Hidden Treasure - Arts. 438-439
CIVIL CODE Right to Accession - Art. 440
Right to Recover Possession and/or Ownership – (Jus
Vindicandi)
Right of owner of land to its surface and everything under it,
except natural resources
Latin maxim – Cujus est solum ejus est usque ad coelum et
usque ad inferos. He who is the owner of the land is the
owner of everything above it up to the heavens and down to
the depths; the owner may make any works, plantations and
excavations subject to servitudes and special laws and
ordinances and reasonable needs of aerial navigation – Art.
437
16
OWNERSHIP Action to recover real right of ownership
(may be defeated by affirmative defense
AVAILABLE IMMOVABLE PROPERTY of acquisitive prescription on part of
ACTIONS TO defendant)
RECOVER REQUISITES
Acción Reivindicatoria 1. The thing must be CORPOREAL,
POSSESSION
OR CONCRETE and DETERMINATE
OWNERSHIP 2. PROOF of IDENTITY by BORDERS
(May be Natural or Artificial)
3. SUPERIOR TITLE OF OWNERSHIP
Action prescribes in 30 years, unless
defendant has acquired ownership and
REQUISITES other real rights by prescription of 10
FOR RECOVERY years (requires good faith and just title),
and possession in the concept of owner
• Plaintiff identifies
property and
• Proves his right
of Action to recover possession as a real
Acción Publiciana right or possession de jure. It prescribes
ownership/posses
sion in 10 years (Art. 555 par. 4)
- must rely on
strength of his
evidence and not
on weakness of
defendant’s claim
17
 OWNERSHIP It is an action to recover actual,
physical possession de facto of
AVAILABLE real property possessor or even
EJECTMENT ACTIONS an owner deprived of his actual
ACTIONS TO
RECOVER possession by means of force,
intimidation, threats, strategy or
POSSESSION OR Forcible entry stealth. It prescribes within one
OWNERSHIP
year from date of physical
dispossession.
It is also an action to recover
REQUISITES FOR
actual, physical possession of real
RECOVERY property. It prescribes within one
Unlawful Detainer year from date of last demand. The
•Plaintiff identifies defendant’s possession was at first
property and lawful (e.g. by virtue of a lease or
•Proves his right of tolerance) but became unlawful
ownership after failure to vacate upon
notification.
- Must rely on
strength of his
evidence and not MOVABLE PROPERTY Action to recover either ownership or
on weakness of possession. Prescribes in 8 years.
defendant’s claim May be defeated by affirmative
defense of ordinary acquisitive
Replevin prescription of 4 years (Art. 1140,
1132, subject to Arts. 559, 1505, and
1133).
18
LIMITATIONS OF GENERAL Police Power e.g.,Abatement of nuisance
REAL RIGHT TO
OWNERSHIP
Taxation
Property is expropriated is devoted for
public use, but upon payment of just
Eminent Domain compensation
SPECIFIC

• Valide, provided they are not contrary to or forbidden by law e.g., encumbrances, servitudes
Limitations imposed by
Pactum de non alienando (stipulation in a mortgage contract prohibiting mortgagor to sell
owner’s or grantor’s will
mortgaged property void stipulation
• Inter vivos e.g., donations where donor imposes conditions
Limitations from the Civil • Mortis causa e.g., last will where testator may impose indivision among co-
Code heirs up to 20 years or other conditions.

• Liability for noisome and excessive smoke, emanations (Art. 2191)

These are limitations for the • Observance of distances in planting and building (Arts. 677 – 679)
private benefits of • Observance of distances for making openings in one’s own walls (Art. 670)
neighbors (relaciones de • Duty to grant right of way (Art. 649) even without indemnity (Art. 652)
vencidad) • Duty to receive water naturally descending from higher level (Art. 637)
Sic utere tuo ut alienum • Duty to drain buildings through one’s own properties (Art. 676)
non laedas (so use your • Restrictions in the use of party walls (Arts. 644, 666)
property that it will not harm • Restrictions on Excavations (Arts. 684 – 687)
others). The owner of a • The owner of a thing has no right to prohibit the interference of another with the same, if the
thing cannot make use
interference is necessary to avert an imminent danger and the threatened damage,
thereof in such manner as
to injure the rights of a third
compared to the damage arising to the owner from the interference, is much greater. The
person (Art. 431). owner may demand from the person benefited indemnity for the damage to him (Art. 432) –
Act in state of necessity/ avoidance of greater evil or injury.

19
Limitations imposed by •Mortgage, real estate or chattel
himself •Pledges
•Antichresis
•Voluntary easements
•Voluntary usufructs

Hidden Treasures – hidden deposit of money, jewelry or other precious objects, the lawful
ownership of which does not appear (Art. 439)

If treasure be of interest to science or the arts, state may acquire them at their just price.
(Art. 438 pars. 2 & 3)

General Rules:

Belongs to owner of the land, building and other property on which it is found (Art. 438, par. 1)

When hidden treasure is found on property of another, or of State or any of its subdivisions
BY CHANCE AND FOUNDER is not a trespassers, FINDER entitled to one-half of treasures

20
 Prof. Eduardo A. Labitag

ACCESSION
It is the extension of ownership over a thing to whatever is produced by something or
DEFINITION incorporated or attached thereto naturally or artificially (with or without labor of man)
(Art. 440, CC). Incorporation means stable union or adherence, not mere juxtaposition.

GENERAL Accessory follows the principal. (The owner of the principal also owns the
PRINCIPLES OF accessions.)
ACCESSION
applicable to both No one shall be unjustly enriched at the expense of another.
accession continua
and accession
The owner of the principal thing owns the fruits, except in:
discreta 1) Possession in good faith
2) In usufruct
APPLICABLE TO 3) In lease
accession discreta 4) In antichresis
only
Whatever is built, planted or sown on the land of another, and the
improvements or repairs made thereon, belong to the owner of the land,
subject to the provisions on building, planting and sowing (Art. 445).
APPLICABLE TO
accession continua All works, sowing and planting are presumed made by owner and at his
alone expense, unless the contrary is proven (Art. 446).

Bad faith of one party neutralizes bad faith of the other (Art. 453 par. 1; Art.
470, par. 3).

Bad faith involves liability for damages and other dire consequences (Art
451; Art. 450).

Accessory is incorporated to the principal such that it cannot be separated

therefrom without damage, injury or destruction (Art. 447, 2nd sentence; Art.
469). 21
CLASSIFICATION OF ACCESSION

By internal forces (fruits)

KINDS:
DISCRETA NATURAL – spontaneous products of soil and the
Young and other products of animals (Art. 442, 1st par.)
INDUSTRIAL – produced by lands of any
kind through cultivation of labor (Art. 442, 2ns par.)
CIVIL – rents of buildings, leases of lands, life
Annuities and similar income (Art. 442, 3rd par.)

CONTIUNA By external forces (by incorporation or attachment.)

22
ACCESSION CONTINUA

OVER IMMOVABLES

THREE SITUATIONS OF BPS

ARTIFICIAL OR
INDUSTRIAL, •Landowner is the BPS but uses materials owned
BUILDING, PLANTING by another – Art. 447
, SOWING (BPS) •BPS is not the owner of the land but BPS owns
the materials – Art. 448 – 454
•BPS is not the owner of both the land and
materials – Art. 455

Accretion
NATURAL
Avulsion

Change in the course of the river

Formation of islands
23
ACCESSION CONTINUA

CONJUNCTION and ADJUDICATION (process where 2 movables belonging to

OVER MOVABLES different owners are attached to each other to form a single object)
- Five types: (1) inclusion or engraftment, (2) soldadura or soldering;
ferrumination (same metals) plumbatura (different metals), (30 tejido or
weaving, (4) escritura or writing, (5) pintura or painting.
Three Types
COMMIXTION (solids) and CONFUSION (liquids and gases)

SPECIFICATION (transforming/giving a new form to

movable belonging to another through labor

Rules to determine principal thing:

(1)That to which the other has been united as an ornament or for its
use or perfection (art. 467);

(2) If it cannot be determined by 1st rule, the one with the greater value;

(3) If value of two things are equal that of the greater volume

in painting, sculpture, printed matter, engraving and litography, if of

equal, the board, metal, stone paper or parchment, is deemed to be
accessory. (Art. 468, par. 3)

24
WHO IS THE BPS? See Coleongco v. Regalado (92 Phil. 87) – The rules on
IN WHICH SITUATIONS ARE BPS are inapplicable if the owner of land himself is the
THEY INAPPLICABLE? BPS (except in Art. 447)

THREE SITUATIONS OF BUILDING, PLANTING , SOWING (BPS) IN CIVIL

CODE

1. Owner of land (LO) is himself the BPS, out uses materials of another (OM) – Article
447 CC
Article 447 CC
1. LO-BPS-Good Faith
OM-Good Faith
2.LO-BPS-Bad Faith – (a) OM may separate the two even if it causes damage
of destruction; (b) Pays for value of materials; © Damages in any event.
OM-Good Faith
2. LO is not the BPS; Possessor in concept of owner in BPS. (Articles 448-454 CC)
BPS – who is not LO uses materials belonging the materials to another (OM) Article 455 CC
(1) Solve problem by considering firsts the Good Faith or Bad Faith of LO and BPS – OM
(Arts. 448-454)
(2) If OM acted in Good Faith he can ask for value of materials primarily from BPS and
subsidiarily from LO but if LO did not profit from materials, LO not subsidiarily liable (Art.
450-455))

OPTIONS DEPEND UPON GOOD FAITH OR BAD FAITH of parties

25
MAIN INSTANCES OF
BPS

A. BOTH LO AND
BPS IN GOOD
FAITH Art. 448-455 CC)

Apply Art 448: The owners of the land on which anything has been built, sown or planted
in good faith, shall have (a) the right to appropriate as his own the works, sowing or
planting after payment of the indemnity provided for in Article 546 and 548, or (b) to
oblige the one who built or planted to pay the price of the land, and the one who
sowed, the proper rent. However, the builder or planter cannot be obliged to buy the
land if its value is considerably more than that of the building or trees. In such case,
he shall pay reasonable rent, if the owner of the land does not choose to appropriate
the building or trees after proper indemnity. The parties shall agree upon the terms of
the lease and in case of disagreement, the court shall fix the terms thereof.

26
 OPTION OF THE RIGHTS AND OBLIGATIONS OF BPS
LANDOWNER
RIGHT OF RETENTION UNTIL BPS IS PAID
ACQUIRE BPS Right to remain in possession
Right not to pay rental for use of land
No right to fruits; duty to account for fruits if BPS-retention
gathers fruit during period of retention (Ortiz vs. Kayanan,
92 SCRA 146)
RIGHT TO DEMAND PAYMENT FOR VALUE OF BPS depending on whether the
building, planting or sowing is the result of a necessary, useful, or ornamental
expense (Art. 546,548)

Builder, Planter (BP) MAY REFUSE TO BUY LAND IF VALE OF LAND IS

CONSIDERABLY MORE THAN BP
SELL THE LAND Parties must then agree on terms of lease, if the LO does not choose to
appropriate the BP. If they cannot agree, the court will set the terms (Depra vs.
TO THE BP; LEASE
Dumlao, 136 SCRA 475)
THE LANDTO THE BP MUST BUY LAND IF ITS VALUE IS NOT CONSIDERABLY MORE THAN BP
SOWER REFUSES TO PAY or CANNOT POY
1) BP loses right to retantion; 2) Land and BP may be sold
at public auction (Bernardo vs. Bataclan, 66 Phil. 598);
3) Removal of BP (Ignacio vs. Hilario, 76 Phil. 605)
Nota Bene: LO cannot refuse to choose, But what if he does not choose?
2) Sower cannot be required to buy the land even if he acted in bad faith;
3) Reverse accession – applicable only in conjugal partnership of gain marriage
regime to improvement whether for utility or adornment maid by the conjugal
partnership or through acts and effort of either or both spouses on the separate
property of other spouse.

Implied option: If bps can be removed without damage or injury, they can be separated
27
MAIN INSTACES OF
BPS

B. BPS IN BAD FAITH;

LO IN GOOD FAITH

Apply Arts. 449-452.

Art. 449. He who builds, plants or sows in bad faith on the land of another,
loses what is built, planted or sown without right to indemnity.
Art. 450. The owner of the land on which anything has been built, planted or
soiwn on bad faith may demand the demolition of the work, or that the
planting or sowing be removed, in order to replace things in their former
condition at the expenses of the person who built, planted or sowed; or he
may compel the builder or planter to pay the price of the land, and the
sower the proper rent.
Art. 451. In the cases of the two preceding articles, the landowner is entitled to
damages from the builder, planter or sower.
Art. 452. The builder, planter or sower in bad faith is entitled to reimbursement
for the necessary expenses of preservation of the land.
28
Options of the Land Owner Rights and obligations of BPS

Acquire BPS without payment of Reimbursement for necessary

indemnity (Art. 449 expenses without any right of retention
(Art. 452)
Removal/Demolition of BPS (Art. 450) Spend for Removal

Require Builder/Planter to buy land; No right to refuse even if the value of

Lease land to Sower land is considerably more than
Building/Planting
Demand damages in addition to Pay for damages
exercising three abovementioned
options (Art. 4501)

Require BPS to account for value of Right ti deduct expenses for

fruits received or fruits LO could have production, gathering and preservation
received had been in possession (Art. of fruits (Art. 443)
549)
29
MAIN INSTACES
OF BPS

Apply Arts. 454 and 447. Art. 454 provides that the provisions of
article 447 shall apply.
C. LO IN BAD Art. 447. The owner of the land who makes thereon, personally
FAITH; BPS IN or through another, plantings, constructions or works with the
GOOD FAITH materials of another, shall pay their value; and, if he acted in bad
faith, he shall also be obliged to the reparation of damages. The
owner of the materials shall have the right to remove them only
in case he can do so without injury to the work constructed, or
without the plantings, constructions or works being destroyed.
However, if the landowner acted in bad faith, the owner of the
materials may remove them in any event, with a right to be
indemnified for damages. QUERY: What is the legal basis for using
Art. 447?

OPTIONS OF LO-BPS under Art. 447); BPS OBLIGATIONS OF Land Owners (under Art.
under Art. 454 454)
REQUIRE PAYMENT FOR MATERIALS PAY FOR MATERIALS
REMOVE MATERIALS LO CANNOT REFUSE IF IT WILL CAUSE
INJURY OR DAMAGE TO LAND
DEMAND DAMAGES IN ADDITION TO PAY FOR DAMAGES
EXERCISING OPTION 1 OR 2

30
MAIN INSTANCES
OF BPS

D. BOTH BPS The rights of both shall be the same as if both had acted in good
AND LO IN BAD faith. (Art. 453, 1st par.) See options in part A.
FAITH

OPTIONS OF THE RIGHTS AND OBLIGATIONS OF BPS

LANDOWNER
ACQUIRES BPS RIGHT OF RETENT UNTIL BPS IS PAID
Right to remain in possession
Right not to pay rental for use of land
No right to fruits; duty to account for fruits (Ortiz vs. Kayanan

SELL THE LAND TO THE BP MAY REFUSE TO BUY LAND IF VALUE OF LAND IS CONSIDERABLE MORE
BP; LEASE THE LAND TO THAN BP
THE SOWER Parties must then agree on terms of lease, if the LO does not choose to
appropriate the building, planting if they cannot agree, the court will set the terms
(Depra vs. Dumlao, 136 SCRA 475)
BP MUST BUY LAND IF ITS VALUE IS NOT CONSIDERABLE MORE THAN BP. IF
BP REFUSES TO PAY:
1. BP loses right of retention; 2 Land and BP may be sold at public auction
(Bernardo vs. Bataclan, 66 Phil. 598); 3 Removal of BP (Ignacio vs. Hilario, 76 Phil.
605)

Nota Bene: LO cannot refuse to choose. But what if he does not choose?

31
Art. 45 – OM who has not acted in bad faith entitled to reimbursement BPS
is primarily liable. OM is subsidiarily liable only if LO made use of them (or
acquired them) and BPS is insolvent. LO NOT subsidiarily liable if LO
make use of right under Art. 450, i.e. demolition or removal)

SUPREME COURT Depra v. Dumlao 136 SCRA 475 and

GUIDELINES IN reiterated in Technogas Phils.
APPLYING ART. 448
Manufacturing Corp. v. CA 286 SCRA 5

Ignacio v. Hilario 76 Phil. 605

DISCUSSION OF Pecson v. CA 244 SCRA 407
SUPREME COURT Coleongco v. Regalado 92 Phil. 87
DECISIONS ON BPS Felices vs. Iriola
Ortiz vs. Kayanan
Pleasantville Dev’t Corp. v. CA 253 SCRA
10

32
 Accretion/Alluvium - To the owners of lands adjoining the banks of rivers belong the accretion
which they gradually receive from the effects of the current of the waters (Art. 457) .
ACCESSION
CONTINUA
Requisites for alluvion:
1. that the deposition of soil or sediment be gradual and imperceptible;
OVER 2. that it be the result of the action of the waters of the river (or sea);
IMMOVABLES 3. that the land where the accretion takes place is adjacent to the banks of rivers (or
the lake coast) (Vda. de Nazareno vs. CA, 257 SCRA 589, June 26, 1996)
NATURAL

Avulsion – it is the transfer of a known portion of land from one tenement to another
tenement owned by another through the force of the current of a river(see Art. 459)

if the deposit is a known portion of land, the original owner retains ownership ,
exceptions: (a) abandonment, (b) expiration of 2 years

If uprooted trees are carried by floods, the owner of the land owns such if the owner
of the trees do not claim them within 6 months; if they are claimed, the owner shall
pay for expenses for gathering and putting them in a safe place (Art. 460)

Change of Course of River (Arts. 461-463) -

• river changes course leaving dry part of river bed; abandoned riverbeds through natural change
ipso facto belongs to the owners adjoining lands in proportion to the area lost; however, adjoining
land owners have the right to acquire the same after paying the value
• when river changes course by natural causes forming a 2nd channel, the new bed becomes
public dominion
• when river divides into branches, isolating a land or portion thereof, the owner of the land
retains ownership; also, he retains it if a portion of land is separated from the estate by the
current.

