CIVIL LAW CONCEPT OF PROPERTY 1)
2) Personal or movable (buenes muebles)
All things, whether tangible or intangible, which are, or
may be the object of appropriation
PROPERTY: AS A SUBJECT
- It is that branch of Civil Law which classifies and defines
the different kinds of appropriable objects.
Appropriation – defined as a verb as used in the definition of
property which means to allot for specific use. Distribute is a very
narrow word compared to appropriation. So anything that one can
possess that can be allotted for specific use is property under the
Civil Code.
 Thing – As used in the Civil Code, a thing is synonymous
to property. However, thing is broader than property
because thing can be something that can or cannot be
appropriated. It may refer to both appropriable or non-
appropriable objects.
Right to property
It is the juridical tie that entitles a person to make use,
enjoy, dispose, abuse, and recover the thing.
CLASSIFICATION OF THINGS:
According to the nature of their ownership:
1. res nullius – those belonging to no one: this is either because it
has not been appropriated, or there is abandonment
Examples:
i. Fishes swimming in the sea but once they are caught,
they are appropriated; they now belong to the fishermen. They
cease to be res nullius.
Things which have been abandoned by their owner without the
intention of owning them again;
2. res communes – those belonging to everybody: no one has the
right to appropriate the same exclusively at the expense of another
person
Examples: air we breathe, the sunlight, the wind
3. res alicujus – belonging to someone. These are objects that are
tangible/intangible, which are owned privately either in collective
or individual capacity. So if you own something like your clothes,
shoes, pen, land. These are res alicujus and are considered as
property.
3 CHARACTERISITICS OF PROPERTY. (Absent any one of this, the
thing may not be considered as property)
1) Utility, which means it is capable of satisfying human
wants, either for pleasure or for comfort. What do we
understand by pleasure or comfort? Anything or
something that can form part of the patrimony of man,
his estate, in order to satisfy his wants.
2) Susceptibility of appropriation. One characteristic of
property is that it is susceptible to be appropriated, so
that what cannot be appropriated cannot be considered
as property.
3) Individuality or Substantivity: Meaning the thing can
exist by itself; it is not a part of a whole. The example
given by Paras is the human hair. Once it is detached
then it becomes a property.
Art. 414: All things which are or may be the object of appropriation
are considered either:
1) IMMOVABLE OR REAL PROPERTY;
2) 2) MOVABLE OR PERSONAL PROPERTY.
 Classification of Property
Real or immovable (buenes immuebles)
 Importance of the Classification of Property Into Immovables
and Movables:
 They do not assume importance from the fact that they are
movables or immovables, but because different provisions of law
govern their acquisition, possession, disposition, loss and
registration.
Caltex vs. Central Board of Assessment Appeals (GR L-50466)
Facts: This case is about a realty tax on machinery and equipment installed by
Caltex in its gas stations located on leased land. The machines and equipment
consist of underground tanks, elevated tank, water tanks, gasoline pumps,
etc. The said machines and equipment are loaned by Caltex to gas station
operators under a lease agreement where it is stipulated that the operators,
upon deman, shall return to Caltex the machines and equipment in good
condition when received, ordinary wear and tear expected. Hence the lessor
of the land where the gas station is located does not become the owner of
the machines and equipment installed for ownership is retained by Caltex.
The city assessor of Pasay City characterized the said items as
taxable realty. The city board of tax appeals ruled that they are personal
property.
Issue: W/N the gas station equipment and machinery permanently affixed by
Caltex to its gas station and pavement should be subject to realty tax.
Held: Yes. Improvements on land are commonly taxed as realty even though
for some purposes they might be considered as personalty. It is a familiar
phenomenon to see things classed as real property for purposes of taxation
which on general principle might be considered personal property.
2. NAVARRO VS PINEDA (GR L-18456)
Facts: On Dec. 14, 1959, Rufino Pineda and his mother Juana borrowed
form Navarro the sum of Php 2, 550.00 payeable 6 months after or on
June 14. To secure the indebtedness, Rufino executed a document captioned
"DEED OF REAL ESTATE AND CHATTEL MORTGAGES", whereby
Juana, by way of real estate mortgage hypothecatd a parcel of land, and
Rufino by way of Chattel mortgage, mortgaged his 2 story residential house,
erected on the land of one Atty. Castro, and one motor truck. The debts
became due and demandable. However, the private respondents were
unable to pay despite extension grants.
Thereafter, the petitioner filed a complaint for foreclosure of the
mortgage and for damages.
Issue: W/N the residential house can be validly the subject of a chattel
mortgage
Held: Yes. The trial court did not predicate its decision declaring the deed of
chattel mortgage valid solely on the ground that the house mortgaged was
erected on the land which belonged to a third person, but also on the
doctrine of estoppel, in that "the parties have so expressly agreed" in the
mortgage to consider the house as a chattel "for its smallness and mixed
materials of sawali and wood". In a case, a mortgaged house built on a rented land, was
stands on a rented land belonging to another person, it may be
mortgaged as a personal property if so stipulated in the document of
mortgage. It should be noted, however, that the principle is predicated
on statements by the owner declaring his house to be a chattel, a conduct
that may conceivably estop him from subsequent claiming otherwise.
The doctrine, therefore, gathered from these cases is that
although in some instances, a house of mixed materials has been
considered as a chattel between the parties and that the validity of the
contract between them, has been recognized, it has been a constant
criterion nevertheless that, with respect to third persons, who are not
parties to the contract, and specially in execution proceedings, the
house is considered as an immovable property.
3. TUMALAD vs VICENCIO (GR L-30173)
Facts: On Sept. 1, 1955, defendants executed a chattel
mortgage in favor of the plaintiffs over their house of strong
materials located at No. 550 Int. 3, Quezon Blvd, Quiapo, erected
on lands which were being rented from Madrigal and Company Inc.
The mortgage was to guarantee a loan of Php 4, 800.00. When
defendants defaulted in paying, the mortgage was extrajudicially
foreclosed and sold at a public auction pursuant to the contract. As
the highest bidder, plaintiffs were issued a deed of sale.
Subsequently, plaintiffs filed a civil case praying, among others,
that the house be vacated and its possession surrendered to them.
Issue: W/N the house can be a valid subject of a chattel mortgage,
given the fact that it is made of strong materials
Held: The rule about the status of buildings as immovable has been
stated in many cases to the effect that "it is obvious that the
inclusion of the building, separate and distinct from teh land, in the
enumeration of what may constitute real properties (Art. 415)
could only mean one thing, that a building is by itself an immvable
property, irrespective of whether or not said structure and the land
on which it is adhered to belong to the same owner.
Certain exceptions have been recognized, however. In
the case at bar, the house on rented land is not only expressly
designated as Chattel Mortgage; it specifically provides that "the
mortgagor ... voluntarily CEDES, SELLS and TRANSFERS by way of
Chattel Mortgage he property together with its leasehold rights
over the lot on which it is constructed and participation ..."lthough
there is no specific statement referring to the subject house as
personal property, yet by ceding, selling or transferring a property
by way of chattel mortgage defendants-appellants could only have
meant to convey the house as chattel, or at least, intended to treat
the same as such, so that they should not now be allowed to make
an inconsistent stand by claiming otherwise. oreover, the subject
house stood on a rented lot to which defendants-appellants merely
had a temporary right as lessee, and although this can not in itself
alone determine the status of the property, it does so when
combined with other factors to sustain the interpretation that the
parties, particularly the mortgagors, intended to treat the house as
personalty. Also, unlike in the Iya cases, it is the defendants
themselves who are attackin the validity of the mortgage. The
doctrine of estoppel therefore applies to them.