Requisites of change of bed:

Under the Water Code, the government
1. It must be sudden;
2. It must be permanent; Or the riparian owner with government may
3. It must occur naturally; Permission return the river back to
4. The reparian or the gov’t. Does not the Original bed (Art. 58, par. 2; PD 1067
return the rive bck to it. 33
ACCESSION Formation of Islands (Arts. 461-465; see PD 1067)
CONTINUA • Whenever the current of a river divides itself into branches, leaving a piece of land or part
thereof isolated, the owner of the land retains his ownership. He also retains it if a portion of
land is separated from the estate by the current.
OVER • The owners of the affected land may not compel the government to restore the river
IMMOVABLES to its former bed; nor can they restrain the government from taking steps to revert the
river or stream to its former course; thus, the owners are not entitled to compensation
NATURAL • The former owners of the new bed shall be the owners of the abandoned bed
proportionately to the area lost by each (Art. 58, PD 1067)
• Islands which may be formed on the seas within the jurisdiction of the Philippines, on lakes,
and on navigable or floatable rivers belong to the State
• Islands which through successive accumulation of alluvial deposits are formed in non-
navigable and non-floatable rivers, belong to the owners of the margins or banks nearest to
each of them, or to the owners of both margins if the island is in the middle of the river, in
which case it shall be divided longitudinally in halves; If a single island thus formed be more
distant from one margin than from the other, the owner of the nearer margin shall be the sole
owner thereof

Ownership of Islands:
A. Formed by sea:
1. Within territorial waters – to the State (Art. 464)
2. Outside territorial waters – to the first occupant (v. Public International Law)

B. Formed in lakes or navigable or floatable rivers: to the State (Art. 464)

C. By non-navigable or non-floatable rivers:

1. Equidistant from both banks (measured from island’s margins) – to the riparian
owners, by halves
2. Nearer one margin or bank: to the nearer riparian owner (Art. 465)

Formation of island by branching of a river: there is no accession; the owner retains

ownership of the isolated piece (Art. 463)

34
 CONJUNCTION and ADJUNCTION - the union of materials of different owners making up a new thing
(separation cannot be done without injury) (Arts. 466, 469)
Kinds of CONJUNCTIONS and ADJUDICATION:
ACCESSION 1.Inclusion or Engraftment
CONTINUA 2.Soldadura or soldering (Plumbatura – different metals; Ferruminatio – same metal)
3.Tejido or Weaving
4.Escritura or writing
OVER 5.Pintura or Painting
MOVABLES Rules:
• Generally, the accessory follows the principal.
• Determination of the principal thing:
1. Intent: that to which another is united as an ornament, or for its use or perfection is deemed the
principal;
2. Value: if cannot be determined by rule #1, the thing of greater value is considered the principal;
3. Volume: if the values are equal, that of greater volume is the principal

NOTE: In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal,
stone, canvas, paper or parchment shall be deemed the accessory thing (Art. 468, par.2)

• Separation:
1. if things may be separated without injury, separation may be demanded
2. If accessory is more precious, the owner may demand its separation even if principal suffers some injury

• Bad faith in incorporation:

1. In case of owner of accessory, he shall lose the accessory and indemnify the owner of principal for
damages.
2. In case of owner of principal, the owner of accessory may choose:
a. to have owner of principal pay value of accessory
b. to have accessory separated even if principal be destroyed
with damages in either case; in case of damages, owner of accessory may choose:
i. delivery of a thing equal in kind and value, or
ii. payment according to expert appraisal

• Mutual assent to incorporation:

Their respective share sshall be determined as though both acted in good faith

35
 MIXTURE – the union of materials where the components lose their identity. Kinds:
Commixtion (solids) and Confusion (liquids and gases)
ACCESSION Rules:
CONTINUA 1. By will of both owners or by accident
•Each owner acquires an interest in proportion to the value of his material (resulting in co-
OVER ownership)
MOVABLES 2. By one owner in good faith (same rule above)
3. By one owner in bad faith
•he loses all rights to his own materials, and
•he is answerable for damages
4. By a common agent
•Same with #1; see Warehouse Receipts Law (Act 2137), where the warehouseman is
authorized to commingle the goods

SPECIFICATION - transforming/giving of a new form to another’s material through labor

Rules:
1.Owner of the principal in good faith
•Maker acquires new thing and must indemnify the owner of the material
•Exception: material is more valuable than the resulting thing; In such case, the owner of the
material has the option:
• Acquire the work, indemnifying the labor, or
• Demand indemnity for the material
2. Owner of the principal in bad faith; the material owner has the option:
•To acquire the result without indemnity, or
•Demand indemnity for the material plus damages
•But in case new thing is important for scientific or artistic reasons, owner of material cannot
acquire the work (Art. 474).

3. Material owner in bad faith

•he loses the material and must pay for damages

36
 Prof. Eduardo A. Labitag

QUIETING OF TITLE
An action to quiet title to property is an equitable remedy which has for its
DEFINITION
purpose an adjudication that an adverse claim of title to or an interest in
property to that of the complainant is invalid. It is also referred to as an
action to remove a cloud to property.
DIFFERENCES
BETWEEN ACTION An action to quiet title is primarily an action aimed at putting an end to
TO QUIET TITLE vexatious litigation of a subject property.
AND ACTION TO • In such action, the plaintiff asserts his title that the defendant’s claims
REMOVE A CLOUD
is unfounded and challenges the defendant to state forth the nature of
OR TO PREVENT A
CLOUD his claim.

An action to remove cloud is designed to obtain the cancellation,

delivery of, release of an instrument, encumbrance, or claim constituting
a claim on plaintiff’s title, and which may be used to injure or vex him in
the enjoyment of his title.
• In such action, the plaintiff declares his own title and states that
defendant’s source and nature of claim is defective. Consequently, the
plaintiff asks that the latter be declared void.

PRESCRIPTION OF Imprescriptible if plaintiff is in possession; if not, prescribes within period

ACTION for filing accion publiciana, accion reivindicatoria

37
 Prof. Eduardo A. Labitag

QUIETING OF TITLE

WHO ARE An action for the reformation of an instrument, to quiet

ENTITLED TO
BRING ACTION? title to real property or remove clouds therefrom, or to
consolidate ownership under Article 1607 of the Civil
Code, may be brought under this Rule. (Rule 64 Sec.
1 par. 2, Rules of Court)

NOTES:

1. There is a cloud on title to real property or any interest to real

property (Art. 476).
2. Plaintiff has legal or equitable title to or interest in the subject/real
property.
3. Instrument record claim, etc. must be valid and binding on its face
but in truth and in fact invalid, ineffective, voidabale and unenforceable
4. May also be brought when contract, instrument or other obligation
has been extinguished or terminated or barred by extinctive
prescription (Art. 478)
5. Plaintiff must return benefits received form defendant.

38
 Prof. Eduardo A. Labitag

CO-OWNERSHIP
DEFINITION • The right of common dominion which two or more persons have in spiritual part of a thing
which is not physically divided (Sánchez Román).
• It is a manifestation or variation of ownership; where instead of there being a sole owner, there
several persons exercising the real right of ownership.

CHARACTERISTICS There is plurality of owners, but only one real right of ownership

The recognition of ideal shares or aliquot portions, defined but not physically
identified

Each co-owner has the absolute control over his ideal share, not over specific
portions of the property.

There is mutual respect among co-owners as regards the use, enjoyment and
preservation of the property owned in common.

SUBJECT MATTER All things or property (including property rights), whether real or personal property,
OF CO-OWNERSHIP tangible or intangible

CONTRASTED WITH JOINT TENANCY A joint tenant cannot sell his separate share.
JOINT TENANCY Involves a physical whole
and results in ownership
The interest of the deceased accrues to the
in the group.
surviving joint owner.

The disability of one joint owner benefits the others

(Tagarao v. Garcia, 61 Phil. 5)

39
COMPARED WITH BY ITS ORIGIN Co-ownership is created by other sources besides a contract;
PARTNERSHIP partnership, contract only (except conjugal partnership).

BY PERSONALITY Co-ownership has no juridical personality; partnership has

juridical personality distinct from the members.

BY REPRESENTATION Co-ownership involves no legal representation of other co-

owners; partnership may be represented by any partner
(unless otherwise agreed)

BY ITS PURPOSE Co-ownership provides for common enjoyment; the purpose of

a partnership is for profit

BY ITS DURATION Co-ownership: may not stipulate indivision for more than 10
years (20 if imposed by testator or donor [Art. 494]);
partnership: may be for more than 10 years.

AS REGARDS ITS Co-ownership is not dissolved by the co-owner’s death;

DISSOLUTION partnership is dissolved by any partner’s death.

LEGAL EFFECTS Co-ownership creates rights in favor of each one of the co-owners with respect to the
property owned in common. All the bundle of rights in ownership are found in co-
ownership also, with each co-owner having all such rights in conjunction with the other
co-owners. The rights of a co-owner can be viewed in 2 senses:
1. His right over the thing owned in common is limited by the other
co-owner’s concomitant rights
2. His rights over his ideal share or his undivided interest over the
same property; the individual co-owner has absolute control and
ownership over his ideal share.

BUNDLE OF RIGHTS Jus Utendi Jus Abutendi Jus Vindicandi

Jus Fruendi Jus Disponendi Jus Possidendi 40

SOURCES
LAW BY THE VOLUNTARY ACT OR WILL OF
OWNER OR PARTIES TO CONTRACT

CHANCE OCCUPATION (Hunting and fishing)

LAW • BETWEEN A MAN AND A WOMAN CAPACITATED TO MARRY EACH OTHER

Art. 147: When a man and a woman who are capacitated to marry each other, live exclusively with each
other as husband and wife without the benefit of marriage or under a void marriage, their wages and
salaries shall be owned by them in equal shares and their property acquired by both of them through their
COHABITATION work or industry shall be governed by the rules on co-ownership. In the absence of proof to the contrary,
their properties which were acquired while they lived together shall be presumed to be obtained jointly. If a
party did not actually contribute but s/he contributed in the care and maintenance of the family and the
household, those efforts are considered.
Neither party can encumber or dispose by acts inter vivos on his/her share in the property acquired during
cohabitation and owned in common, without the consent of the other, until after the termination of the
cohabitation.
When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-
ownership shall be forfeited in favor of the common children. In case of default or of waiver by any or all of
the common children or their descendants, each vacant share shall belong to the respective surviving
descendants. In the absence of descendants, such share shall belong to the innocent party. In all cases,
the forfeiture shall take place upon termination of the cohabitation.

• BETWEEN A MAN AND A WOMAN NOT CAPACITATED TO MARRY EACH OTHER

Art. 148: In cases of cohabitation not falling under the preceding article, only the properties acquired by
both of the parties through their actual joint contribution of money, property or industry shall be owned by
them in common proportion to their respective contributions. In absence of proof to the contrary, their
contributions and actual shares are presumed to be equal. The same rule and presumption shall apply to
joint deposits of money and evidences of credit.
If one of the parties is validly married to another, his or her share in the co-ownership shall accrue to the
absolute community or conjugal partnership existing in such valid marriage. If the party who acted in bad
faith is not validly married to another, his or her share shall be forfeited in the manner provided in the last
paragraph of the preceding article.
The foregoing rules on forfeiture shall likewise apply even if both parties are in bad faith.

41
LAW

IMPLIED TRUST If 2 or more persons purchase property and by common consent legal title is taken in the name of one of
them for the benefit of all, an implied trust is created in favor of others in proportion to interest of each (Art.
1452).

INTESTATE Where there are 2 or more heirs, the whole estate of the decedent is, before its partition, owned in common
SUCCESSION by such heirs, subject to the payment of debts of the deceased.(Art. 1078).

HIDDEN Co-ownership between finder and owner if finder (who is not the owner) found hidden treasure by chance
TREASURE and is not a trespasser
Art. 438: Hidden treasure belongs to the owner of the land, building or property on which it is found.
Nevertheless, when the discovery is made on the property of another, or of the State or any of its
subdivisions, and by chance, one-half thereof shall be allowed to the finder. If the finder is a trespassr, he
shall not be entitled to any share of the treasure.

Art. 685: The easement of a party wall shall be governed by the provisions of this Title, by the local
ordinances and customs insofar as they do not conflict with the same, and by the rules of co-ownership.
EASEMENT OF
This is a special type of co-ownership. There is no right to ask for partition and no recognition of ideal
PARTY WALL
shares.

Condominium Unless otherwise expressly provided in the enabling or master deed or the declaration of restrictions (Sec.
Common Areas 6[c], The Condominium Law, RA 7426)

BY THE VOLUNTARY
ACT OR WILL OF
THE OWNER OR
PARTIES TO
CONTRACT

TESTATE Property is given to 2 or more persons.

SUCCESSION Note: Right of accretion is common to both testate and intestate succession (Arts. 1055-1023
)142
BY THE VOLUNTARY
ACT OR WILL…

DONATION Donation made to several persons jointly, it is understood to be made in equal shares (Art. 753).
No rights of accretion, unless donor otherwise provides.
But if donation is made to a husband and wife jointly, there shall be a right of accretion, unless the
contrary is so provided (Art. 573 par. 2) Meaning of right of accretion: (Art. 1015)

CONTRACT Two or more persons agree to create a co-ownership. Maximum duration of co-ownership by agreement:
10 years (Art. 494 par. 2). This term may be extended by a new agreement.

UNIVERSAL • OF ALL PRESENT PROPERTIES

PARTNERSHIP Art. 1778 – A partnership of all present property is that in which the partners contribute all property which
actually belongs to them to a common fund, with the intention of dividing the same among themselves, as
well as all the profits which they may acquire therewith.
Art. 1779 – In an universal partnership of all present property, the property which belong to each of the
partners at the time of the constitution of the partnership, becomes the common property of all the
partners, as well as all the profits which they may acquire therewith.
A stipulation for the common enjoyment of any other profits may also be made; but the property which the
parties may acquire subsequently by inheritance, legacy or donation cannot be included in such
stipulation, except the fruits thereof.
• OF PROFITS
Art. 1780 – A universal partnership of profits comprises all that the partners may acquire by their industry
or work during the existence of the partnership.
Movable or immovable property which each of the partners may possess at the time of the celebration of
ASSOCIATIONS
the contract shall continue to pertain exclusively to each, only the usufruct passing to the partnership.
AND SOCIETIES,
WHOSE ARTICLES
ARE KEPT SECRET
Art. 1775 – Associations and societies, whose articles are kept secret among the members, and wherein
AMONG ITS
any one of the members may contract in his own name with third persons, shall have no juridical
MEMBERS
personality, and shall be governed by the provisions relating to co-ownership.

43
CHANCE

COMMIXTION OR Art. 472 – If by the will of their owners 2 things of the same or different kinds are mixed or by the will of only
CONFUSIONIN one owner but in good faith (Art. 473), or if the mixture occurs by chance, and in the latter case the things
GOOD FAITH are not separable without injury, each owner shall acquire a right proportional to the part belonging to him,
bearing in mind the value by the provisions of the preceding article.
RIGHTS OF EACH
CO-OWNER OVER
THE THING OR
PROPERTY OWNED
IN COMMON

TO USE THE Art. 486 – Each co-owner may use the thing owned in common, provided he does so in accordance with
THING the purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or
ACCORDING TO prevent the other co-owners from using it according to their rights. The purpose of the co-ownership may
THE PURPOSE be changed by agreement, express or implied.
INTENDED (JUS
UTENDI)

TO SHARE IN THE Art. 485 – The share of the co-owners, in the benefits as well as in the charge, shall be proportional to their
BENEFITS IN respective interests. Any stipulation in a contract contrary shall be void.
PROPORTION TO The portions belong to the co-owners in the co-ownership shall be presumed equal, unless the contrary is
HIS INTEREST, proved.
PROVIDED THE
CHARGES ARE
BORNE BY EACH
IN THE SAME
PROPORTION

ANYONE OF THE Dr. Arturo Tolentino is of the opinion that the term ejectment includes all actions for recovery of possession.
CO-OWNERS MAY
BRING AN ACTION
IN EJECTMENT
(Art. 487) 44
RIGHTS OF EACH
CO-OWNER…

TO COMPEL THE Other co-owners have the option not to contribute by renouncing so much of his undivided interest as may
OTHER CO- be equivalent to his share of the necessary expenses and taxes.
OWNERS TO But no such waiver can be made if it is prejudicial to co-ownership. Justice J.B.L. Reyes opines that such
CONTRIBUTE TO waiver requires the consent of other co-owners because it is a dación en pago.
EXPENSES FOR Art. 489 – Repairs for preservation may be made at the will of one of the co-owners, but he must, if
THE practicable, first notify his co-owners of the necessity of such repairs. Expenses to improve or embellish
PRESERVATION the things shall be decided upon a majority as determined in Art. 492 (This requires consent of the financial
OF THE majority or controlling interest in co-ownership).
PROPERTY
OWNED IN
COMMON AND TO
THE PAYMENT OF
TAXES (Art. 488)

TO OPPOSE ANY Art. 491 – No one of the co-owners shall, without the consent of the others, make alterations in the thing
ACT OF owned in common, even though benefits for all would result therefrom. However, if the withholding of the
ALTERATION consent by one or more of the co-owners is clearly prejudicial to the common interest, the courts may
afford adequate relief.

ACT OF ALTERATION: It is any change IS THE LEASE OF REAL PROPERTY OWNED IN

injurious to the thing owned in common or to COMMON AN ACT OF OWNERSHIP OR AN ACT OF
the rights of other co-owners or is material to ADMINISTRATION?
the use, destination or state of the thing, which
Art. 1647, in relation to Art. 1878 par. 8, provides: If a lease
act is in violation of the express or tacit
is to be recorded in the Registry of Property, the ff. persons
agreement of the co-owners. However, cannot constitute the same without proper authority: the
“replacement” is not alteration (Enriquez v. husband with respect to the wife’s paraphernal estate, the
Watson and Co., 22 Phil. 623) The unanimous father or guardians as to the property of the minor or ward,
consent of all co-owners is required in an act and the manager without special power.
of alteration; majority is not enough. Art. 1878 par. 8: Special Powers of Attorney are necessary
But if the withholding of consent by any one of in the following cases: xxx To lease any real property to
the co-owners is clearly prejudicial to the another person for more than 1 year.
common interest, courts may afford adequate
Melencio v. Dy Tiao Lay (55 Phil. 100): Long term lease
relief (Art. 491).
(over 6 years) by a majority is void. 45
RIGHTS OF EACH
CO-OWNER…

TO PROTEST Acts of administration and better enjoyment of the property owned in common have the following
AGAINST characteristics: 1) They do not involve an alteration
RESOLUTIONS OF 2) They are renewable from time to time
MAJORITY WHICH 3) They do not bind the co-ownership for a long time in the future
ARE SERIOUSLY 4) They do not give rise to a real right over the things owned in common.
PREJUDICIAL TO CASE: Lavadia v. Cosme, 72 Phil. 196
THE MINORITY (IN
ACTS OF
ADMINISTRATION,
Art. 497)

TO EXERCISE Art. 1620 – A co-owner of a thing may exercise the right of redemption in case the shares of all the other
RIGHT OF LEGAL co-owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive,
REDEMPTION the redemption shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion
to the share they may respectively have in the thing owned in common.
Art. 1088 – Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of he purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month from the time they were notified in writing of the sale by
the vendor.
Art. 1623 – The right of legal pre-emption or redemption shall not be exercised except within 30 days from
the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale
shall not be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he
has given written notice thereof to all possible redemptioners.
CASES: Mariano v. CA, 222 SCRA 736; Verdad v. CA, 256 SCRA 593; Reyes v. Judge Concepcion, 190
SCRA 171

PERIOD FOR EXERCISE OF RIGHT OF REDEMPTION: Thirty (30) days from date of written notification
of sale by co-owner/vendor
Without such written notification, the 30-day period does not start to run.

46
RIGHTS OF EACH
CO-OWNER…

TO ASK FOR Art. 494 – No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any
PARTITION time the partition of the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten
years, shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed 20 years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs as long as he
expressly or impliedly recognizes the co-ownership.

The principle is that as long as the co-ownership exists, anyone of the co-owners can ask for partition, or
as to any co-owner the action for partition is imprescriptible.

EXCEPTIONS TO THE RIGHT TO ASK FOR PARTITION:

1) When there is a stipulation against it (not more than ten years)
2) When the condition of indivision is imposed by transferor (donor or testator), (not to exceed 20 years)
3) When the legal nature of the community prevents partition (party wall)
4) When partition is generally prohibited by law (e.g., absolute community of property, party wall)
5) When partition would render the thing unserviceable, or the thing in common is essentially indivisible.
There can be no physical partition. (But the thing may be sold and co-owners shall divide the proceeds),
(Arts. 495, 498)

NOTE: Also, an action for partition will fail if acquisitive prescription has set in favor of a stranger to co-
ownership or in favor of co-owner.

Art. 494 par. 5 provides: No prescription shall run in favor of a co-owner or co-heir against his co-heirs as
long as he expressly or impliedly recognizes the ownership.

The co-owner’s possession of the property owned in common is not adverse to the rest of the co-owners.
In order to be adverse, a) he must execute unequivocal acts of repudiation amounting to the ouster of the
other co-owners; b) such acts of repudiation must be known to the other co-owners, c) and must be proved
by clear and convincing evidence. In addition, the adverse possession must be for the period required for
extraordinary acquisitive prescription.

47
RIGHTS OF EACH
CO-OWNER…

TO ASK FOR EFFECT OF PARTITION

PARTITION Art. 1091 - A partition legally made confers upon each heir the exclusive ownership of the property
adjudicated to him.
Art. 1092 - After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to,
and the quality of, each property adjudicated.
Art. 1093 - The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to
the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-
heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who
should be indemnified.
Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his
financial condition improve.
Art. 543 - Each one of the participants of a thing possessed in common shall be deemed to have
exclusively possessed the part which may be allotted to him upon the division thereof, for the entire period
during which the co-possession lasted. Interruption in the possession of the whole or a part of a thing
possessed in common shall be to the prejudice of all the possessors. However, in case of civil interruption,
the Rules of Court shall apply.
Art. 499 - The partition of a thing owned in common shall not prejudice third persons, who shall retain the
rights of mortgage, servitude or any other real rights belonging to them before the division was made.
Personal rights pertaining to third persons against the co-ownership shall also remain in force,
notwithstanding the partition.
Art. 500 - Upon partition, there shall be a mutual accounting for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or
fraud.
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.
Art. 1098. A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of
the co-heirs received things whose value is less, by at least one-fourth than the share to which he is
entitled, considering the value of the things at the time they were adjudicated.

RIGHT OF CREDITORS OF INDIVIDUAL CO-OWNERS

Art. 497 – The creditors or assignees of the co-owners may take part in the division of the thing owned in
common and object to its being effected without their concurrence. But they cannot impugn any partition
already executed, unless there has been fraud or in case it was made notwithstanding a formal opposition
presented to prevent it, without prejudice to the right of the debtor or assignor to maintain its validity.
48
 RIGHTS OF EACH
CO-OWNER…
Nothing in this Rule contained shall be construed so as to prejudice,
PROCEDURE IN JUDICIAL defeat, or destroy the right or title of any person claiming the real
TO ASK FOR PARTITION estate involved by title under any other person, or by title paramount to
PARTITION RULE 69, RULES OF COURT the title of the parties among whom the partition may have been made;
nor so as to restrict or prevent persons holding real estate jointly or in
common from making an amicable partition thereof by agreement and
A person files a complaint for action in partition in court, In the suitable instruments of conveyance without recourse to an action (Sec.
complaint, he must indicate the nature and extent of his title and an 12).
adequate description of the real estate. He should include as
defendants all other persons interested in the property (Sec. 1).
If the court finds that the plaintiff has the right thereto, it shall order
The rules also apply to personal property (Sec. 13).
the partition of the real estate among all the parties in interest (Sec.
2).

Before making such partition, the commissioners shall take and If the parties are unable to If the parties agree, they will
subscribe to an oath that they will faithfully perform their duties. The agree, the court shall appoint make the partition among
oath shall be filed in court with the other proceedings in the case. In not more than three (3) themselves by proper
making the partition, the commissioners shall view and examine the competent and disinterested instruments of conveyance,
real estate, after due notice to the parties to attend at such view persons as commissioners to and the court shall confirm it
and examination, and shall hear the parties as to their preference in make the partition, commanding (Sec. 2).
the portion of the property to be set apart to them and the them to set off to the plaintiff
comparative value thereof, and shall set apart the same to the and to each party in interest
parties in lots or parcels as will be most advantageous and such part and proportion of the The partition, together with the
equitable, having due regard to the improvements, situation and property as the court shall direct order of the court confirming
quality of the different parts (Sec. 4). (Sec. 3). the same, shall be recorded in
the registry of deeds of the
place in which the property is
situated (Sec. 2).
When it is made to appear to the commissioners that the real estate, or a portion thereof, cannot be
divided without prejudice to the interests of the parties, the court may order it assigned to one of the
parties willing to take the same, provided he pays to the other parties such amounts as the
The final order may be
commissioners deem equitable, unless one of the interested parties asks that the property be sold instead
appealed by any aggrieved
of being so assigned, in which case the court shall order the commissioners to sell the real estate at
party (Sec. 2).
public sale under such conditions and within such time as the court may determine (Sec. 5).

49
The commissioners shall make a full and accurate report to the court of all their proceedings as to the partition, or the assignment of real
estate to one of the parties, or the sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof on all the
interested parties with notice that they are allowed ten (10) days within which to file objections to the findings of the report, if they so
desire. No proceeding had before or conducted by the commissioners shall pass the title to the property or bind the parties until the court
shall have accepted the report of the commissioners and rendered judgment thereon (Sec 6).

Upon the expiration of the period of ten (10) days, or even before the expiration of In an action for partition in accordance with this Rule, a party
such period but after the interested parties have filed their objections to the report shall recover from another his just share of rents and profits
or their statement of agreement therewith, the court may, upon hearing, accept the received by such other party from the real estate in question,
report and render judgment in accordance therewith; or, for cause shown, and the judgment shall include an allowance for such rents
recommit the same to the commissioners for further report of facts; or set aside and profits (Sec 8).
the report and appoint new commissioners; or accept the report in part and reject it
in part; and may make such order and render such judgment as shall effectuate a
fair and just partition of the real estate, or of its value, if assigned or sold as above The court shall equitably tax and apportion between or
provided, between the several owners thereof (Sec 7). among the parties the costs and expenses which accrue in
the action, including the compensation of the
commissioners, having regard to the interests of the parties,
and execution may issue therefor as in other cases.

NOTE: If actual partition of property is made, the judgment shall state definitely, by metes and bounds and
adequate description, the particular portion of the real estate assigned to each party, and the effect of the
The guardian or guardian ad litem judgment shall be to vest in each party to the action in severalty the portion of the real estate assigned to
of a minor or person judicially him. If the whole property is assigned to one of the parties upon his paying to the others the sum or sums
declared to be incompetent may, ordered by the court, the judgment shall state the fact of such payment and of the assignment of the real
with the approval of the court first estate to the party making the payment, and the effect of the judgment shall be to vest in the party
had, do and perform on behalf of his making the payment the whole of the real estate free from any interest on the part of the other parties to
ward any act, matter, or thing the action. If the property is sold and the sale confirmed by the court, the judgment shall state the name
respecting the partition of real of the purchaser or purchasers and a definite description of the parcels of real estate sold to each
estate, which the minor or person purchaser, and the effect of the judgment shall be to vest the real estate in the purchaser or purchasers
judicially declared to be making the payment or payments, free from the claims of any of the parties to the action. A certified copy
incompetent could do in partition of the judgment shall in either case be recorded in the registry of deeds of the place in which the real
proceedings if he were of age or estate is situated, and the expenses of such recording shall be taxed as part of the costs of the action
competent (Sec 9). (Sec. 11).
50
SPECIAL RULES ON
OWNERSHIP
(CONDOMINIUM)

CONCEPT It is an interest in real property consisting of a separate interest in a unit in a residential,

industrial or commercial building or in an industrial estate and an undivided interest in common,
directly and indirectly, in the land, and in other common areas of the building, in addition, it may
include a separate interest in other portions of the building, (Sec. 2 par. 1, RA NO. 4726). The
common areas including the land, may beheld by a condominium corporation in which of the
separate interests are automatically members/ shares holders in proportion to their interest in
their common areas. The interest in the condominium may be ownership or any other real right
or real property;

ESSENTIAL • The provisions of RA No. 4726 shall apply to property divided or to be divided into
REQUISITES condominium only if there shall be recorded in the Register of Deeds of the province or city in
which the property lies, and duly annotated in the corresponding certificate of title of the land, if
the latter had been patented or registered under either the Land Registration or Cadastral Acts,
an enabling or master deed which shall contain, among others, the following:
a) Description of the land on which the building or buildings and improvements are to be
located;
b) Description of the building or buildings, stating the number of storeys and basement,
the number of units and their accessories, if any;
c) Description of the common areas and facilities;
d) A statement of the exact nature of the interest acquired or to be acquired by the
purchaser in the separate units andin the common areas of the condominium project. Where
title to or the appurtenant interests in the common areas is to be held by a condominium
corporation, a statement to this effect shall be included;
e) State of the purposes for which the building/s and each of the units are intended or
restricted as to use
f) A certificate of the registered owner of the property, if he is other than those executing
the master deed, as well as of all registered holders of any lien or encumbrances on the
property, that they consent to the registration of the deed;
51
ESSENTIAL g) The following plans shall be appended to the deed as integral parts thereof:
REQUISITES
1. A survey plan of the land included in the project, unless a survey plan of the
same property had previously been filed in said office.
2. A diagrammatic floor plan of the building or buildings each unit, its relative
location and approximate dimensions.
h) Any reasonable restriction not contrary to law, morals, or public policy regarding
the right of any condominium owner to alienate or dispose of his condominium.
The enabling or master deed may be amended or revoked upon registration of an
instrument executed by a simple majority of the registered owners of the property:
Provided, That in a condominium project exclusively for either residential or commercial
use, simple majority shall be on a per unit of ownership basis and that in the case of
mixed use, simple majority shall be on a floor area of ownership basis: Provided,
further, That prior notifications to all registered owners shall be submitted to the Housing
and Land Use Regulatory Board and the city/municipal engineer for approval before it
can be registered. Until registration of a revocation, the provisions of this Act shall
continue to apply to such property (Sec. 4) ( as amended by RA 7899 effective March 8,
1995)
• Any transfer or conveyance of a unit or an apartment, office or store or other space
therein, shall include the transfer or conveyance of the undivided interest in the common
areas or in a proper case, the membership or share holdings in the condominium
corporation: Provided, however, That where the common areas in the condominium
project are held by the owners of separate units as co-owners hereof, no condominium
unit therein shall be conveyed or transferred to persons other than Filipino citizens or
corporation at least 60% of the capital stock of which belong to Filipino citizens, except in
cases of hereditary succession. Where the common areas in a condominium

52
ESSENTIAL project are held by a corporation, no transfer or conveyance of a unit shall be valid if the
REQUISITES concomitant transfer of the appurtenant membership or stockholding in the corporation
will cause the alien interest in such corporation to exceed the limits imposed by existing
laws.

INCIDENTS OF A Unless otherwise expressly provided in the enabling or master deed or the declaration of
CONDOMINUM restrictions, the incidents of a condominium grant are as follows:
GRANT, RIGHTS AND a) the boundary of the unit granted are the interior surfaces of the perimeter
OBLIGATIONS OF walls, floors, ceiling, windows and doors thereof: Provided, that in the case of an
CONDOMINIUM industrial estate condominium projects, wherein whole buildings, plants or factories may
OWNER be considered as unit defined under section 3 (b) hereof, the boundary of a unit shall
include the outersurfaces of the perimeter walls of said buildings, plants or factories. The
following are not part of the unit: bearing walls, columns, floors, roofs, foundations, and
other common structural elements of the buildings; lobbies, stairways, hall ways and
other areas of common use, elevator equipment and shafts, central heating, central
refrigeration and central air conditioning equipment, reservoir, tanks, pumps and other
central services and facilities, pipes, ducts, flues, chutes, conduits wires and other utility
installations, wherever located, except the outlets thereof when located within the unit.
b) There shall pass with the unit, as an appurtenant thereof, an exclusive
casement for the use of the air space encompassed by the boundaries of the unit as it
exists at any particular time and as the unit may lawfully be altered or reconstructed from
time to time. Such easement shall be automatically terminated in any air space upon
destruction of the units as to render it untenantable.
c) Unless otherwise provided, the common areas are held in common by the
holders of units, in equal share one for each unit.

53
 d) A non-exclusive easement for ingress, egress and support through the common areas
is appurtenant to each unit and the common areas are subject to such easement.
e) Each condominium owner shall have the exclusive right to paint, repaint, tile, wax,
INCIDENTS OF A paper or otherwise refinish and decorate the inner surfaces of the walls, ceilings, floors, windows
CONDOMINIUM and doors hounding his own unit: provided, that in the case of an industrial estate condominium
GRANT, RIGHTS AND unit, such right may be exercised over the external surfaces of the said unit.
OBLIGATIONS OF f) Each condominium owner shall have the exclusive right to mortgage, pledge or
CONDOMINIUM encumber his condominium and to have the same appraised independently of the other
OWNER condominium, but any obligation incurred by such condominium owner is personal to him.
g) Each condominium owner has also the absolute right to sell or dispose of his
condominium unless the master deed contains a requirements that the property be first offered to
the condominium owners within a reasonable period of time before the same is offered to outside
parties (Sec 6).

The owner of a project shall, prior to the conveyance of any condominium, register a declaration of
restrictions relating to such project, which restrictions shall constitute a lien upon each
condominium in the project, and shall insure to and bind all condominium owners in the project.
DECLARATION OF Such liens, unless otherwise provided, may be enforced by any condominium owner in the project
RESTRICTIONS – or by the management body. The Register of Deeds shall enter and annotate the declaration of
Essentially provides for restrictions upon the certificate of title (Sec 9).
rules governing the running
of the common areas, e.g. Declaration of Restrictions may, among other things, also provide:
quorum of meetings, voting (a) for the powers and functions of the management body
majorities, etc. (b) for the manner and procedure for amending the declaration of restrictions
(c) for independent audit of the accounts of management body
(d) for reasonable assessments to meet authorized expenditures, each condominium unit being
assessed separately in proportional to unit owners’ fractional interest in common areas
(e) for subordination of the liens securing such assessments to other liens, either generally or
specifically described
(f) for conditions other than grounds provided in Secs. 8 and 13 upon which partition may be made

a) That three years after damage or destruction to the project which renders material part thereof
unfit for its use prior thereto, the project has not been rebuilt or repaired substantially to its state
SPECIAL GROUNDS
prior to its damage or destruction, or
FOR PARTITION
b) That damage or destruction to the project has rendered one-half or more of the units therein
untenantable and that condominium owners holding in aggregate more than thirty percent interest
54
in the common areas are opposed to repair or restoration of the project;
SPECIAL GROUNDS (c) That the project has been in existence in excess of fifty years, that it is obsolete and
FOR PARTITION uneconomic, and that condominium owners holding in aggregate more than fifty percent
interest in the common areas are opposed to repair or restoration or remodeling or
modernizing of the project; or
(d) That the project or a material part thereof has been condemned or expropriated and
that the project is no longer viable, or that the condominium owners holding in aggregate
more than seventy percent interest in the common areas are opposed to continuation of
the condominium regime after expropriation or condemnation of a material portion thereof;
or
(e) That the conditions for such partition by sale set forth in the declaration of restrictions,
duly registered in accordance with the terms of this Act, have been met (Sec 8).

PD 957 SUBDIVISION The owner or the real estate dealer interested in the sale of lots or units,
AND CONDOMINIUM respectively, in such subdivision project or condominium project shall register the
BUYERS’ project with the Authority by filing therewith a sworn registration statement
PROTECTION containing the following information:
a) Name of the owner;
b) The location of the owner's principal business office, and if the owner is a non-
resident Filipino, the name and address of his agent or representative in the
Philippines is authorized to receive notice;
c) The names and addresses of all the directors and officers of the business firm, if
the owner be a corporation, association, trust, or other entity, and of all the
partners, if it be a partnership;
d) The general character of the business actually transacted or to be transacted by
the owner; and
e) A statement of the capitalization of the owner, including the authorized and
outstanding amounts of its capital stock and the proportion thereof which is paid-up
(Sec 4).

55
PD 957 SUBDIVISION The following documents shall be attached to the registration statement:
AND CONDOMINIUM a) A copy of the subdivision plan or condominium plan as approved in accordance
BUYERS’ with the first and second paragraphs of this section.
PROTECTION b) A copy of any circular, prospectus, brochure, advertisement, letter, or
communication to be used for the public offering of the subdivision lots or
condominium units;
c) In case of a business firm, a balance sheet showing the amount and general
character of its assets and liabilities and a copy of its articles of incorporation or
articles of partnership or association, as the case may be, with all the amendments
thereof and existing by-laws or instruments corresponding thereto.
d) A title to the property which is free from all liens and encumbrances: Provided,
however, that in case any subdivision lot or condominium unit is mortgaged, it is
sufficient if the instrument of mortgage contains a stipulation that the mortgagee
shall release the mortgage on any subdivision lot or condominium unit as soon as
the full purchase price for the same is paid by the buyer.
e) The person filing the registration statement shall pay the registration fees
prescribed therefore by the Authority.
f) Thereupon, the Authority shall immediately cause to be published a notice of the
filing of the registration statement at the expense of the applicant-owner or dealer,
in two newspapers general circulation, one published in English and another in
Pilipino, once a week for two consecutive weeks, reciting that a registration
statement for the sale of subdivision lots or condominium units has been filed in the
National Housing Authority; that the aforesaid registration statement, as well as the
papers attached thereto, are open to inspection during business hours by
interested parties, under such regulations as the Authority may impose; and that
copies thereof shall be furnished to any party upon payment of the proper fees.
g) The subdivision project of the condominium project shall be deemed registered
upon completion of the above publication requirement. The fact of such registration
shall be evidenced by a registration certificate to be issued to the applicant-owner
or dealer (Sec 4).
56
PD 957 SUBDIVISION License to sell. - Such owner or dealer to whom has been issued a registration certificate shall
AND CONDOMINIUM not, however, be authorized to sell any subdivision lot or condominium unit in the registered
BUYERS’ project unless he shall have first obtained a license to sell the project within two weeks from the
PROTECTION registration of such project.
The Authority, upon proper application therefore, shall issue to such owner or dealer of a
registered project a license to sell the project if, after an examination of the registration
statement filed by said owner or dealer and all the pertinent documents attached thereto,
he is convinced that the owner or dealer is of good repute, that his business is financially
stable, and that the proposed sale of the subdivision lots or condominium units to the
public would not be fraudulent (Sec 5).

Exempt Transactions. - A license to sell and performance bond shall not be required in any
of the following transactions:
a) Sale of a subdivision lot resulting from the partition of land among co-owners and co-
heirs.
b) Sale or transfer of a subdivision lot by the original purchaser thereof and any
subsequent sale of the same lot.
c) Sale of a subdivision lot or a condominium unit by or for the account of a mortgagee in
the ordinary course of business when necessary to liquidate a bona fide debt (Sec 7).

No mortgage on any unit or lot shall be made by the owner or developer without prior written
approval of the Authority. Such approval shall not be granted unless it is shown that the proceeds
Sec. 18. Mortgages - of the mortgage loan shall be used for the development of the condominium/ subdivision project
and effective measures have been provided to ensure such utilization. The loan value of each
lot/unit covered by the mortgage shall be determined and the buyer thereof, if any, shall be
notified before the release of the loan. The buyer may, at his option, pay his installment for the lot
or unit directly to the mortgagee who shall apply the payments to the corresponding mortgage
indebtedness secured by the particular lot or unit being paid for, with a view to enabling said buyer
to obtain title over the lot or unit promptly after full payment thereof.

57
Sec. 19. 2nd par. The owner or developer shall be answerable and liable for the facilities, improvements,
Liability by infrastructures or other forms of development represented or promised in brochures,
representation in advertisements, and other sales propaganda disseminated by the owner or developer or
brochures, his agents and the same shall form part of the sales warranties enforceable against said
owner or developer, jointly and severally. Failure to comply with these warranties shall
advertisements, etc. -
also be punishable in accordance with the penalties provided for in this decree.