2. ASSOCIATED INSURANCE AND SURETY CO. INC. V IYA (GR L-
10837), May 30, 1958
Facts: Spouses Valino were the owners and possessors of a
house of strong materials constructed on a lot located at Grace
Park Subd, Caloocan, Rizal which they purchased on installment
basis from the Phil. Realty Corp. To be able to purchse on credit
rice from the NARIC, Lucia filed a bond in the sum of Php 11,000
subscribed by the Associated Insurance Surety Co, and as counter-
guaranty, the spouses executed an alleged chattel mortgage on the
aforementioned house in favor of AISCO.
Having completed payment on the purchase price of the
lot, the Valinos were able to secure on October 18, 1958, a
certificate of title in their name. Subsequently, however, the
Valinos, to secure payment of an indebtedness in the amount of
P12,000.00, executed a real estate mortgage over the lot and the
house in favor of Isabel Iya, which was duly registered and
annotated at the back of the certificate of title.
On the other hand, as Lucia A. Valino, failed to satisfy
her obligation to the NARIC, the surety company was compelled to
pay the same pursuant to the undertaking of the bond. In turn, the
surety company demanded reimbursement from the spouses
Valino, and as the latter likewise failed to do so, the company
foreclosed the chattel mortgage over the house. As a result
thereof, a public sale was conducted wherein the property was
awarded to the surety company as the highest bidde The surety
company then caused the said house to be declared in its name for tax
purposes.
AISCO subsequently learned of the existence of the real estate
mortgage over the lot together with the improvements thereon and thus
instituted a civil case naming the spouses and Iya as defendants.
Held: A building cannot be divested of its character of a
realty by the fact that the land on which it is constructed belongs to another.
To hold it the other way, the possibility is not remote that it would result in
confusion, for to cloak the building with an uncertain status made dependent
on the ownership of the land, would create a situation where a permanent
fixture changes its nature or character as the ownership of the land changes
hands.In the case at bar, as personal properties could only be the subject of a
chattel mortgage (Section 1, Act 3952) and as obviously the structure in
question is not one, the execution of the chattel mortgage covering said
building is clearly invalid and a nullity. While it is true that said document was
correspondingly registered in the Chattel Mortgage Register of Rizal, this act
produced no effect whatsoever for where the interest conveyed is in the
nature of a real property, the registration of the document in the registry of
chattels is merely a futile act. Thus, the registration of the chattel mortgage
of a building of strong materials produce no effect as far as the building is
concerned.
 Human organ can be a subject of donation because there is a law
allowing donations of human organs. In other words, for purposes
of donations, human organs can be considered as property for
purposes of giving effect thereto.
 A dead body by law belongs to no one and is therefore under the
protection of the public. There can be no property in the person
deceased.
LEUNG YEE vs. STRONG MACHINERY
GR No. L-11658. February 15, 1918
Parties to a contract may treat a real property by nature as personal
property. However, this is only binding insofar the parties are concerned and
do not affect third persons.
FACTS
Compania Agricola Filipina purchased rice-cleaning machineries from
STRONG MACHINERY. A chattel mortgage was executed to secure payment
of the sale, involving a building with the exclusion of the land on which it
stood. Unable to pay the debt upon due, the mortgaged property was
auctioned by the sheriff and was bought by STRONG MACHINERY. The sale
was registered in the chattel mortgage registry and STRONG MACHINERY
came into possession of said property.
While a chattel mortgage was executed between Compania Agricola Filipina
and STRONG MACHINERY, the former also entered into another mortgage
concerning the same building with LEUNG YEE. Unable to pay, the building
was auctioned by the sheriff and was bought by LEUNG YEE. The sale was
registered in the land registry.
When the execution was levied upon the building, STRONG MACHINERY,
being in possession of the property, demanded its release from the levy.
LEUNG YEE filed an action to recover the possession of the property.
ISSUES
(1) Whether or not parties to a contract may treat an immovable property as
personal property.
(2) Whether or not LEUNG YEE was bound by the chattel mortgage on the
building executed between Compania Agricola Filipina and STRONG
MACHINERY.
RULING
(1) YES, parties to a contract may treat an immovable property as
personal property. However, the building was real property and that mere
fact that the parties seem to have dealt it separate and apart from the land
on which it stood no wise changed its character as real property. Its
annotation in the Chattel Mortgage Registry could not be given the legal
effect of registration in the Registry of Real Property.