Sec. 20. Time of Every owner or developer shall construct and provide the facilities/improvements/infrastructures
Completion - and other forms of development, including water supply and lighting facilities, which are offered
and indicated in the approves subdivision or condominium plans/brochures/prospectus/printed
matters/letters in any form of advertisement, within one year from the date of the issuance of the
license for the subdivision or condominium project or such other period of time as may be fixed by
the Authority.
Sec. 23. Non- No installment payment made by a buyer in a subdivision or condominium project for the lot or unit
Forfeiture of he contracted to buy shall be forfeited in favor of the owner or developer when the buyer, after due
Payments - notice to the owner or developer, desists from further payment due to the failure of the owner or
developer to develop the subdivision or condominium project according to the approved plans and
within the time limit for complying with the same. Such buyer may, at his option, be reimbursed the
total amount paid including amortization interests but excluding delinquency interests, with interest
thereon at the legal rate.

Sec. 29 Right of The owner or developer of a subdivision without access to any existing public road or street must
Way to Public Road- secure a right of way to a public road or street and such right of way must be developed and
maintained according to the requirement of the government and the authorities concerned.

Sec. 31 Donation of The registered owner or developer of the subdivision or condominium project, upon completion of
Roads and Open the development of said project may, at his option, convey by way of donation when the roads and
Spaces to Local open spaces found within the project to the city/municipality wherein project is located. Upon
Government - acceptance of the donation by the city/municipality concerned, no portion of the area donated
shall thereafter be converted to any other purpose or purposes unless after hearing, the proposed
conversion is approved by the Authority.

58
Sec. 32. Phases For purposes of complying with the provisions of this
of Subdivision - Decree, the owner or developer may divide the
development and sale of the subdivision into phases,
each phase to cover not less than ten hectares. The
requirement imposed by this Decree on the
subdivision as a whole shall be deemed imposed on
each phase.

The Authority may take over or cause the

Sec. 35. Take- development and completion of the subdivision or
over
Development -
condominium project at the expenses of the owner or
developer, jointly and severally, in cases where the
owner or developer has refused or failed to develop
or complete the development of the project as
provided for in this Decree.

The Authority may, after such take-over, demand,

collect and receive from the buyers the installment
payments due on the lots, which shall be utilized for
the development of the subdivision.
59
RA 6552 Sec 3. In all transactions or contracts, involving the sale or financing of real estate on
REALTY installment payments, including residential condominium apartments but excluding
INSTALLMENT industrial lots, commercial buildings and sales to tenants under Republic Act 3844 as
BUYER amended by Republic Act 6389, where the buyer has paid at least two years of
PROTECTION ACT installments, the buyer is entitled to the following rights in case he defaults in the
payment of succeeding installments:
(a) To pay, without additional interest, the unpaid installments due within the total grace
period for every one year of installment payments made; provided, That this right shall be
exercised by the Buyer only once in every five years of the life of the contract and its
extensions, if any.
(b) If the contract is cancelled, the seller shall refund to the buyer the cash surrender
value of the payments on the property equivalent to fifty percent of the total payments
made and, after five years of installments, an additional five per cent every year but not to
exceed ninety per cent of the total payments made; provided, that the actual cancellation
or the demand for rescission of the contract by a notarial act and upon full payment of the
cash surrender value to the buyer. Down payments, deposits or options on the contract
shall be included in the computation of the total number of installment payments made.
Sec 4. In case where less than two years of installments were paid the seller shall give
the buyers a grace period of not less than sixty days from the date the installment
become due. If the buyer fails to pay the installments due at the expiration of the grace
period, the seller may cancel the contract after thirty days from receipt by the buyer of the
notice of cancellation or the demand for rescission of the contract by a notarial act.
Sec 5. Under Section 3 and 4, the buyer shall have the right to sell his rights or assign the
same to another person or to reinstate the contract by updating the account during the
grace period and before actual cancellation of the contract. The deed of sale or
assignment shall be done by notarial act.
Sec 6. The buyer shall have the right to pay in advance any installments or the full unpaid
balance of the purchase price any time without interest and to have such full payment of
the purchase price annotated in the certificate of title covering the property.
Sec 7. Any stipulation in any contract hereafter entered into contrary to the provisions of
Sections 3, 4, 5 and 6, shall be null and void. 60
LEGAL
IMPLICATIONS OF A
CO-OWNER’S IDEAL
SHARE

EACH CO-OWNER To share in the fruits and benefits.

HAS THE RIGHT

To alienate, mortgage, or encumber and dispose of his ideal

share (but in case ideal share is sold to a third person, other
co-owners may exercise right of legal redemption.

To substitute another person in the enjoyment of the thing.

To renounce part of his interest to reimburse necessary

expenses incurred by another co-owner (Art. 488)

EFFECT OF SUCH Limited to his share in the partition

TRANSACTION BY
EACH CO-OWNER
Transferee does not acquire any specific portion of whole
property until partition.

EXTINGUISHMENT
OF CO-OWNERSHIP TOTAL MERGER OF ALL ACQUISITIVE By a third person
DESTRUCTION OF INTERESTS IN ONE PRESCRIPTION
THING PERSON
By one co-owner as
against the other co-
1. Unequivocal acts of repudiation of co-ownership (acts amounting to ouster of other co-owners) known to
owners
other co-owners and shown by clear and convincing evidence.
2. Open and adverse possession, not mere silent possession for the required period of extraordinary
acquisitive prescription.
3. The presumption is that possession by co-owner is not adverse. 61
 Prof. Eduardo A. Labitag

WATER CODE (PD 1067)

Waters, as used in this Code, refers to water under the

DEFINITION
ground, water above the ground, water in the
atmosphere and the waters of the sea within the
territorial jurisdiction of the Philippines. (Art. 4)

The objectives of this Code are:

a.To establish the basic principles and framework relating to
the appropriation, control and conservation of water resources
to achieve the optimum development and rational utilization of
these resources;
b.To define the extent of the rights and obligation of water
users and owners including the protection and regulation of
such rights;
OBJECTIVES c.To adopt a basic law governing the ownership,
OF THE CODE appropriation, utilization, exploitation, development,
conservation and protection of water resources and rights to
land related thereto; and
d.To identify the administrative agencies which will enforce
this Code (Art. 2)

62
 The underlying principles of this Code are:
a.All waters belong to the State.
b.All waters that belong to the state can not be
the subject to acquisitive prescription.
c.The State may allow the use or development of
waters by administration concession.
d.The utilization, exploitation, development,
PRINCIPLES conservation and protection of water resources
shall be subject to the control and regulation of
the government through the National Water
Resources Council, hereinafter referred to as the
Council.
e.Preference in the use and development of
waters shall consider current usages and be
responsive to the changing needs of the country
(Art. 3).
63
 Prof. Eduardo A. Labitag

WATER CODE (PD 1067)

OWNERSHIP a. Rivers and their natural beds;

OF WATERS b. Continuous or intermittent waters of
springs and brooks running in their natural
The following beds and the beds themselves
belong to the c. Natural lakes and lagoons;
State: d. All other categories of surface waters such
as water flowing over lands, water form
rainfall whether natural or artificial, and water
from agriculture runoff, seepage and
drainage;
e. Atmospheric water;
f. Subterranean or ground water; and
g. Seawater (Art. 5)

64
WATER CODE (PD 1067)

OWNERSHIP OF WATERS

a. Continuous or intermittent waters

The following rising on such lands;
waters found on b. Lakes and lagoons naturally waters
private lands also rising on such lands;
belong to the
c. Rain water and falling on such
State:
lands;
d. Subterranean or ground waters;
and,
e. Waters in swamps and marshes.
(Art. 6)

NOTE: Art. 502 of the NCC is amended by Arts. 5 and 6 of PD 1067 (Water Code). Also, Art.
503, NCC which lists waters considered of private ownership is repealed since under Art. 3 of
PD 1067 it states that “All waters belong to the State.”
65
 Prof. Eduardo A. Labitag

WATER CODE (PD 1067)

APPROPRIATION
OF WATERS Appropriation of water, as used in this Code, is the acquisition of rights over the use of
waters or the taking or diverting of waters from a natural source in the manner and for any
Definition purpose allowed by law. (Art. 9)

Water may be appropriated for the following purposes (Art. 10):

a. Domestic
Use b. Municipal
c. Irrigation
d. Power generation
e. Fisheries
f. Livestock raising
g. Industrial
h. Recreational and
i. Other purposes
NOTE:
1. Art. 504, NCC on the use of public waters is repealed by Art. 10 of PD 1067.
2. The list above is the same order of preference in the use of water (Art. 95, par. 2).

NOTE: The State, for reasons of public policy, may declare waters not previously
appropriated, in whole or in part, exempt from appropriation for any or all purposes
and, thereupon, such waters may not be appropriated for those purposes. (Art. 11)

The measure and limit of appropriation of water shall be beneficial use.

Limits
Beneficial use of water is the utilization of water in the right amount during the period that
the water is needed for producing the benefits for which the water is appropriated. (Art. 20)

66
 Prof. Eduardo A. Labitag

WATER CODE (PD 1067)

WATER RIGHTS

Water rights is the privilege granted by the

Definition government to appropriate and use water. (Art. 13)

Transfer of Water rights may be lent or transferred in whole or in

Water Rights part to another person with prior approval of the
Council, after due notice and hearing. (Art. 19)

NOTE: The right to the use of water is deemed

acquired as of the date of filing the application for a
water permit in case of approved permits, or as of
the date of actual use in case where no permit is
required (Art. 17)
67
WATER CODE (PD 1067)

WATER PERMIT Except as otherwise herein provided, no person, including

government instrumentalities or government-owned or
controlled corporations, shall appropriate water without a
Definition water right, which shall be evidenced by a document
known as a water permit. (Art. 13)

EXCEPTIONS to water permit:

a. Appropriation of water by means of hand carried
receptacles; and
b. Bathing or washing, watering or dipping of domestic or
farm animals, and navigation of watercrafts or
transportation of logs and other objects by flotation.

Only citizens of the Philippines, of legal age, as well as

Who May Apply juridical persons, who are duly qualified by law to exploit
and develop water resources, may apply for water
permits. (Art. 15)

68
 Prof. Eduardo A. Labitag

WATER CODE (PD 1067)

WATER PERMIT

Water permits shall continue to be valid as long as

water is beneficially used; however, it may be
suspended on the grounds of:
1. non-compliance with approved plans and
specifications or schedules of water distribution,
Suspension
2. use of water for a purpose other than that for which it
was granted,
3. non-payment of water charges, wastage
4. failure to keep records of water diversion, when
required
5. violation of any term or condition of any permit or of
rules and regulations promulgated by the Council (Art.
28)

69
WATER CODE (PD 1067)

WATER PERMIT

After due notice and hearing, water permits may be

revoked on the following grounds:
1. non-use,
Revocation 2. gross violation of the conditions imposed on the permits,
3. unauthorized sale of water,
4. willful failure or refusal to comply with rules and
regulations or any lawful order,
5. pollution, public nuisance or acts detrimental to public
health and safety
6. when appropriator is found to be disqualified under the
law to exploit and develop natural resources of the
Philippines
7. in case of irrigation, the land is converted to non-
agricultural purposes
8. other similar grounds (Art. 29)

70
WATER CODE (PD 1067)

WATER PERMIT

A holder of a water permit may demand the establishment of

easements necessary for the construction and maintenance of the
works and facilities needed for the beneficial use of the waters to
Easements be appropriated subject to the requirements of just compensation
and the following conditions:
1. That he is the owner, lessee, mortgage or one having real right
over the land upon which he purposes to use the water; and
2. That the proposed easement is the most convenient and the
least onerous to the servient estate (Art. 25).

The banks or rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of:
• 3 meters in urban areas
• 20 meters in agricultural areas
• 40 meters in forest areas
- along their margins, are subject to the easement of public use in
the interest of recreation, navigation, flotage, fishing and salvage.

71
WATER CODE (PD 1067

UTILIZATION OF Control area is an area of land where subterranean or

WATERS ground water and surface water are so interrelated that
withdrawal and use in one similarly affects the other. The
boundary of a control area may be altered from time to time,
as circumstances warrant. (Art. 32)

NOTE:
1. Water contained in open canals, aqueducts or reservoirs of private persons may be used by any person for
domestic purpose or for watering plants as long as the water withdrawn by manual methods without checking
the stream or damaging the canal, aqueduct or reservoir; Provided, That this right may be restricted by the
owner should it result in loss or injury to him. (Art. 33)

2. When the reuse of waste water is feasible, it shall limited as much as possible to such uses other than direct
human consumption. No person or agency shall distribute such water for public consumption until it is
demonstrated that such consumption will not adversely affect the health and safety of the public. (Art. 36)

3. In the construction and operation of hydraulic works, due consideration shall be given to the preservation of
scenic places and historical relics and in addition to the provisions of existing laws, no works that would require
the destruction and removal of such places or relics shall be undertaken without showing that the destruction
or removal is necessary and unavoidable (Art. 37).

4. Unless otherwise ordered by the President of the Philippines and only in times of national calamity or
emergency, no person shall induce or restrain rainfall by any method such as cloud seeding without a permit
from the proper government agency. (Art. 42)

72
 Prof. Eduardo A. Labitag

WATER CODE (PD 1067)

CONTROL OF The rules concerning flood areas are:

WATERS 1. The Sec. of DPWH may declare flood control areas and promulgate guidelines for
governing flood plain management plans (Art. 53).
2. Such rules and regulations may prohibit or control activities that may damage or cause
Rules on Flood deterioration of lakes and dikes, obstruct the flow of water, change the natural flow of the
Areas river, increase flood losses or aggravate flood problems (Art. 54).
3. The Government may construct necessary flood control structures in declared flood
control areas, and for this purpose it shall have legal easement as wide as may be needed
along and adjacent to the river bank and outside the bed or channel of the river (Art. 55).

NOTE:
1. A person may erect levees or revetments to protect his property from flood,
encroachment by the river or change in the course of river, provided that such
constructions do not cause damage to the property of another (Art. 57).
2. A landowner may not compel the Government to restore the river to its former
bed. Also, a landowner may not restrain the Government from taking steps to revert
the river or stream to its former course. However, the owner of the land may
undertake to return the river of stream to its old bed at his expense provided that a
permit therefore is secured form the Sec. of DPWH and work thereof is
commenced within 2 years from the changes in the course of the river or stream
(Art. 58).

WATER POLLUTION Water pollution is the impairment of the quality of water beyond a certain standard set by
the National Pollution Control Commission (NPCC) (Art. 75, par. 2).

73
 Prof. Eduardo A. Labitag

POSSESSION
DEFINITION • It is the holding of a thing or the enjoyment of a right, whether by material occupation
or by the fact that the thing or the right is subjected to the action of our will.
• It is a real right independent of and apart from ownership i.e., the right of possession
(jus possessionis) as distinguished from the right to possess (jus possidendi).

ESSENTIAL Holding or control of a thing or right (corpus) consists of either

REQUISITES

1. The material or physical

2. Exercise of a right
3. Constructive holding

Intention to possess (animus possidendi)

DEGREES OF 1st degree: Mere holding or possession without title whatsoever and in
HOLDING OR violation of the right of the owner, e.g., possession of a thief or a usurper of
POSSESSION land

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

3rd degree: Possession with just title or title sufficient to transfer ownership,
but did not proceed from the true owner, e.g., possession of a vendee from
vendor who pretends to be the owner.

4th degree: Possession with just title from the true owner. The delivery of
74
possession transfers ownership, and strictly speaking, is the jus possidendi.
CASES OF Possession for oneself or possession exercised in one’s own name, and
POSSESSION possession in the name of another (Art. 524).

Possession in the concept of an owner, and possession in the concept of

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

Possession in good faith (which happens when a person is not aware that
there exists in his title or mode of acquisition any flaw which invalidates it)
and possession in bad faith (awareness of the flaw).
Mistake upon a doubtful or difficult question of law may be the basis of
good faith (Art. 526).

WHAT THINGS OR Only things or rights susceptible of appropriation may be the object of
RIGHTS MAY BE possession (Art. 530).
POSSESSED?

WHAT THINGS OR Res communes

RIGHTS MAY NOT BE
POSSESSED? Property of public dominion

Right under discontinuous and/or non-apparent easement

ACQUISITION OF
POSSESSION

WAYS OF • MATERIAL OCCUPATION OF THE THING

ACQUIRING i) The doctrine of constructive possession
POSSESSION (Art. ii) includes constructive delivery
531) 1. TRADITIO BREVI MANU (things already in transferee’s hands, e.g.,
under a contract of lease, then delivered under a sale)
2. TRADITIO CONSTITUTUM POSSESSORIUM (thing remains in transferor’s
hands, e.g., sale, then retained under a commodatum)
75
ACQUISITION OF
POSSESSION

WAYS OF B. SUBJECTION TO THE ACTION OF OUR WILL

ACQUIRING… i) Includes traditio longa manu and traditio simbolica

C. PROPER ACTS AND LEGAL FORMALITIES

Refers to the acquisition of possession by sufficient title, inter vivos or mortis causa,
lucrative or onerous.
Examples: Donations, succession (testate or intestate), contracts, judicial writs of
possession, writ of execution of judgments, execution and registration of public
instruments

• By same person; elements of personal acquisition

BY WHOM
• By his legal representative
POSSESSION MAY
• By his agent
BE ACQUIRED
• By any person without any power whatsoever but subject to ratification, without
prejudice to proper case of negotiorum gestio (Art. 2144, 4129, 2150).
• Qualifiedly, minors and incapacitated persons, but they should be assisted by their legal
representative in order to exercise rights arising from possession. (Art. 535).

WHAT DO NOT • Acts merely tolerated

AFFECT • Acts executed clandestinely and without the knowledge of the possessor
POSSESSION (Arts. • Acts done through violence as long as possessor objects thereto, i.e., he files a case
537, 1119) (Art. 537).

GENERAL RULE: Possession cannot be recognized in two different personalities, except

RULES TO SOLVE in cases of co-possession by co-possessors without conflicting claims or interest.
CONFLICT OF In case of conflicting possession, preference is given to:
POSSESSION (Art. • Present possessor or actual possessor
538) • If there are two or more possessors, the one longer in possession
• If dates of possession are the same, the one who presents a title
• If all conditions are equal, the thing shall be placed in judicial deposit pending
determination of possession or ownership through proper proceedings.

76
EFFECTS OF
POSSESSION
In general, every possessor has a right to be respected in his
RIGHT TO BE possession; if disturbed therein, possessor has a right to be
RESPECTED protected in or restored to said possession (Art. 539).
IN HIS 1. ACTIONS TO RECOVER POSSESSION
POSSESSION i. Summary proceedings – forcible entry and unlawful
detainer. Plaintiff may ask for writ of preliminary mandatory
injunction (within 10 days from filing of complaint for forcible entry,
Art. 539). Also, Art. 1674: In ejectment cases where an appeal
is taken the remedy granted in Article 539, second
paragraph, shall also apply, if the higher court is satisfied that the
lessee's appeal is frivolous or dilatory, or that the lessor's
appeal is prima facie meritorious. The period of ten days
referred to in said article shall be counted from the time the appeal
is perfected.
ii. Acción publiciana (superior right of possession, not of
ownership). NOTE: Possession with a real right cannot file an
accion reivindicatoria.
iii. Action for replevin (possession and ownership of movable
property)
iv. Lawful possessor can also employ self-help (Art. 429).

77
EFFECTS OF
POSSESSION A. FRUITS GATHERED OR SEVERED
POSSESSOR IN GOOD FAITH – He makes the fruits his own
until possession is legally interrupted (Art. 544).
ENTITLEMENT POSSSESSOR IN BAD FAITH – He must pay not only for the
TO FRUITS fruits received but also those that the owner might have received
had he been in possession (Art. 549) less the expenses of
production, gathering and preservation of fruits (Art. 443). Also,
reimbursement for necessary expenses (Art. 546 par. 1).
B. FRUITS PENDING OR UNGATHERED BY
POSSESSOR IN GOOD FAITH TURNED BAD FAITH – is
entitled to the following (Art. 545):
For natural or industrial fruits:
1. Right to a part of cultivation expenses and
2. Right to a part of net harvest, both t in proportion to the time
of possession (on the basis of the agricultural year.)
For civil fruits:
3. Prorating on daily basis of civil fruits and charges (includes
all kinds of taxes, pensions for annuities, interest on
mortgages, etc.)
4. Owner’s option: 1) To permit the possessor in good faith to
finish cultivation and the collection of fruits in lieu of indemnity.
If latter refuses this concession, he loses right to indemnity in
any other matter (Art. 545 par. 3).
POSSESSOR IN BAD FAITH – loses the pending fruits and the
expenses of cultivation (Art. 449)
78
EFFECTS OF
POSSESSION

REIMBURSEMENT A. NECESSARY EXPENSES (needed for the preservation of the property,

FOR EXPENSES
without which the thing would physically deteriorate or be lost).
1. Any possessor (in good or in bad faith) is entitled to reimbursement (Art.
546).
2. Only the possessor in good faith is entitled to right of retention.
N.B.: Taxes are charges, not necessary expenses (Cabigao v. Valencia, 53
Phil. 646).
B. USEFUL EXPENSES (increase the productivity or raise the value for
every subsequent possessor, e.g., an irrigation system).
POSSESSOR IN GOOD FAITH - If owner chooses to acquire
improvements, he must reimburse possessor the useful expenses (Art. 546).
Manner of reimbursement: the owner has the option to 1) pay the original
cost of the improvement or 2) pay the increase in the value (“plus value’) of
property due to the improvement.
But the possessor in good faith is entitled to 1) right of retention until paid
or 2) to remove the improvements, if it can be without damage to the
principal, unless owner chooses to acquire it upon payment of plus value or
amount expended is made (Art. 547).
POSSESSOR IN BAD FAITH - He loses the improvements without
reimbursement (Art. 449). Improvements made by the purchaser in
execution sale during the one-year period of redemption (Flores v. Lim, 50
Phil. 738) with intent to prevent redemption, come under this rule. Also, by
purchaser of homestead within the 5-year prohibited period once notified of
the redemption (Felices v. Iriola, 103 Phil. 125)

79
EFFECTS OF POSSESSION

REIMBURSEMENT C. ORNAMENTAL (pure luxury or mere pleasure) EXPENSES

FOR EXPENSES (which add to the value of the thing only for certain types of
persons, but not others, Art. 548).
POSSESSOR IN GOOD FAITH – He has no right to
reimbursement. Possessor has option to remove if principal thing
suffers no injury, unless owner chooses to pay amount expended
(Art. 548). The owner has the option to either 1) retain the
ornament by refunding the amount spent or 2) permit the
possessor to remove the ornament provided the principal thing is
not injured (to the extent of impairing its value or of requiring more
than minor repairs).
POSSESSOR IN BAD FAITH – He has no right to
reimbursement. But has limited right of removal, unless owner
chooses to acquire ornament by paying its value at time he enters
possession (Art. 549). The owner may choose any of these
options.
D. USEFUL IMPROVEMENTS NO LONGER EXISTING – No
reimbursement (Art. 553).
E. NECESSARY EXPENSES – Even if unsuccessful or no longer
existing, must be reimbursed.
F. IMPROVEMENTS DUE TO NATURE OR TO TIME – No
reimbursement. They accrue to the benefit of the lawful possessor
(Art. 551).

80
EFFECTS OF
POSSESSION

A. A POSSESSOR IN GOOD FAITH – He is not liable for deterioration

or loss unless acting with fraudulent intent or negligence, after
RESPONSIBILITY
summons.
FOR LOSS
B. POSSESSOR IN BAD FAITH – He answers for the loss or
deterioration even if due to force majeure (Art. 552, par. 2).

IN THE CONCEPT Possession may by lapse of time ripen into full ownership, subject to certain
OF OWNER exceptions.
• Presumption of just title and possessor cannot be obliged to show or prove it (Art.
541); exception (Art. 1131).
• Possessor may bring all actions necessary to protect his possession except acción
reivindicatoria.
• May employ self-help under Art. 429, if a lawful possessor
• Possessor may ask for inscription of such real right of possession in the Registry of
Property.
• Has right to the fruits and reimbursement of expenses (assuming he is a possessor
in good faith)
• Upon recovery of possession of which he has been unlawfully deprived he may
demand the fruits and damages.
• Generally, he can do on the things possessed everything that the law authorizes an
owner to do until he is ousted by one who has a better right.
• Possession in good faith (possessor is not aware that there exists in his title or
mode of acquisition any flaws, which invalidates his title or mode) and possession in
bad faith (Art. 526, par. 1 and 2). Mistake upon a doubtful or difficult question of law
can be a basis of good faith (Art. 526, par. 3)
81
EFFECTS OF POSSESSION

Possessor has actual title which is

defeasible only by true owner
POSSESSION OF MOVABLE • One who has lost a movable or has
ACQUIRED IN GOOD FAITH IS
EQUIVALENT TO TITLE been unlawfully deprived thereof may
recover it without reimbursement,
except if possessor acquired it at a
public sale.

82
PRESUMPTIONS IN
FAVOR OF
POSSESSOR

GOOD FAITH UNTIL

Party who alleges bad faith must prove it.
CONTRARY IS PROVED
(Art. 527).
Art. 528 – Possession acquired in good faith does not lose his character
CONTINUITY OF INITIAL except in the case and from the moment facts exist which show that the
GOOD FAITH possessor is not unaware that he possesses the thing improperly or
wrongfully.

Art. 529 – It is presumed that possession continues to be enjoyed

ENJOYMENT OF
in the same character in which it was acquired, until the contrary
POSSESSION IN SAME
is proved.
CHARACTER

NON-INTERRUPTION OF Art. 554 – A presenty possessor who shows his possession at

POSSESSION some previous time is presumed to have held possession also
during the intermediate period, in the absence of proof to the
contrary (see Arts. 1120 – 1124).

CONTINUITY OF POSSESSION Art. 1138 par. 2 – It is presumed that the present possessor who was also
the possessor at a previous time, has continued to be in possession
during the intervening time, unless there is proof to the contrary.

TACKING OF POSSESSION

83
PRESUMPTIONS IN
FAVOR OF
POSSESSOR

CONTINUITY OF
POSSESSION Art. 1138 par. 2 – It is presumed that the present
possessor who was also the possessor at a
previous time, has continued to be in possession
during the intervening time, unless there is proof to
the contrary.

TACKING OF Art. 1138 par. 1 – The present possessor may

POSSESSION complete the period necessary for prescription by
tacking his possession to that of his grantor or
predecessor in interest.

• Extension of possession of real property to all

movables contained therein so long as it is not
OTHER
shown that they should be excluded (art. 542);
PRESUMPTIONS WITH
exceptions: law or individual declaration (Art. 426).
RESPECT TO SPECIFIC
• Non-interruption of possession of hereditary
PROPERTIES OF
property (Arts. 533 and 1078)
PROPERTY RIGHTS
• Just title in favor of possessor in concept of
owner (Art. 541, but see Art. 1131)
84
LOSS OF
POSSESSION (Art.
555)

ABANDONMENT
It is the loss of hope and intent to recover the thing.

ASSIGNMENT TO It may be onerous or gratuitous.

ANOTHER

DESTRUCTION, TOTAL LOSS

OR THING GOES OUT OF
COMMERCE
But Art. 537 provides: Acts merely tolerated, and those
executed clandestinely and without the knowledge of the
POSSESSION BY ANOTHER, possessor of a thing, or by violence, do not affect
IF POSSESSION HAS possession.
LASTED MORE THAN A • Tolerance means permission, express or implied. Silence
YEAR, REAL RIGHT OF or inaction is not tolerance but negligence and will not bar
POSSESSION NOT LOST adverse possession (Manresa), unless construed as
UNTIL AFTER 10 YEARS abandonment of possession, or unless the court applies
estoppel against the plaintiff-possessor
EFFECT OF RECOVERY: The possessor who recovers
possession is considered as having had uninterrupted
possession despite these acts of violence, stealth or
tolerance; but he must recover possession by due process
and not otherwise (Arts. 561, 536, 539)

85
 Prof. Eduardo A. Labitag

USUFRUCT
It is a real right, temporary in character, that authorizes the holder to enjoy all advantages
DEFINITION derived from a normal exploitation of another’s property, according to its destination or purpose,
and imposes the obligation of restoring, at the time specified, either the thing itself or its
equivalent (De Buen).

CHARACTERISTICS • Real right

• Temporary duration
• Derivation of all advantages from the thing due to normal exploitation

COMPARED WITH AS TO THE OBJECT Usufruct may involve real or personal property whether corporeal or
SERVITUDES incorporeal; servitudes may only involve real property by nature under
Art. 415 (1) and (8).
BY THE EXTENT OF
ENJOYMENT
Usufruct covers all the uses of a thing; servitudes are limited to a
particular use.

BY THE NATURE OF THE Usufruct is always a real right; lease may create a real or quasi-real
RIGHT right (if recorded in registry of property) or a personal right.
COMPARED WITH
LEASE BY THE CREATOR OF The person constituting the usufruct must be the owner; he who
THE RIGHT constitutes a lease need not be an owner (may be constituted by
another lessee or a usufructuary.

Usufruct involves a more or less passive owner who allows the

BY THE CAUSE
usufructuary to enjoy the thing; lease involves a more active owner or
lessor who makes the lessee enjoy the thing.

BY THE EXTENT OF Usufruct generally covers all the utility of which the thing is capable;
ENJOYMENT lease generally covers a particular utility.

BY ITS ORIGIN Usufruct may be created by law, stipulation or by prescription; lease

may only be created by the will of the parties in a contract.

AS REGARDS REPAIRS A usufructuary pays for ordinary repairs on property (capital) held in
AND TAXES usufruct and taxes on the fruits; these are generally not borne by a
lessee. 86
CLASSES Voluntary • Inter vivos a) by alienation of the usufruct (Art. 1403 par. 2 e)
b) by retention of the usufruct (alienation of naked ownership)
2. Mortis causa NOTE: Where a usufruct is constituted inter vivos and for valuable
consideration, the contract is unenforceable unless in writing (Statute of Frauds, Art.
BY ORIGIN
1403 e).

Legal The usufruct of parents over the property of their children (Art.
321 CC); Compare with effect of Art. 226 FC.

MIxed Usufruct acquired by prescription.

Usufructs
BY PERSON Simple One usufructuary enjoys it. Simultaneous constituted in this
ENJOYING RIGHT manner can not go
OF USUFRUCT beyond limits laid
Multiple Several usufructuary enjoy it. Successive down by Arts. 756,
863 and 869)

1.IN DONATION: Ownership of property may be donated to one person and the usufruct to another or
others, provided all the donees are living at the time of the donation (Art. 756).
2. IN TESTAMENTARY SUCCESSION: If the testator gives a usufruct to various persons successively, the
provisions on FIDEICOMMISSARY SUBSTITUTION (Art. 863) shall apply (Art. 869) (Not more than two
successive usufructs by usufructuaries living at the testator’s death and does not go beyond one degree
from fudiciary.).

BY OBJECT OF Rights These should not be personal or

USUFRUCT intransmissible in character (Art. 564)

Things Normal Usufructuary preserves form and substance of thing in

usufruct and returns same.

Abnormal, Irregular Usufructuary may consume or alienate property but

returns either appraised value or another thing of same
kind, quantity or quality (Art. 574) (e.g.,food, sterile
animals or money [Alunan v. Veloso 52 Phil. 545]) 87
CLASSES Involving all the fruits of a thing.
Total

BY THE EXTENT Fruits Partial Involving a part only (Art. 564).

OF THE
USUFRUCT
Constituted over a universal property, e.g. the
Object Universal entire patrimony of a person (Art. 598).

Singular Constituted over individual

things or rights.

BY THE TERMS OF
THE USUFRUCT Pure Conditional With a term (period) (Art. 564)

BUNDLE OF RIGHTS
GIVEN TO
USUFRUCTUARY Jus Utendi Jus Fruendi Jus Possidendi Jus Abutendi and Jus Disponendi (Only
in abnormal usufructs)

SUBJECT MATTER Real (immovable) or Personal (movable); Corporeal or Incorporeal

OF REAL RIGHTS

RIGHTS OF • Fruit consists of natural, industrial and civil fruits.

USUFRUCTUARY • As to hidden treasure, usufructuary is considered a stranger (Art. 566); he is entitled to
half of it as a finder (Art. 438).
• Fruits pending at the beginning of usufruct belong to the usufructuary, without
reimbursement of expenses to owners, but also without prejudice to rights of third
AS TO THE THING Possession
persons (Art. 567)
AND ITS FRUIT and Enjoyment
• Fruits pending at its termination belong to the owner. The owner shall reimburse to the
usufructuary ordinary cultivation expenses for seed and other similar expenses from the
proceeds of the fruits (not to exceed the value of the fruits).
• Civil fruits accrue daily and are prorated according to time (Arts. 569, 568). There is no
prorating of natural or industrial fruits.
• To enjoy any increase through accessions and servitudes, including products of
hunting and fishing (Art. 571). 88
RIGHTS OF
USUFRUCTUARY

AS TO THE THING Right to lease the • Ordinarily, the lease should be for the same (or shorter) period as usufruct. The end of
AND ITS FRUITS thing (except in: the usufruct is the end of the lease, except in leases of rural lands, which subsists only
• purely personal for the remainder of the agricultural year (Art. 572). Rents shall be prorated between the
usufructs usufructuary and the (naked) owner.
• title creating it • The usufructuary, not the naked owner, has the right to choose the tenant (Fable v.
prohibits David, 75 Phil. 536)
• usufructuary • But the usufructuary answers for the lessee’s injurious acts (Art. 590).
takes possession • The usufructuary may make on the property held in usufruct such useful improvements
under a caucion or expenses for mere pleasure as he may deem proper, provided he does not alter its
juratoria) form or substance; but he shall have no right to be indemnified therefor. He may,
however, remove such improvements, should it be possible to do so without damage to
the property (Art. 579).

AS TO THE LEGAL Right to mortgage the

RIGHT OF right of usufruct
USUFRUCT ITSELF (Art. 572)

Right to alienate the Except in purely personal usufructs, or when title constituting it prohibits
usufruct the same, or he takes it under a caucion juratoria.

RIGHTS OF THE AT THE BEGINNING See Obligations of Usufructuary

NAKED OWNER OF THE USUFRUCT at the Beginning of Usufruct

DURING THE 1. Retention of title to the thing or property

USUFRUCT 2. Alienation of the property
EXCEPTIONS: a) No alteration of form or substance of the thing
b) No action prejudicial to the usufructuary (Art. 581)
3. Construction of buildings, addition of improvements and plantings
PROVIDED: a) the value of the usufruct is not impaired
b) rights of the usufructuary are not prejudiced.
89
OBLIGATIONS OF
USUFRUCTUARY

1. Requisites of Inventory: a) condition of immovables must be described.

AT THE To make an inventory
b) Movables must be appraised.
BEGINNING OF
EXCEPTIONS: i. No one will be injured thereby (Art. 585). ii. Title constituting
THE USUFRUCT
usufruct excused the making of inventory. iii. Title constituting usufruct already
OR BEFORE ITS
makes an inventory.
EXERCISE
2. Form: Any form except when immovables are involved, when a public
instrument is prescribed (Art. 1358) to affect third persons.
3. Failure to make inventory: Usufructuary is presumed to have taken
possession of thing in usufruct as a complete set and in good condition.
To give a bond for the
EXCEPTIONS: i. No one will be prejudiced (Art. 585) ii. Usufruct is reserved by donor (Art. 584). iii. Title
faithful performance of
constituting usufruct excused usufructuary. iv. In case of Caución juratoria (Bond by oath)
duties as usufructuary

a) If Caución juratoria is available, the usufructuary claims necessary furniture, a dwelling for himself and his
family, implements necessary for his trade.
b) He executes an affidavit under oath to take care of the things and restore them (Art. 587)
EFFECT: He cannot assign the right of usufruct nor lease the thing under usufruct.

1. Effect of filing a bond: Usufructuary is entitled to possession of thing given in usufruct. The usufructuary is
entitled to all the fruits from the time he should have begun to receive them (Art. 588).
2. Effect of failure to give bond:
A. The owner shall have the following options: a) Receivership of realty, sale of movables, deposit of
securities, or investment of money or
b) Retention of the property as administrator.
B. The net product (fruits) less administration expenses, fixed by agreement or by the Court, shall be
delivered to the usufructuary.
C. The usufructuary can not collect credits due, or make investments of the capital without the consent of
the owner or of the Court (Art. 599) until the bond is given.

To take care of the

DURING THE 1. When damages are caused to the property by the fault or negligence of the
thing as a good father
USUFRUCT usufructuary, the naked owner need not wait for the termination of the usufruct
of the family (Art. 589).
before bringing the action to recover the proper indemnity (Sánchez Román)
2. Abusive acts entitle the owner to demand its administration, subject to the
usufruct (Art. 610). 90
OBLIGATIONS OF
USUFRUCTUARY
• Ordinary repairs are those required by the wear and tear suffered by the thing in
usufruct due to 1) natural use of thing and 2) indispensable to its preservation
DURING THE To undertake ordinary • If the usufructuary fails to make ordinary repairs, the owner may, after demand,
USUFRUCT repairs (Art. 592). make them at the usufructuary’s expense.

• Extraordinary repairs are 1) those required by exceptional circumstances,

To notify owner of need whether or not necessary for the thing’s preservation or 2) those required by
to undertake natural use but not indispensable for preservation (Art. 594 par. 1) (Manresa)
extraordinary repairs • If naked owner undertakes extraordinary repairs, legal interest must be paid by
(Art. 593). the usufructuary on the amount, while the usufruct lasts (Art. 594 par. 1). This
means that the usufructuary cannot compel the owner to make extraordinary
repairs.
• Extraordinary repairs may be made by the usufructuary (if indispensable and
the owner fails) but: a) The usufructuary may demand the plus value at the
end of the usufruct (Art. 594 par. 2) and b) He may retain the property until he is
To answer for fault or
reimbursed (Art. 612).
negligence of alienee,
lessee or agent of
usufructuary (Art. 590). HOWEVER, the naked owner pays taxes directly on the
capital, includes real estate taxes
• IF paid by the OWNER, he is entitled to interest on the
To pay for annual
payment (Art. 597).
charges and taxes on
• IF paid by the USUFRUCTUARY, the latter is entitled to
the fruits (Art. 596).
reimbursement at termination, with a right of retention (Art.
612).

To notify owner of any If he fails to do so, he shall be liable for damages, as if they had been caused
act detrimental to through his fault (Art. 601).
ownership (Art. 601).