(2) NO, he was not. LEUNG YEE was not bound by the chattel
mortgage on the building executed between Compania Agricola Filipina and
STRONG MACHINERY. To treat a real property, a building in this case, as
personal property, is only binding between the contracting parties
and does not affect third persons. Hence, LEUNG YEE, being a third
person to the agreement, was not bound by it. However, because
there was bad faith on the part of LEUNG YEE since he purchased
the building despite having knowledge that STRONG MACHINERY
had previously purchased it, the court ruled that the latter has
rightful ownership over it.
NAVARRO vs. PINEDA
GR No. L-18456. November 30, 1963. 9 SCRA 631
Where a house standing on a rented land is made subject of a
chattel mortgage, its validity cannot be assailed by the contracting
parties based partly upon the principle of estoppel.
FACTS
PINEDA and GONZALES borrowed P2,550.00 from plaintiff
NAVARRO, which was payable in 6 months. To secure the debt,
PINEDA mortgaged: (1) his 2-story residential house situated on a
lot belonging to another, and (2) 1 motor truck by was of chattel
mortgage. GONZALES on the other hand, mortgaged her parcel of
land by way or real estate mortgage. A Deed of Real Estate and
Chattel Mortgages was executed. Both mortgages were registered
with the Registry of Deeds and Motor Vehicles Offices.
When the debt became due and PINEDA and GONZALES were
unable to pay, NAVARRO granted them 2 extensions but they still
failed to give payment. NAVARRO then filed a complaint for the
foreclosure of the mortgage and for damages. In a Stipulation of
Facts submitted by the parties in court, PINEDA and GONZALES
admitted their indebtedness to NAVARRO and that it was already
long due and unpaid. They also contended that only movables can
be subject of a chattel mortgage that the chattel mortgage of
PINEDA’s house which was erected on a lot belonging to another
person made the Deed of Real Estate and Chattel Mortgages
invalid. The court however, ordered the auction of the mortgaged
properties.
Hence, this appeal by PINEDA, contending that his house which was
built on a lot not owned by him was real property that the chattel
mortgage on said house was invalid.
ISSUE
Whether or not the Deed of Real Estate and Chattel Mortgages
is valid when the house PINEDA made subject of the chattel
mortgage was erected on a land belonging to a third person.
RULING
YES, the mortgage was valid. Where a house stands on a rented
land belonging to another person, it may be subject matter of a
chattel mortgage, the validity of which cannot be assailed by the
contracting parties based partly upon the principle of estoppel.
Parties to a contract may by agreement treat as personal property
that which by nature would be real property but is only binding in
so far as the contracting parties are concerned.
In the case at bar, the house was treated was a personal or
movable property by the parties to the contract themselves. In fact,
in the Deed of Real Estate and Chattel Mortgages executed by
PINEDA, said house was referred to as “personal property” and a
“chattel” for its smallness and mixed materials of sawali and wood,
which was to be conveyed by way of chattel mortgage. With this,
PINEDA and GONZALES are estopped to question the validity of the
mortgages.
SORIANO vs. GALIT
GR No. 156295. September 23, 2003. 411 SCRA 631
A building in itself is considered immovable. It may then be a
subject of a real estate mortgage separate from the land.
FACTS
GALIT contracted a P480,000.00 loan from SORIANO. The loan was
secured by a real estate mortgage over a parcel of land. For failure
to pay his obligation, SORIANO filed a complaint for sum of money against
GALIT. The court then ordered the sheriff to levy the GALIT spouses’
properties: (1) a parcel of land, (2) a storehouse and (3) bodega. During the
public auction, SORIANO was the only and highest bidder. A Certificate of
Sale of Execution of Real Property was issued. However, the Certificate of
Sale registered by SORIANO with the Registry of Deeds included: (1) a parcel
of land and (2) the land on which the storehouse and bodega was erected. He
then filed a petition for the issuance of a writ of possession over the land on
which the storehouse and bodega were situated. The petition was granted by
the court.
GALIT spouses assailed via certiorari the inclusion of the land on which the
storehouse and bodega was built on since only the 2 buildings were deemed
sold to SORIANO to the exclusion of the land. The petition was granted and
the writ of possession issued to SORIANO was declared null and void. Hence,
this appeal by SORIANO.
ISSUE
Whether or not the purchase of the of the 2 buildings necessarily included
the land on which they were constructed on since they are immovable
properties.
RULING
NO, it did not. Buildings in themselves may be mortgaged apart form the land
on which they have been built on. Such would still be considered immovable
property even if dealt with separately and apart from the land. In fact, the
Civil Code separately enumerated lands and buildings as immovable
property. Hence, a building, by itself, is considered immovable.
IMMOVABLE PROPERTY
ART. 415: The following are immovable property:
1) Land, buildings, roads and constructions of all kinds
adhered to soil;
2) Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of an
immovable;
3) 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;
4) Statues, reliefs, paintings, or other objects for use or
ornamentation, placed in buildings or on lands by the
owner of the immovable in such a manner that it reveals
the intention to attach them permanently to the
tenements.
5) Machinery, receptacles, instruments or implements
intended by the owner of the tenement for an 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.
6) 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 par of it; the animals in these
places are included;
7) Fertilizer actually used on a piece of land;
8) Mines, quarries, and slag dumps while the matter
thereof forms part of the bed and waters either running
or stagnant;
9) 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;
10) Contracts for public works, and servitudes and other real
rights over immovable property.
CLASSES OF IMMOVABLE PROPERTY:
1. Immovable by NATURE – those which cannot be moved from
place to place by their very nature such as land, mines, slag
dumps;
 2. Immovable by INCORPORATION – those which are
essentially movables, but are attached to an
immovable in such a manner as to become an
integral part thereof. Examples of which are those
mentioned in Art. 415 par. 1, 2, 3, 4, and 6.
3. Immovable by DESTINATION - those which are
essentially movables, but by the purpose for which
they have been placed in an immovable, partake
the nature of the latter, such as those mentioned
in Art. 415 par. 4, 6, 7, and 9.
4. Immovable by ANALOGY or by LAW – those
mentioned in Art. 415 par. 10, right of usufruct,
easements, and servitudes
Paragraph 1: Land, buildings, roads and constructions of all
kinds adhered to soil;
 Land is immovable by NATURE.
 The buildings, roads, and constructions are immovable
by INCORPORATION because they form part of an
immovable or that they are adhered into the soil.
Paragraph 2: Trees, plants, and growing fruits, while they are
attached to the land or form an integral part of an
immovable;
 They can be considered as immovable by nature or
incorporation.
 By NATURE if they are spontaneous products of the soil
(naturally grows in the land).
 By INCORPORATION if they are essentially attached or
planted in the land in such a manner to be an integral
part thereof.
 Once, they are removed from or no longer adhered to
the land, they become movables except if they timber
from the timberland.
Paragraph 3: 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;
 These are immovables by INCORPORATION because
they cannot be separated from the immovables without
breaking or substantial deterioration. The fact of
incorporation determines the immovability of the thing.
 It is not necessary that the objects are placed by the
owner in order to determine its immovability
Paragraph 4: Statues, reliefs, paintings, or other objects for
use or ornamentation, placed in buildings or on lands by
the owner of the immovable in such a manner that it
reveals the intention to attach them permanently to the
tenements.
 It is necessary that the owner of the immovable
property must place the object to the immovable
property.
 The properties here are essentially movable but they
become immovable under PARAGRAPH 4 because of
the purpose of the owner to attach them permanently
to the immovable;
GR: to be considered as immovable, the machineries
must be placed by the owner. If it is not placed by the
owner, then it is considered as movable.
Exceptions:
1) if it is placed by the tenant acting as agent of the owner
of the immovable;
2) if the tenant has promised, or agreed in the contract
that the tenant would leave the machinery or the
equipment to the owner of the land even after the lease
has expired.