To shoulder the costs

of litigation re usufruct
(Art. 602).
AT TERMINATION
To deliver the thing given in usufruct to naked owner, now full owner, in the
OF USUFRUCT
condition he received them after having undertaken ordinary repairs.
91
SPECIAL CASES OF
USUFRUCT
• Each payment shall be considered as fruits.
• The distribution of benefits (dividends) of industrial or commercial enterprises shall also be deemed fruits.
USUFRUCT OVER
Dividends declared by a stock corporation, whether cash or stock dividends, stock dividends belong to the
A PENSION OR
usufructuary (Bachrach v. Siefert)
PERIODICAL
• Apportionment shall be on the basis of the ordinary rules governing civil fruits i.e., civil fruits accrue daily
INCOME (Art. 570)
• The usufructuary takes over the owner’s place as to 1. MANAGEMENT, 2. FRUITS and 3. INTEREST.
USUFRUCT OF
• After partition, the usufruct is transferred to the part allotted to the owner for the entire period alloted to the
PROPERTY
usufruct.
OWNED IN
COMMON (Art. 582)
• On STERILE stock: the same rules on fungible property govern, i.e. it is considered as an approval ususfruct
• On FRUITFUL stock: 1. Replace the animals that die from natural causes or rapacity of beasts of prey with
USUFRUCT OF
the young. 2. If a part of the stock perishes by accident w/o usufructuary’s fault, the usufruct subsists on the
HEADS OF CATTLE
remainder. 3. If all perish w/o usufructuary’s fault, the remains of animals saved are delivered to the owner
(Art. 591)
(loss due to contagious diseases or any uncommon event).

• If woodland is a copse or consists of timber for building: usufructuary may do ordinary cutting or felling as the
owner was in the habit of doing. (Art. 577 2nd par.) In any case, felling/cutting of trees shall be made in such
manner as not to prejudice the preservation of the land (Art. 577 3rd par.)
USUFRUCT OVER
• In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may
VINEYARDS AND
properly grow ( Art. 577, 4th par.)
WOODLANDS (Art.
• May apply to tree plantations in private lands, not to woodlands in forests or public lands.
577)
• This is rarely applied because of the Constitution’s Regalian doctrine and provisions of FTAs with DENR.
• The usufructuary follow the owner’s practices and if none, the custom of the place should be observed.

USUFRUCT OVER • Usufructuary has right to the fruits produced

FRUIT-BEARING • Right to make use of dead trunks and those cut off or uprooted by accident, under the obligation to replace
TREES OR them with new plants. ( Art. 575)
SHRUBS ( Art. 575- • If a considerable number of trees or shrubs shall have disappeared because of a calamity/extraordinary
576) event, and replacement is impossible or too burdensome, usufructuary may leave the dead, fallen or uprooted
trunks at the owner’s disposal, and demand that the latter remove them and clear the land.

USUFRUCT ON A
• Usufructuary may compel the owner to support the action with the proofs he may have.
RIGHT OF ACTION
• After the property is recovered, the usufruct is upon the thing thus recovered.
(Art. 578)

92
SPECIAL CASES OF
USUFRUCT

USUFRUCT ON
• The owner is liable for damages in case of foreclosure.
MORTGAGED
• The usufructuary is not liable for mortgage debts.
PROPERY (Art.
600)
GENERAL RULE: If at the time of constitution, owner has debts, the usufructuary is not liable for the owner’s
debts if there is no stipulation re payment of debt (Art. 579) EXCEPT when the usufruct is constituted in fraud
USUFRUCT OVER
of creditors.
AN ENTIRE
However, when it is so stipulated: i) The usufructuary shall be liable for debts previously contracted and
PATRIMONY
specified;
(Arts. 598, 758,
ii) if there is no specification, he is liable only for incurred by the owner
759)
before the usufruct was constituted and
iii) only up to extent of value of usufruct

USUFRUCT OVER • The usufructuary may use it in accordance with the purpose intended.
DETERIORABLE • He is not obliged to return the thing except in its condition at the termination of the usufruct after undertaking
PROPERTY (Art. ordinary repairs.
573) • The usufructuary must indemnify the owner for deterioration due to the former’s fraud or negligence.

USUFRUCT OF • If the things were appraised at delivery, the usufructuary must pay their appraised value at the termination of
CONSUMABLE the usufruct.
PROPERTY OR • If they are not appraised, he must return the same kind and quality or pay the current price at the expiration of
ABNORMAL the usufruct.
USUFRUCT • In reality, the nature of the transaction is that of “simple loan.”
(Art. 574)

93
EXTINGUISHMENT
OF USUFRUCT

Applicable to life usufructs or there is no resolutory condition or period for usufruct

DEATH OF
• For simultaneous usufructs, It ends at the death of the last survivor. (Art. 611)
USUFRUCTUARY
EXCEPTION: When a contrary intention clearly appears (Art. 603).

EXPIRATION OF • In favor of juridical persons, the period cannot exceed 50 years (Art. 605).
THE PERIOD OR • The period and resolutory condition must be recorded to prejudice strangers.
FULFILLMENT OF • If usufruct is granted until a third person attains a certain age, e.g. until the 30th birthday of usufructuary’s son,
THE RESOLUTORY usufruct subsists until such child reaches 30 years old even if he dies before his 30th birthday, unless expressly
CONDITION granted only in consideration of existence or life of such son. (Art. 606).

MERGER OF
RIGHTS OF
USUFRUCT AND
NAKED
OWNERSHIP IN
ONE PERSON

• It must be express and does not need the owner’s consent.

RENUNCIATION OF
• If made in fraud of creditors, the waiver may be rescinded by them through action under Art. 1381.
USUFRUCT
• If the right of usufruct is mortgaged, the mortgage lasts until its payment, or the expiration of the period of
usufruct.

TERMINATION OF
RIGHT OF PERSON
e.g. Usufruct constituted by a vendee a retro terminates upon redemption.
CONSTITUTING
THE USUFRUCT

94
EXTINGUISHMENT
OF USUFRUCT • If destroyed property is insured before the termination of the usufruct (Art. 608)
1. When insurance premium paid by owner and usufructuary (Art. 608 par. 1)
EXTINCTION OR a) If owner rebuilds, usufruct subsists on new building
LOSS OF THE b) If owner does not rebuild interest upon insurance proceeds paid to usufructuary.
PROPERTY 2. When the insurance taken by owner only because usufructuary refuses (Art. 608 par. 2)
a) Owner entitled to insurance money (No interest paid to usufructuary).
b) If he does not rebuild, usufruct continues over remaining land and/or owner may pay
interest on value of both (Art. 607).
c) If owner rebuilds, usufruct does not continue on new building, but owner must pay interest
on value of land and old materials.
3. When insurance taken by usufructuary only depends on value of usufructuary’s insurable interest (not
provided for in the Civil Code).
a) Insurance proceeds to usufructuary
b) No obligation to rebuild
c) Usufruct continues on the land
d) Owner does not share in insurance proceeds
• If destroyed property is not insured (Art. 607)
1. If building forms part of an immovable under usufruct
a) The usufruct continues over the land and the remaining materials.
2. If the usufruct is on the building only
a) If the owner does not rebuild, the usufruct continues over the land and remaining materials.
b), If the owner rebuilds, usufructuary must allow owner to occupy the land and to make use of
materials; but the owner must pay interest on the value of both the land and the materials.
TERMINATION OF
RIGHT OF PERSON
e.g. Usufruct constituted by a vendee a retro terminates upon redemption
CONSTITUTING
THE USUFRUCT
CASES COVERED: 1. If third party acquires ownership of thing
PRESCRIPTION 2. Property in usufruct or right of ownership lost through prescription
3. Right of usufruct not begun within prescriptive period
4. Tacit abandonment
5. Non-user of thing held in usufruct for the required period

WHAT DO NOT 1. Expropriation of thing in usufruct (Art. 609)

CAUSE 2. Bad use of thing in usufruct (Art. 610)
EXTINGUISHMENT 3. Usufruct over a building (Art. 607, 608)

95
 EASEMENT OR SERVITUDE

Easements or real servitudes is a real right which burdens

A thing with a prestation consisting of determinate servitudes for the exclusive enjoyment
DEFINITION
of a person who is not its owner or of a tenement beloning to another, or it, is the real right
over an immovable by nature i.e. alnd and buildings, by virtue of which the owner of the
same has to abstain from doing or to allow somebody else to do something in his property
for the benefit of another thing or person

ESSENTIAL FEATURES It is a real right i.e. it gives a real action against any possessor or servient estate
OF EASEMENTS/
REAL SERVITUDES/ It is a right enjoyed over another’s property (jus in re aliena) i.e. it cannot exist in
PRAEDIAL SERVITUDES One’s own property (nullis res sua servit)

It is a right constituted over an immovable by nature (land and buildings), not over
movables

It limits the servient owner’s right of ownership for the benefit of the dominant estate.
The right given is right of limited use, but no right to possess servient estate. Being an
abnormal limitation of ownership, it cannot be presumed

It creates a relation between tenements, relation between dominant and servient estate
It cannot consist in requiring the owner of the servient estate to do an act (servitus in
non faciendo), unless the act is accessory to a praedial servitude (obligation propter
rem)

It is inherent or inseparable from the estate to which they actively or passively belong
(Art. 617) 96
ESSENTIAL Generally, it may consist in the owner of the dominant estate demanding that
FEATURES… the owner of the servient estate refrain from doing something (servitus in non
faciendo) or that the latter permit that something be done over the servient
property (servitus in patendo), but not in the right to demand that the owner of
the servient estate to do something except if such an act is an accessory
obligation to a praedial servitude.

It is intransmissible, i.e., it cannot be alienated separately from the tenement

affected or benefited.

It is indivisible (Art. 616).

It has permanence or is perpetual, i.e., once it attaches, whether used or not,

it continues and may be used at any time.

CLASSIFICATION • Real or Praedial – Imposed on a tenement for the benefit of another tenement of a different
owner
AS TO RECIPIENT • Personal (Art. 614) – Imposed for the benefit of a person or community to whom the servient
OF BENEFITS estate does not belong
N.B. Under Roman Law, usufruct, together with usus, habitatio and operae servorum, were
AS TO CAUSE OR
classified as personal servitudes.
ORIGIN
• Legal, whether for public use or for the interest of private persons (Art. 634).
• Voluntary
AS TO ITS • Mixed (created by prescription)
EXERCISE (Art.
615) • Continuous – Use is or may be incessant without intervention of any act of man. (Art. 615, (2))
• Discontinuous – Depends upon acts of man, and their use is at long or short intervals (e.g. right
of way) (Art. 615 (3))
97
CLASSIFICATION

AS INDICATION OF *Apparent-Made known and continually kept in view by external signs which reveal its
ITS EXISTENCE use and enjoyment (Art. 615, 4th par.)
* Non-apparent-No external sign of existence (Art. 615, 5th par.)
BY THE OBJECT OR
OBLIGATION *Positive (Art. 616)
IMPOSED *Negative (Prescription starts to run from service of notarial prohibition)

GENERAL RULES 1) No one can have a servitude over his own property (Nulli res sua servit.)
RELATING TO 2) A servitude cannot consist in doing (servitus in faciendo consistere nequit)
SERVITUDES 3) There cannot be a servitude over another servitude (servitus servitutes esse non
potest)
4) A servitude must be exercised civiliter, i.e. in a way least burdensome to the owner
of the land.
5) A servitude must have a perpetual cause.

MODES OF
ACQUIRING
EASEMENTS *All easements may be created by title or something equivalent to a title.
If easement has been acquired but no document or proof of showing origin
By TITLE JURIDICAL of easement is available and easement is not susceptible of prescription, then:
ACT(e.g. law, *It may be cured by deed of recognition by owner of servient estate or
donations, contracts or *By final judgment (Art. 623)
wills) *Existence of an apparent sign considered a title (Art. 624).

BY PRESCRIPTION Only continuous and apparent easements may be created by prescription

98
 RIGHTS AND
OBLIGATIONS OF
OWNERS OF DOMINANT AND
SERVIENT ESTATES

RIGHT OF OWNER OF *To use the easement (Art. 626) and exercise all rights necessary for
DOMINAT ESTATE its use (Art. 625)
*To do at his expense, all necessary works for the use and
preservation of the easement (Art. 627).
*In a right of way, to ask for a change in width of easement sufficient
for the needs of the dominant estate (Art. 651)
OBLIGATIONS OF THE OWNER *To use the easement for benefit of immovable and in the manner
OF DOMINANT ESTATE originally established (Art. 626).
*To notify owner of servient estate before making repairs and to make
repairs in a manner least inconvenient to servient estate (Art. 627)
*Not to alter easement or render it more burdensome (Art. 627).
*To contribute to expenses of works necessary for use and
preservation of the easement, if there are several dominant estates,
unless he renounces his interest (Art. 628).
RIGHT OF OWNER OF *To retain ownership and use of his property (Art. 630)
SERVIENT ESTATE *To change the place and manner of using the easement (Art. 629 par.
2)
*To also use the easement.
OBLIGATIONS OF THE OWNER *Not to impair the use of the easement (Art. 628 par. 1)
OF SERVIENT ESTATE *To contribute proportionately to the expenses if he uses the
easement (Art. 628 par. 2)

99
MODES OF
EXTINGUISHMENT
OF EASEMENTS

MERGER Must be absolute, perfect and definite – not merely temporary.

BY NON-USER FOR a) COMPUTATION OF THE PERIOD

10 YEARS • Discontinuous easements: Counted from the day they ceased to be used.
• Continuous easements: Counted from the day an act adverse to the exercise took place.
b) The use by a co-owner of the dominant estate bars prescription with respect to the others (Art. 633).
c) Servtitudes not yet exercised cannot be extinguished by non-user.

BY IMPOSSIBILITY
Impossible to use easement for the required period of 10 years
OF USE

EXPIRATION OF
THE TERM OR
FULFILLMENT OF
RESOLUTORY
CONDITION

RENUNCIATION OF Must be specific, clear and express (as distinguished from non-user).
THE OWNER OF
DOMINANT
ESTATE

REDEMPTION
AGREED UPON BY
a) Annulment or rescission of the title constituting the easement
OWNERS
b) Termination of the right of grantor
c) Abandonment of the servient estate
OTHER CAUSES d) Eminent domain
NOT IN ART. 631 e) Special cause for extinction of legal rights of way; if right of way no longer necessary
100
LEGAL EASEMENTS

LAW GOVERNING PUBLIC EASEMENTS

LEGAL 1) Special laws and regulations relating thereto e.g., PD 1067, PD 705
EASEMENTS 2) By the provisions of Chapter 2 (including zoning laws and ordinancesTitle VII, Book II of the New Civil
Code

PRIVATE LEGAL EASEMENTS

1) By the provisions of Chapter 2, Title VII, Book II of the Civil Code, without prejudice to zoning laws and
ordinances
2) May be modified by agreement of the interested parties whenever the law does not prohibit it and no
injury is suffered by a third person

PRIVATE LEGAL a) Those established for the use of water or easements relating to waters (Arts. 637 – 648).
EASEMENTS IN • Natural drainage of waters (Art. 637)
CIVIL CODE • Easements on lands along riverbanks (Art. 638, see Water Code)
• Aqueduct (Arts. 642 – 646)
• Abutment of a dam (Art. 639)
• Stop lock or sluice gate (Art. 649)
• Drawing waters and watering animals (Art. 640)
b) Easement of right of way (Arts. 649-657).
c) Easement of party wall (Arts. 658 – 666)
d) Easement of light and view (Arts. 667 – 673)
e) Easement of drainage of buildings (Arts 674 – 676)
f) Easement of distance for certain constructions and plantings (Arts. 677 – 681)
g) Easement against nuisances (Art. 682 – 683)
h) Easement of lateral and subjacent support (Arts. 684 – 687)

101
PRIVATE LEGAL
EASEMENTS

EASEMENTS ESTABLISHED
FOR THE USE OF WATER OR
EASEMENTS RELATING TO
WATERS

NATURAL Lower estates are obliged to receive the waters which naturally and without intervention of
DRAINAGE OF man descend from higher estates, as well as the earth or stones carried with them (Art. 637).
LANDS
• A river bank within a zone of 3 meters in urban areas, 20 meters in agricultural areas, and
EASEMENTS ON 40 meters in forest areas (Art. 51, PD 1067) along the bank is subject to the easement for
LANDS ALONG public use in the interest of navigation, floatage, fishing and salvage (Art. 638 1st par.)
RIVERBANKS • Banks of navigable rivers are also subject to the easement of towpath. (Art. 638 2nd par.)
• Indemnity must be paid if private land is occupied (Art. 638 3rd par.)

EASEMENT OF Whenever for the diversion or taking from a river or brook, or for the use of any other
ABUTMENT OF A continuous or discontinuous stream, it should be necessary to build a dam, and the person
DAM who is the person it is not the owner of the banks, or lands which must support it, he may
establish the easement of abutment of a dam, after payment of the proper indemnity (Art.
639)
COMPULSORY
EASEMENT FOR • Imposed only for reasons of public use in favor of a town or village, after payment of proper
DRAWING WATER indemnity (Art. 640).
OR FOR • Owners of servient estates are obliged to allow passage (right of way) to persons and
WATERING animals to the place where such easements are to be used, and the indemnity shall include
ANIMALS this service. (Art. 641)
• Easements for the right of way for the passage of livestock known as animal path, animal
trail or any other, and those for watering places, resting places and animal folds, shall be
governed by the ordinances and regulations relating thereto, and in the absence thereof, by
the usages and the customs of the place. (Art. 657, 1st par.)
• Without prejudice to the rights legally acquired, the animal path shall not exceed in any
case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. (Art.
657, 2nd par.)
• Whenever it is necessary to establish a compulsory easement of the right of way or for a
watering place for animals, the provisions of this Section and those of Articles 640 and 641
shall be observed. In this case the width shall not exceed 10 meters. (Art. 657, 3rd par.) 102
EASEMENT OF
Requisites:
AQUEDUCT
• Any person who may wish to use upon his own estate any water, he can dispose of shall have
the right to make it flow through the intervening estate (Art. 642)
•Cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards already
existing, if the easement of aqueduct is for private interest (Art. 644)
• One desiring to make use of the right to an easement of aqueduct should:
1. Prove that he can dispose of the water (by prescription or administrative concession) (Art.
643 (1))
2. That the water is sufficient for the intended use (Art. 643 (1)
3. That the course is the most convenient, and least onerous, to the owner of the servient
estate or to third persons ( Art. 643 (2))
4. Indemnify the owner of the servient estate in the manner determined by the laws and
regulations (Art. 643 (3)), as well as the owners of the lower estates upon which the waters may
filter or descend (Art. 642).

For legal purposes, the easement of aqueduct shall be considered as continuous and apparent,
even if flow of water is not continuous, or its use depends upon the needs of the dominant estate or
upon a schedule of alternate days or hours. (Art. 646).

Rights and obligations of the owner of the dominant estate: To service and clear the aqueduct and
to provide for deposit of the materials necessary therefor.
Rights and obligations of the owner of the servient estate: To close and fence and build over the
aqueduct in such manner as not to cause the aqueduct any damage, or render necessary repairs
and cleanings impossible. (Art. 645).

One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice
STOP LOCK OR
gate in the bed of the stream from which the water is to be taken, may demand that the owners of
SLUICE GATE
the banks permit its construction, after payment of damages, including those caused by the new
easement to such owners and to other irrigators (Art. 647)

103
EASEMENT OF The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is
RIGHT OF WAY surrounded by other immovables pertaining to other persons and without adequate outlet to a public
highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper
indemnity. (Art. 649, 1st par.)