 Paragraph 5: Machinery, receptacles, instruments or
implements intended by the owner of the tenement for an
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.
o REQUISITES:
1. the machineries must be placed by the owner of the
immovable or his agent or his duly authorized
representatives;
2. there must be an industry, business, or work must be carried
on in building or the land;
3. the machineries must tend directly to meet the need of such
industry or said work;
4. the machines must be essential and principal elements of
the industry.
 The properties here are essentially movable but
they become immovable under PARAGRAPH 5,
because they are used in the industry, or in a
business and placed by the owner of the
immovable.
o What is the effect of the separation of these
machineries in Paragraph 5? If the purpose is no
longer there, they become movables. But if the
separation is merely temporary, and there is that
very intention to return them, then their
immovable character remain
MACHINERY ENGINEERING SUPPLY V CA
Facts: MES filed a complaint for replevin against Ipo Limestone Co for the
recovery of the machineries and equipments sold and delivered to the latter.
The judge issued an order commanding the provincial sheriff to seize and
take possession of the properties.
Thereafter, the sheriff went to Bulacan for the purpose of carrying
out the court's order. The manager of Ipo protested the seizure on the
ground that the same were not personal property as dismantling them would
result to damages to the wooden frames attached.
The petitioner claims that the machineries and equipment seized
are still MES properties until fully paid for and as such never became
immovable.
Issue: Should the sheriff execute the writ and confiscate the machines?
Held: The machinery in question appeared to be attached to the land,
particularly to the concrete foundation, in a fixed manner, in such a way that
the former could not be separated from the latter without breaking the
material or deterioration of the object. Hence, they are considered real
property and not subject to replevin.
NB: the issue of ownership of the materials were not raised in the CFI hence
not discussed by the SC.
DAVAO SAW MILL VS CASTILLO
Facts: DSM operated a sawmill in DC. The land upon which the business was
conducted belonged to another person. On the land, DSM erected a building
which housed the machinery used by it. The machines were placed and
mounted on foundations of cement. The contract of lease between DSM and
the owner provided that all improvements and buildings introduced and
erected by DSM shall pass to the exclusive property of the owner with the
exception that the machineries and accessories are not included as
improvements.
In another action brought by Davao Light against DSM, judgment
was rendered against the latter and a writ of execution was issued thereon,
and the machines were levied as personalty by the sheriff. DSM now
contends that the machines are real property (by destination), and thus
cannot be levied.
Held: Machine is movable by nature and only becomes immobilized when
placed in a plant by the owner of the property or plant. Such result would not
be accomplished, therefore, by the placing of machinery in a plant
by a tenant or usufructuary or any person having only a temporary
right. The distinction rests, as pointed out by Demolombre upon
the fact that one only having a temporary right to the possession or
enjoyment of property is not presumed by the law to have applied
movable property belonging to him so as to deprive him of it by
causing it by an act of immobilization to become the property of
another.
It follows that the machinery put by DSM did not lose its
character of movable property and become immovable by
destination. Hence could be levied.
The concrete immobilizatoin (of the improvements, etc)
took place because of the express provisions of the lease, since the
lease deprived the tenant of any right to charge against the lessor
the cost, and it was expressly stipulated that the improvements, etc
should become part of the property belonging to the owner
without compensation to the lessee. Under such conditions, the
tenant was acting but an agent of the owner, and the
immobilization which resulted arose in legal effect from the act of
the owner in giving by contract a permanent destination of the
machinery.
MINDANAO BUS CO VS. CITY ASSESSOR
Facts: This is a petition to review the decision of the Court of Tax
Appels in holding that the MBC is liable to the payment of the
realty tax on its maintenance and repair equipment.
Held: Movable equipments to be immobilized in contemplation of
the law must first be "essential and principal elements" of an
industry or works without which such industry or works would be
"unable to function or carry on the industrial purpose for which it
was established."