Requisites: 1. That the dominant estate is surrounded by other immovables and has no adequate outlet or access ( or difficult or
dangerous access) to a public highway.
2. There must be payment of the proper indemnity.
a. Permanent passage – indemnity shall consist of the value of the land occupied
and the amount of the damage caused to the servient estate. (Art. 649, 2nd par.)
b. Temporary passage – indemnity shall consist of the damage caused by such
encumbrance. (Art. 649, 3rd par.)
• No indemnity arises when the enclosing estate belongs to the vendor, exchanger or co-owner (donor not included) (Art. 652).
•But if the estate enclosed is that of the grantor, he must pay indemnity for a right of way, unless he is the donor of the enclosing
estate (Art. 653).
3. That the isolation was not due to acts of the proprietor of the dominant estate – not compulsory if the isolation of the immovable is
due to the proprietor’s own acts ( Art. 649, 4th par.)
4. That the right of way claimed is at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where
the distance from the dominant estate to a public highway may be shortest; (Art. 650)
• The width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate, and may accordingly
be changed from time to time.
• If the right of way is permanent, necessary repairs shall be made by owner of dominant estate. A proportionate share of taxes shall
be reimbursed by said owner to the proprietor of the servient estate (Art. 654)
• Owner of servient estate may demand that the easement be extinguished, returning indemnity received, if the right of way granted
to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road or in case a new
road is opened giving access to the isolated estate. In both cases, the public highway must substantially meet the needs of the
dominant estate in order that the easement may be extinguished. (Art. 655)
• Right of way for cattle should not be more than 10 meters wide (unless a greater width was a vested right under laws prior to Old
Civil Code (Art. 657)

104
EASEMENT OF
PARTY WALLS

• Disputable presumptions of the existence of easement of party wall:

1.In dividing walls of adjoining buildings up to the point of common elevation;
2.In dividing walls of gardens or yards situated in cities, towns, or in rural communities;
3.In dividing fences, walls and live hedges in rural lands (Art. 659)
4.In ditches or drains between tenements (Art. 661)

• Rebuttal of presumption – by title, by contrary proof, or by signs contrary to the existence of the
servitude .
• It is understood that there is an exterior sign, contrary to the existence of a party wall:
1. Whenever in the dividing wall of buildings there is a window or opening;
2. Whenever the dividing wall is, on one side, straight and plumb on all its facement, and on the
other, it has similar conditions on the upper part, but the lower part slants or projects outward;
3. Whenever the entire wall is built within the boundaries of one of the estates;
4. Whenever the dividing wall bears the burden of the binding beams, floors and roof frame of one of
the buildings, but not those of others;
5. Whenever the dividing wall between courtyards, gardens, and tenements is constructed in such a
way that the coping sheds the water upon only one of the estates;
6. whenever the dividing wall, being built of masonry, has stepping stones, which at certain intervals
project from the surface on one side only, but not on the other;
7. Whenever lands inclosed by fences or live hedges adjoin others which are not inclosed.
• In all these cases, the ownership of the walls, fences, or hedges shall be deemed to belong
exclusively to the owner of the property or tenement which has in its favor the presumption based
on any one of these signs. ( Art. 660)
• Ditches or drains opened between two estates are also presumed as common to both, if there is
no title or sign showing the contrary. (Art. 661, 1st par.)
• There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch
or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong
exclusively to the owner of the land having this exterior sign in its favor. ( Art. 661, 2nd par.)

105
EASEMENT OF
PARTY WALLS

a. To make use of party wall in proportion to the right he may have in the co-ownership (i.e. resting
buildings on it or inserting beams up to one-half of the wall’s thickness), without interfering with the
common and respective uses by other co-owners. (Art. 666)
Rights of part- b. To increase the height of the wall, doing so at his expense (including the thickening of the wall over
owners: his own land), and paying for the damage which may be cause by the work (even though such
damage is temporary). (Art. 664)
c. To acquire half-interest in any increase of thickness or height, paying a proportionate share in the
cost of the work and of the land covered by the increase in thickness (Art. 665).

a. The cost of repairs and construction of party walls and the maintenance of fences, live hedges,
ditches and drains owned in common, shall be borne by all the owners of the lands or tenements
Duties of part- having the party wall in their favor, in proportion to the right of each (but any owner may exempt
owners: himself from contributing to this charge by renouncing his part-ownership, except when the party
wall supports a building belonging to him) (Art. 662).
b. if the owner of a building supported by a party wall desired to demolish the building, he may also
renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent
any damage which the demolition may cause to the party wall, on this occasion only, shall be
borne by him (Art. 663.)
c. If the owner raises the height of the wall, he must:
1. Bear the cost of maintenance of the additions;
2. Bear the increased expenses of preservation;
3. Bear the cost of construction, if the wall cannot support the additional height;
4. Give additional land, if necessary, to thicken the wall. (Art. 664)
• But the owner may acquire part ownership of the new wall by paying proportionately for the value
of the work and the land used, as of the time of acquisition (Art. 665)

106
EASEMENT OF Easement of Light – is the right to make openings
LIGHT AND VIEW Easement of View – is the right to open the windows to enjoy the view and to bar the servient owner from
blocking the view. It includes the easement of light and the servitude of altius non tollendi (not to build
higher).

A. Restrictions as to openings in a party wall: No part owner may, without the consent of the others, open
through the party wall any window or aperture of any kind (Art. 667)
B. Restrictions on openings in one’s own wall when contiguous (less than 2 meters) to another’s
tenement (Art. 669) – openings could not exceed 30 cm. square; such openings must be at the height
Restrictions of the ceiling joists or immediately under the ceiling and in every case must be with an iron grating
on Owner imbedded in the wall and with a wire screen. (Art. 669 1st par.)
(The abutting owner may: (i) close the openings if the wall becomes a party wall, if there is no
stipulation to the contrary Art. 669 2nd par.; (ii) obstruct the light by constructing a building/erecting a
wall on his land , unless an easement of light has been acquired (Art. 669 3rd par.) Note: The
nonobservance of these distances does not give rise to prescription (Art. 670 3rd par.)
C. Restrictions as to views – No windows, apertures, balconies, or other similar projections which afford a
direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of
two meters between the wall in which they are made and such contiguous property. Neither can side or
oblique views upon/towards such conterminous property be had, unless there be a distance of sixty
meters. (Art. 670).
• Measurements are considered from the boundary line to the nearest edge of the window.
• Stipulations permitting lesser distances are void. (Art. 673)
• The rules are not applicable to buildings separated by public thoroughfares or private alleys open to the
public, and not less than 3 meters wide (Art. 672).
• Whenever by any title a right has been acquired to have direct views, balconies or belvederes
overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a
distance of three meters to be measured in the manner provided in Art. 671. (Art. 673).

(a) By Title (or apparent sign of easement under Art. 624), or

(b) By Presciption – counted from the formal prohibition on the servient owner (Cortes vs. Yu Tibo, 2 Phil.
24) or from the opening of the window, if it is through a party wall (Art. 668).
• If positive (i.e. opening is made through another’s wall or through a party wall), period of 10 years
counted from time opening is made.
• If negative (i.e. opening is made through one’s own wall , period starts to run from service of notarial
prohibition upon the proprietor of the adjoining land or tenement. ( Art. 668 [2]).

107
DRAINAGE OF • The owner of a building must construct its roof/covering in such a manner that the rain water shall fall on his
BUILDINGS land or on a street or public place, and not on the land of a neighbor, even if the adjacent land belongs to 2 or
more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner must
collect the water in such a way as not to cause damage to the adjacent land/tenement (Art. 674). This is a
limitation on owner’s right. The easement exists when the owner has the right to avert rainwater falling on his
roof, not on his neighbor.
• A compulsory easement is available when a house, yard or court is enclosed by other estates and it is
impossible to give outlet to the rain water through the house itself, provided the outlet must be established
where egress is easiest and proper indemnity is paid (Art. 676)
• Owner of servient estate has option to receive water on his own roof and drain the same without damage to
the dominant estate, according to ordinances/regulations. (Art. 675)

A. Military zones – no constructions can be built/planted near fortified places/fortresses without compliance
with the conditions required in special laws, ordinances, and regulations relating thereto (Art. 677)
B. Constructions – For wells, sewers, furnaces, forges, chimneys, stables, deposits of corrosive materials,
machineries or factories, distances fixed by ordinances/custom must be observed; also, protective
EASEMENT OF structures prescribed by ordinances or custom must be erected. If none, precautions must be taken, if
DISTANCE FOR necessary, to avoid damage to neighboring estates or buildings. (Art. 678). Note: No waiver is allowed on
CERTAIN the part of adjoining proprietors.
CONSTRUCTIONS C. Plantings – a. distances as prescribed by ordinances or customs must be observed. If none, 2 meters from
AND PLANTINGS the boundary for large trees, and 50 cm. for shrubs. (Art. 679)
b. Intrusions – of branches: The owner of the tree may be compelled to cut intruding branches at the
boundary.
- of roots: the owner of the invaded tenement may cut them himself at he boundary,
• Fruits naturally falling upon adjacent land belong to the owner of the said land (Art. 681).

EASEMENT • Every building or piece of land is subject to the easement which prohibits the proprietor/possessor from
AGAINST committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare, and other causes.
NUISANCE (Art.682)

• No proprietor shall make such excavations upon his land as to deprive any adjacent land or building sufficient
EASEMENT OF lateral or subjacent support (Art. 684). Any stipulation/testamentary provision to the contrary is void (Art. 685)
LATERAL AND • This legal easement applies not only for buildings standing at the time the excavations are made but also for
SUBJACENT constructions that may be erected. (Art. 686)
SUPPORT • Proprietors intending to make such excavations shall notify the owners of adjacent lands. (Art. 687)

108
 Prof. Eduardo A. Labitag

NUISANCE

DEFINITION A nuisance is any act, omission, establishment, business, condition of property, or

anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or

(3) Shocks, defies or disregards decency or morality; or

(4) Obstructs or interferes with the free passage of any public highway or street, or any
body of water; or

(5) Hinders or impairs the use of property. (Art. 694)

DISTINCTIONS

In nuisance, one's use of his property injures another's property or rights or interests;
injury to realty or one's own property may be made without entry. The injury is
Trespass
consequential.

In trespass, one directly infringes another's right of property. The injury is immediate.

In nuisance, the person who creates or maintains a nuisance is liable for the resulting
injury to others regardless of the degree of care or skill exercised to avoid such injury.
Negligence
In negligence, the person negligent is liable due to want of proper care.

109
 Prof. Eduardo A. Labitag

NUISANCE

CLASSIFICATION

Nuisance per se Nuisance per se – it is an act, occupation, or structure which is a

nuisance at all times and under any circumstances, regardless of
As to their
location or surroundings.
nature
Nuisance per Nuisance per accidens – one that becomes a nuisance by reason of
accidens circumstances and surroundings.

A public nuisance affects a community or neighborhood or any

Public
considerable number of persons, although the extent of the
As to their annoyance, danger or damage upon individuals may be unequal
injurious (Art. 695)
consequences
A private nuisance is one that is not included in the foregoing
Private
definition (Art. 695).

Mixed A mixed nuisance is one which is both public and private in

character.

NOTE:
Attractive Nuisance – “One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to exercise ordinary
care to prevent children from playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is technically a trespasser in the
premises. The principal reason for the doctrine is that the condition or appliance in question
although its danger is apparent to those of age, is so enticing or alluring to children of tender
years as to induce them to approach, get on or use it, and this attractiveness is an implied
invitation to such children” (Taylor vs. Manila Electric Railroad and Light Co., 16 Phil. 8
[1910])
110
 Prof. Eduardo A. Labitag

NUISANCE

LIABILITY • Joint and several liability - for anyone who joined or participated in the creation or
maintenance of a nuisance.
• Proportionate liability - if two or more persons acted entirely independent of one another

Creator of The creator of a nuisance is liable for the resulting damages; such liability continues as long
Nuisance as the nuisance exists. However, no one is to be held liable for a nuisance which he cannot
himself physically abate without legal action against another for that purpose.

In order for the grantee of land to be held liable, he must knowingly continue the nuisance.
Transferees
Moreover, he must be notified of the nuisance and requested to remove it, or he has actual
knowledge that such is a nuisance and is injurious to the rights of the others.

111
 Prof. Eduardo A. Labitag

NUISANCE
(1) A prosecution under the Penal Code or any local ordinance: or
REMEDIES
(2) A civil action; or

a. Against a (3) Abatement, without judicial proceedings. (Art. 699)

Public
Nuisance
NOTE:
1. Any private person may abate a public nuisance which is specially injurious to him by
removing, or if necessary, by destroying the thing which constitutes the same, without
committing a breach of the peace, or doing unnecessary injury. But it is necessary:

(1) That demand be first made upon the owner or possessor of the property to abate the
nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with the
assistance of the local police; and

(4) That the value of the destruction does not exceed three thousand pesos. (Art. 704. )

2. The district health officer shall take care that one or all of the remedies against a public
nuisance are availed of. (Art. 700)

3. If a civil action is brought by reason of the maintenance of a public nuisance, such

action shall be commenced by the city or municipal mayor. (Art. 701)

4. The district health officer shall determine whether or not abatement, without judicial
proceedings, is the best remedy against a public nuisance. (Art. 702)

5. A private person may file an action on account of a public nuisance, if it is specially

injurious to himself. (Art. 703)
112
 Prof. Eduardo A. Labitag

NUISANCE

REMEDIES

Against a (1) A civil action; or

Private
Nuisance (2) Abatement, without judicial proceedings. (Art. 705)

NOTE:

1. Any person injured by a private nuisance may abate it by removing, or if necessary, by

destroying the thing which constitutes the nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is indispensable that the procedure for
extrajudicial abatement of a public nuisance by a private person be followed. (Art. 706)

LIABILITY FOR A private person or a public official extrajudicially abating a nuisance shall be liable for
DAMAGES damages:

(1) If he causes unnecessary injury; or

(2) If an alleged nuisance is later declared by the courts to be not a real nuisance. (Art.
707)

113
 Prof. Eduardo A. Labitag

MODES OF ACQUIRING OWNERSHIP

MODE AND TITLE Mode is the specific cause which produces dominion and other real rights as a result of the co-
DIFFERENTIATED existence of special status of things, capacity and intention of persons and the fulfillment of the
requisites of law.

Title is every juridical right which gives a means to the acquisition of real rights but which in itself
is insufficient.

MODES OF
ACQUIRING
OWNERSHIP

ORIGINAL MODES They produce the acquisition of ownership independent of any pre-existing right of another person. Hence,
they are free from any burdens or encumbrances.
• OCCUPATION
• INTELLECTUAL CREATION

DERIVATIVE Based on a right previously held by another person and therefore, subject to the same characteristics,
MODES powers, burdens etc as when held by previous owner.
LAW – e.g. Registration under Act 496; Estoppel of title under Art. 1434 CC, Marriage under Absolute
Community of Property System, Hidden Treasure, Accession, Change in River’s Course, Accession
Continua over Movables, Arts. 681, 1456 CC and Art. 120, FC
• DONATION
• SUCCESSION
• PRESCRIPTION
• TRADITION

REQUISITES • Pre-existence of right in estate of grantor

• Just cause or title for the transmission
• Intention of both grantor and grantee
• Capacity of grantor to transmit and capacity of grantee to acquire
• An act giving it outward form physically, symbolically or legally.
NON NUDIS PACTIS, SED TRADITIONE, DOMINIA RERUM TRANSFERUNTUR – Not by mere
agreement, but by delivery, is ownership transferred. 114
KINDS OF
TRADITION

REAL TRADITION Actual transfer of control and possession, with intent to pass ownership or real right over the property (Art.
1497)

CONSTRUCTIVE • TRADITIO SIMBOLICA – Delivery of a thing which symbolizes the property, e.g. keys of the place or
TRADITION depository where the thing is stored or kept
• TRADITIO LONGA MANU – Pointing to the thing in sight
• TRADITIO BREVI MANU – Transferee already had it in his possession for any other reason
• TRADITIO CONSTITUTUM POSSESSORIUM – Owner of the thing alienates it but continues in possession
in the concept of a tenant or another subordinate right (bailee).
• QUASI-TRADITION – Exercise of the right by the transferee with the consent of the transferor
• TRADITION BY OPERATION OF LAW – Express provision of law
• DELIVERY OF PUBLIC INSTRUMENT –The execution thereof is equivalent to the delivery of the thing, the
object of the contract
OCCUPATION

DEFINITION It is the acquisition of ownership through seizure of corporeal things that have no owner, made with intent to
acquire them and done according to rules laid down by law (Partidas).

REQUISITES a) Corporeal personal property

b) Property susceptible of appropriation
c) Seizure with intent to appropriate
d) No owner (Res Nullius) or abandoned property (Res Derelicta)
e) Observance of conditions laid down by law

a) Not applicable to ownership of a piece of land (Art. 714)

NOTES
b) Privilege to hunt and fish regulated by special law (Art. 715)
c) Occupation of a swarm of bees or domesticated animals (Art. 716, see also Art. 560
d) Pigeons and fish (Art. 717)
e) Hidden Treasure (Art. 718, see also Arts. 438-439) 115
f) Lost movables, procedure after finding them (Art. 719-720)
INTELLECTUAL
CREATION

INTELLECTUAL
PROPERTY CODE
RA No. 8293

INTELLECTUAL • Copyright and related rights

PROPERTY • Trademarks and service marks
RIGHTS • Geographic indications
• Industrial designs
• Patents
• Topographies of integrated circuits
• Rights of performers, producers of sound recordings and broadcasting organizations
• Protection of undisclosed information

LAWS REPEALED • PD No. 49 – Intellectual Property Decree including PD 285 as amended

BY THE • RA No. 165 as amended (Patent Law)
INTELLECTUAL • RA No. 166 as amended
PROPERTY CODE • Arts. 188-189 of the Revised Penal Code

116
 Prof. Eduardo A. Labitag

DONATION
DEFINITION It is an act of liberality where a person disposes gratuitously of a thing or right in
favor of another, who accepts it (Art. 725). It is a bilateral contract creating
unilateral obligations on donor’s part (Scaevola).

REQUISITES • Consent and capacity of the parties

• Animus donandi (causa)
• Delivery of the thing donated
• Form as prescribed by law
• There must be impoverishment (in fact) of donor’s patrimony and enrichment on
the part of the donee.

KINDS OF AS TO ITS TAKING • Inter Vivos – (Arts. 729, 730, 731)

DONATIONS EFFECT • Mortis Causa – (Art. 728)
• Propter Nuptias – (Art. 82, 87 FC)

AS TO CAUSE OR • Simple – Made out of pure liberality or because of the merits of

CONSIDERATION the donee
• Remuneratory – Made for services already rendered to the donor
not constituting recoverable debts
• Onerous – Made with burdens imposed upon the donee, not a
true donation but subject to laws governing contracts.
i. Improper - burden equal in value to property donated
ii. Sub modo or modal – imposes a prestation upon donee on
how property donated will be applied (see Art. 882)
iii. Mixed – NEGOTIUM MIXTUM CUM DONATIONE e.g. sale for
price lower than value of property

AS TO EFFECTIVITY OR • Pure – Without conditions or period

EXTINGUISHMENT • Conditional (Art. 730, 731) – Can be suspensive or resolutory
• With a term
117
KINDS OF
IMPORTANCE OF • As to form
DONATIONS CLASSIFICATION • As to governing rules
• As to impossible conditions (Arts. 727, 1183)

CHARACTERISTICS • Conveys no title nor ownership before donor’s death

OF A DONATION • If made before donor’s death, transfer is revocable
MORTIS CAUSA • Transfer is void if donor survives donee

DISTINCTION • What is important is the TIME of transfer of ownership, even if transfer of property
BETWEEN A donated may be subject to a condition or a term
DONATION MORTIS • Importance of classification – validity and revocation of donation
CAUSA AND A
DONATION INTER
VIVOS

WHO MAY BE The donor must have the capacity to contract and dispose of his property.
DONORS
(ARTS. 735, 736, 737, The donor’s capacity is determined as of the time of the donation (Art. 737),
739) subsequent incapacity is immaterial. But if incapacity prevents him from
learning of the acceptance, there is no donation (Art. 734).

Guardians and trustees cannot donate properties entrusted to them (Art.

736).

WHO MAY BE
DONEES
(ARTS. 738, 739, 740, In general, all persons not disqualified by law may be donees (Art. 738).
741, 742,743, 744,
753, 1027 CC and
ART. 87, FC) 118
WHO MAY BE EXCEPTIONS
DONEES… a) By reason of public policy
1) Persons guilty of adultery or concubinage at the time of donation (Art. 739 par.
1) and conviction is not required.
2) Those made between persons found guilty of the same (identical) criminal
offense, if the donation is made in consideration thereof (Art. 739, par. 2).
3) Those made to a public officer, his wife, descendants and/or ascendants by
reason of his office (Art. 739, par. 3). NB: These apply to life insurance benefits
(Art. 2012).
b) By reason of unworthiness of the donee
1) Incapacity to succeed by will shall be applicable to donations inter vivos (Art.
740).
2) This apply to cases under Arts. 1032 and 1027 except Art. 1027 par. 4
(disqualification of witnesses to a will).
c) By reason of prejudice to creditors or heirs (voidable)
NB: Donations to disqualified persons are VOID even if made fictitiously 1) under the
guise of another contract or 2) through an intermediary (Art. 743).

ACCEPTANCE OF WHO MAY ACCEPT (ART. Acceptance must be personal or through an agent (a general agent or a
DONATION 745, 747) special agent). The form of authority must be in a public instrument in
accordance with Art. 1358.

TIME OF ACCEPTANCE It must be made during the lifetime of the donor and the donee (Art.
746).

FORM OF DONATION PERSONAL PROPERTY It may be made orally or in writing. An oral donation requires the
(ART. 748) simultaneous delivery of the thing or of the document representing the
thing donated. If the value exceeds 5,000 pesos, it should be in writing;
if not, it is void.
Inapplicable to onerous,
REAL PROPERTY (ART.
modal, mortis causa and It must be in a public instrument, the property and the charges must be
749)
propter nuptias donations. specified. It may be in the same deed or in a separate one notified119
to
the donor in authentic form.
WHAT MAY BE All present property, or part thereof, of donor:
DONATED • Provided he reserves, in full ownership or usufruct, sufficient means for support of
(ART. 750-752, 755- himself and all relatives entitled to be supported by the donor at time of acceptance
756) (Art. 750).
• Provided that no person may give or receive by way of donation, more than he may
give or receive by will (Art. 752). Also, reserves property sufficient to pay donor’s
debts contracted before donation, otherwise the donation is in fraud of creditors
(Arts. 759, 1387).
NB: If donation exceeds the disposable or free portion of his estate, it is inofficious.
Exceptions: a) Donations provided for in marriage settlements between future
spouses – not more than 1/5 of present property (Art. 84, FC and Art. 130, CC).
b) Donations propter nuptias by an ascendant consisting of jewelry,
furniture or clothing not to exceed 1/10 of disposable portion (Art. 1070).

WHAT MAY NOT BE Future property – Meaning of property (Art. 751)

DONATED Exception: Marriage settlements of future spouses only in event of death to the
extent laid down in Civil Code on testamentary succession (Art. 130 CC, Art. 84,
FC)

EFFECTS OF IN GENERAL Donee may demand actual delivery of the thing donated.
DONATION
Donee is subrogated to the rights of donor in the property donated (Art.
754).

Donor is not obligated to warrant things donated except in onerous

donations in which case donor is liable for eviction up to extent of burden
(Art. 754).

Donor is liable for eviction or hidden defects in case of bad faith on his
part (Art. 754).

120
EFFECTS OF IN GENERAL In donations propter nuptias, donor must release property donated from
DONATION mortgages and other encumbrances, unless contrary has been stipulated
(Art. 131, FC).

Donations by reason of marriage of property subject to encumbrances

shall be valid. In case of foreclosure of the encumbrance and the
property is sold for less than the total amount of the obligation secured,
the donee shall not be liable for the deficiency. If the property is sold for
more than the total amount of said obligation, the donee shall be entitled
to the excess. (Art. 85, FC)

In donations propter nuptias, donor must release property donated from

mortgages and other encumbrances, unless contrary has been stipulated
(Art. 131, FC).

Donations by reason of marriage of property subject to encumbrances

shall be valid. In case of foreclosure of the encumbrance and the
property is sold for less than the total amount of the obligation secured,
the donee shall not be liable for the deficiency. If the property is sold for
more than the total amount of said obligation, the donee shall be entitled
to the excess. (Art. 85, FC)

When a donation is made to several persons jointly, it is understood to

be in equal shares, and there shall be no right of accretion among them,
unless:

1. Donor provides otherwise

2. Donation to husband and wife jointly with right of accretion (jus
accrescendi), unless donor provides otherwise (Art. 753)

121
EFFECTS OF SPECIAL PROVISIONS Reservation by donor of power to dispose (in whole or in part) or to
DONATION encumber property donated (Art. 755)

Donation of naked ownership to one donee and usufruct to another (Art.

756, CC)

Conventional reversion in favor of donor or other person (Art. 757)

Payment of donor’s debt – (Art. 758)

a. If expressly stipulated -
donee to pay only debts contracted before the donation, unless specified
otherwise – but in no case shall donee be responsible for debts
exceeding value of property donated, unless clearly intended

b. If there is no stipulation -
donee answerable only for donor’s debt only in case of donation is in
fraud of creditors

1. Inofficiousness of donation (Art. 752, 771, 773; Art. 911 & 912 also
REVOCATION AND Causes of Reduction or govern reduction)
REDUCTION OF Revocation
DONATIONS a. Who may ask for reduction - Only those who at the time of the donor's
death have a right to the legitime and their heirs and successors in
interest may ask for the reduction of inofficious donations. (Art. 772)

b. Rule applied - if disposable portion is not sufficient to cover two or

more donations (Art. 773)

2. Subsequent birth, reappearance of child or adoption of minor by donor

(Art. 760)

122
REVOCATION AND Revocation (only) Ingratitude (Art. 765)
REDUCTION OF a. Causes:
• donee commits some offense against the person, honor or property of
DONATIONS the donor, or his wife or children under his parental authority;

• donee imputes to the donor any criminal offense, or any act involving
moral turpitude, even though he should prove it, unless the crime or the
act has been committed against the donee himself, his wife or children
under his authority;

• donee unduly refuses donor support when the donee is legally or

morally bound to give support to the donor

b. Time to file action for revocation (Art. 769)

• the action prescribes in one (1) year, to be counted from the time the
donor had knowledge of the fact and it was possible for him to bring the
action

c. Who may file (Art. 770)

• only the donor

d. Effect of Revocation

i. On alienations and mortgages

• although the donation is revoked on account of ingratitude,
nevertheless, the alienations and mortgages effected before the notation
of the complaint for revocation in the Registry of Property shall subsist.
Later ones shall be void. (Art. 766)

• the donor shall have a right to demand from the donee the value of
property alienated which he cannot recover from third persons, or the
sum for which the same has been mortgaged; the value of said property
shall be fixed as of the time of the donation. (Art. 767)

123
 Violation of condition
a. Prescription of action
• action prescribes in four (4) years (Art. 764, par. 3)
REVOCATION AND Revocation (only)
b. Transmissibility of action
REDUCTION OF • action may be transmitted to the heirs of the donor (Art. 764, par. 3)
DONATIONS
Effect of revocation or reduction
• upon the revocation or reduction of the donation by the birth,
appearance or adoption of a child, the property affected shall be returned
or its value if the donee has sold the same. If the property is mortgaged,
the donor may redeem the mortgage, by paying the amount guaranteed,
with a right to recover the same from the donee. When the property
cannot be returned, it shall be estimated at what it was worth at the time
of the donation. (Art. 762)

• when the donee fails to comply with any of the conditions imposed by
the donor, the donation shall be revoked at the instance of the donor; In
this case, the property donated shall be returned to the donor, the
alienations made by the donee and the mortgages imposed thereon by
him being void, with the limitations established, with regard to third
persons, by the Mortgage Law and the Land Registration Laws. (Art.
764, par. 2)

• when the donee commits acts of ingratitude, the donor shall have a
right to demand from the donee the value of property alienated which he
cannot recover from third persons, or the sum for which the same has
been mortgaged. (Art. 767)

Effect as to fruits
• When the donation is revoked for any of the causes stated in Article 760,
or by reason of ingratitude, or when it is reduced because it is inofficious,
the donee shall not return the fruits except from the filing of the complaint.

If the revocation is based upon noncompliance with any of the conditions

imposed in the donation, the donee shall return not only the property but
also the fruits thereof which he may have received after having failed to
fulfill the condition. (Art. 768)
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LEASE
GENERAL • temporary duration
CHARACTERISTICS • onerous
(of every lease) • price is fixed according to contract duration

KINDS OF LEASES a. Lease of things – movables and immovables

b. Lease of work or contract of labor (Arts. 1700-1712)
c. Lease of services

(i) household service

(ii) contract for a piece of work (Arts. 1713-1731)
(iii) lease of services of common carriers (Art. 1732-1763)

LEASE OF THINGS

In the lease of things, one of the parties binds himself to give to another the enjoyment or
Concept use of a thing for a price certain, and for a period which may be definite or indefinite.
However, no lease for more than ninety-nine years shall be valid. (Art. 1643)

Consumable things cannot be the subject matter of lease, except:

1. consumable only for display or advertising (lease ad pompam et ostentionem)

2. goods are accessory to an industrial establishment, e.g. coal in a factory (Art. 1645)

Special • essential purpose is to transmit the use and enjoyment of a thing

Characteristics • consensual
of lease of things • onerous
• price fixed in relation to period of use or enjoyment
• temporary
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LEASE OF THINGS

Lease
distinguished
• in sale, there is a transmission of the ownership of the thing sold, and that transmission is
from:
permanent, unless subject to a resolutory condition; while in the contract of lease, only the use
or enjoyment of the thing is transferred, and only for a determinate period
Sale • in sale, the price of the thing is fixed in the contract; while in lease, it is plain redundancy to fix
or mention the price of the thing which is the subject-matter thereof.

• usufruct is always a real right, while lease is a real right only by exception;
• in order to constitute a usufruct, one must be the owner of the thing, while such ownership is
not required in order to give an object in lease;
• the lessor places and maintains the lessee in enjoyment of the thing, while the owner allows
Usufruct the usufructuary to use and enjoy the property;
• usufruct includes all possible uses and manner of enjoyment of the property, lease may be
limited to particular uses by the contract;
• a usufruct may be for an indefinite period of time, while a lease must be for a determinate
period of time, and if the contract in the latter case does not fix the period, which is left to the
will of the lessee, the court must fix such period in an action brought for such purpose

Commodatum • commodatum is essentially gratuitous, while lease is onerous

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LEASE OF THINGS

Cannot be perpetual
Period of Lease • it must be for a definite period – not more than 99 years
• indefinite period:
a. rural land (Art. 1682)
b. urban land (Art. 1687)

The lessee cannot assign the lease without the consent of the lessor, unless there is a
Assignment of
stipulation to the contrary. (Art. 1649)
Lease

When in the contract of lease of things there is no express prohibition, the lessee may
Sublease
sublet the thing leased, in whole or in part, without prejudice to his responsibility for the
performance of the contract toward the lessor. (Art. 1650)

i. of House Rental Law (RA 877)

• subleasing is a ground for judicial ejectment
ii. obligation of sublessee to lessor (Art. 1651)
• sublessee is subsidiarily liable to lessor any rent due from lessee (Art. 1652)

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LEASE i. obligations of lessor (Art. 1654, 1661)

1)to deliver the thing leased in such a condition as to render it fit for the use intended
LEASE OF THINGS 2)to make the necessary repairs, unless there’s contrary stipulation
3)to maintain the lessee in peaceful and adequate enjoyment of the lease
4)to not alter the thing leased

Rights and ii. obligations of lessee (Art. 1657, 1662, 1663, 1665, 1668, 1667)
Obligations of 1)to pay the price of the lease
lessor and 2)to use the thing leased as a diligent father of a family
lessee 3)to pay expenses for the deed of lease
4)to tolerate urgent repairs
5)to notify the proprietor every usurpation or untoward act by any third person
6)to notify the owner of necessary repairs
7)to return the thing leased upon termination of the lease
8)to be liable for any deterioration caused by household members and by guests and
visitors
9)to be liable for the deterioration or loss of the thing leased

iii. right of lessee to suspend payment of rentals (Art. 1658)

•the lessee may suspend payment of rentals in case the lessor fails to make the
necessary repairs or to maintain the lessee in peaceful and adequate enjoyment of the
property leased

iv. right to ask for rescission (Art. 1659, 1660)

1)if the lessor or the lessee fails to comply with their obligations, the aggrieved party may
ask for rescission of the contract and damages, or only damages and the contract to
remain in force
2)the lessee may terminate the lease should the dwelling place or any other building
intended for human habitation bring imminent and serious danger to life or health

v. lessor not obligated to answer for mere act of tresspass by a third person (Art. 1664)
•the lessor is not obligated to answer for a mere act of trespass which a third person may
cause on the use of the thing leased

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LEASE OF THINGS

The lessor may judicially eject the lessee for any of the following causes (Art. 1673; Sec.
Grounds for
5, BP 877):
Ejectment of
Lessee by 1)expiration of the period for the lease contract;
Lessor 2)lack of payment of the price stipulated;
3)violation of any of the conditions agreed upon in the contract;
4)when the lessee devotes the thing leased to any use or service not stipulated which
causes the deterioration thereof; or if he does not observe the requirement in No. 2 of
Article 1657, as regards the use thereof.
5)assignment of lease or subleasing of residential units
6)arrears in payment of rental fees for a 3 months
7)legitimate need of owner/lessor to repossess his property
8)absolute ownership by the lessee of another dwelling unit in the same city/municipality
9)need of lessor to make necessary repairs of leased premises subject of condemnation
order

NOTE: The ejectment of tenants of agricultural lands is governed by special laws. (Art.
1673)

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LEASE OF THINGS

• If at the end of the contract the lessee should continue enjoying the thing leased for
Implied fifteen days with the acquiescence of the lessor, and unless a notice to the contrary by
Extension of either party has previously been given, it is understood that there is an implied new lease,
lease not for the period of the original contract, but for the time established in Articles 1682 and
1687. The other terms of the original contract shall be revived. (Art. 1670)

• The lease of a piece of rural land, when its duration has not been fixed, is understood to
have been for all the time necessary for the gathering of the fruits which the whole estate
leased may yield in one year, or which it may yield once, although two or more years
have to elapse for the purpose. (Art. 1682)

• If the period for the lease has not been fixed, it is understood to be from year to year, if
the rent agreed upon is annual; from month to month, if it is monthly; from week to week,
if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even
though a monthly rent is paid, and no period for the lease has been set, the courts may fix
a longer term for the lease after the lessee has occupied the premises for over one year.
If the rent is weekly, the courts may likewise determine a longer period after the lessee
has been in possession for over six months. In case of daily rent, the courts may also fix
a longer period after the lessee has stayed in the place for over one month. (Art. 1687)

• Except in cases stated in Article 1673, the lessee shall have a right to make use of the
periods established in Articles 1682 and 1687. (Art. 1675)

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LEASE OF THINGS

Right of • The purchaser of a piece of land which is under a lease that is not recorded in the
purchaser of Registry of Property may terminate the lease, save when there is a stipulation to the
leased land contrary in the contract of sale, or when the purchaser knows of the existence of the
lease.

If the buyer makes use of this right, the lessee may demand that he be allowed to gather
the fruits of the harvest which corresponds to the current agricultural year and that the
vendor indemnify him for damages suffered.

If the sale is fictitious, for the purpose of extinguishing the lease, the supposed vendee
cannot make use of the right granted in the first paragraph of this article. The sale is
presumed to be fictitious if at the time the supposed vendee demands the termination of
the lease, the sale is not recorded in the Registry of Property. (Art. 1676)

• The purchaser in a sale with the right of redemption cannot make use of the power to
eject the lessee until the end of the period for the redemption. (Art. 1677)

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LEASE OF THINGS

Useful If the lessee makes, in good faith, useful improvements which are suitable to the use for
Improvements in which the lease is intended, without altering the form or substance of the property leased,
good faith made the lessor upon the termination of the lease shall pay the lessee one-half of the value of
by lessee the improvements at that time. Should the lessor refuse to reimburse said amount, the
lessee may remove the improvements, even though the principal thing may suffer
damage thereby. He shall not, however, cause any more impairment upon the property
leased than is necessary.

With regard to ornamental expenses, the lessee shall not be entitled to any
reimbursement, but he may remove the ornamental objects, provided no damage is
caused to the principal thing, and the lessor does not choose to retain them by paying
their value at the time the lease is extinguished. (Art. 1678)

Special • The lessee shall have no right to a reduction of the rent on account of the sterility of the
provisions for land leased, or by reason of the loss of fruits due to ordinary fortuitous events; but he
leases of rural shall have such right in case of the loss of more than one-half of the fruits through
lands extraordinary and unforeseen fortuitous events, save always when there is a specific
stipulation to the contrary.

Extraordinary fortuitous events are understood to be: fire, war, pestilence, unusual flood,
locusts, earthquake, or others which are uncommon, and which the contracting parties
could not have reasonably foreseen. (Art. 1680)

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LEASE OF THINGS

Special • Neither does the lessee have any right to a reduction of the rent if the fruits are lost after
provisions for they have been separated from their stalk, root or trunk. (Art. 1681)
leases of rural
lands • The lease of a piece of rural land, when its duration has not been fixed, is understood to
have been for all the time necessary for the gathering of the fruits which the whole estate
leased may yield in one year, or which it may yield once, although two or more years
have to elapse for the purpose. (Art. 1682)

• The outgoing lessee shall allow the incoming lessee or the lessor the use of the
premises and other means necessary for the preparatory labor for the following year; and,
reciprocally, the incoming lessee or the lessor is under obligation to permit the outgoing
lessee to do whatever may be necessary for the gathering or harvesting and utilization of
the fruits, all in accordance with the custom of the place. (Art. 1683)

• Land tenancy on shares shall be governed by special laws, the stipulations of the
parties, the provisions on partnership and by the customs of the place. (Art. 1684)

• The tenant on shares cannot be ejected except in cases specified by law. (Art. 1685)

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LEASE OF THINGS

Special • In default of a special stipulation, the custom of the place shall be observed with regard
provisions for to the kind of repairs on urban property for which the lessor shall be liable. In case of
leases of urban doubt it is understood that the repairs are chargeable against him. (Art. 1686)
lands
• If the period for the lease has not been fixed, it is understood to be from year to year, if
the rent agreed upon is annual; from month to month, if it is monthly; from week to week,
if the rent is weekly; and from day to day, if the rent is to be paid daily. However, even
though a monthly rent is paid, and no period for the lease has been set, the courts may fix
a longer term for the lease after the lessee has occupied the premises for over one year.
If the rent is weekly, the courts may likewise determine a longer period after the lessee
has been in possession for over six months. In case of daily rent, the courts may also fix
a longer period after the lessee has stayed in the place for over one month. (Art. 1687)

• When the lessor of a house, or part thereof, used as a dwelling for a family, or when the
lessor of a store, or industrial establishment, also leases the furniture, the lease of the
latter shall be deemed to be for the duration of the lease of the premises. (Art. 1688)

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