The tools and equipments in question in this instant
case are, by their nature, not essential and principal elements of
petitioner's business of transporting passengers and cargoes by
motor trucks. They are merely incidentals-acquired as movables
and used only for expediency to facilitate and/or improve its
service. Even without such tools and equipments, its business may
he carried on since it can be repaired or serviced in a shop
belonging to another.
Aside from the element of essentiality the above-quoted
provision also requires that the industry or works he carried on in a
building or on a piece of land. In the case at bar the equipments in
question are destined only to repair or service the transportation
business, which is not carried on in a building or permanently on a
piece of land, as demanded by the law.
BERKENKOTTER VS CU UNJIENG
Facts: There is a sugar central (Malabacat Sugar Co), several
machines were installed in the plant. Now, there was a need for the
plant to increase its production. They needed to install additional
machines. The problem is that these machineries were purchased
on account and the whole of the plant, including the land were the
subject of a real estate mortgage. What compounds the problem is
that merong mga machines installed after the execution of the real
estate mortgage.
Now, hindi nabayaran yung loan ng mga machines. So
that finoforclose na ngayon yung mortgage. Sabi ng Malabacat,
okay you can foreclose all the mortgage but exclude the machines
since they are not part of the real estate mortgage because they
are not real property due to the fact that the price is unpaid.
Issue: Are after acquired machines covered by the real estate
mortgage executed before acquisition of the same?
Held: Machinery intended by the owner of the building or land used in
connection to any industry or trade being carried on therein and which are
expressly adopted to meet the requirements of such trade, are considered as
real property.
- Paragraph 8: Mines, quarries, and slag dumps while the matter
thereof forms part of the bed and waters either running or
stagnant;
Slag dump - these are dirt and soil taken form a mine and piled upon the
surface of the ground. You can find minerals inside the dump.
o They are considered immovables while they form part of the
bed. le. But once the minerals are extracted from the land
like gold, they become movable. So, this is immovable by
incorporation, for as long as they are part of the soil.
- Paragraph 9: 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;
o So the docks and structures have to be fixed. But if you
have a houseboat that moves from one place to
another, it is not considered immovable but movable.
o Vessels, ships no matter how big they are, are movable
properties.
o In the case PRC V JARQUE, this illustrates the fact that
vessels are considered as personal property. It’s just
that when it comes to vessels, there are certain
requirements for a sale to be valid and binding against
3rd persons such as registration in the Registry of
Property Vessels and the affidavit of good faith. But
just take note that if a vessel is a subject of transaction,
it is definitely movable.
- Paragraph 10: Contracts for public works, and servitudes and
other real rights over immovable property.
o The contract itself, the piece of paper is not immovable
but movable. But what is written on the piece of paper,
if it is a contract for public works, then that is a real
property.
o So if you have a right over immovable property, you
have the right to sue somebody over the immovable
property in which such right is also considered as
immovable. So, there are 2 properties here:
o We call this real property by ANALOGY because these
rights involve here are not material but they partake
the essential characteristics of the immovable
property.
PRC vs. JARQUE GR No. L-41506. March 25, 1935
Ship Vessels are personal property but when it is a subject of a
chattel mortgage, the absence of an Affidavit of Good Faith as
required under the Mortgage Law makes the mortgage void.
FACTS
PHILIPPINE REFINING CO. (PRC) and JARQUE executed 3 mortgages on
the vessels Pandan and Zaragosa. The 2 vessels were referred to as “chattel
mortgage”. A 4th mortgage was executed between JARQUE and Aboitiz on
the vessel Zaragosa, which was entered in the chattel mortgage registry.
A petition to declare JARQUE as an insolvent debtor was filed in court.
After said petition was granted, all of JARQUE’s properties were assigned to
Corominas. However, the judge refused to order the foreclosure of the
mortgages in favor of PRC declaring that it contained defects. Being that
chattel mortgages require an Affidavit of Good Faith for their validity, the
first 2 mortgages lacked such affidavit and while although the 3rd mortgage
contained such, it was not registered within 30 days before the
commencement of the insolvency proceedings against JARQUE.
On appeal, PRC contended that the vessels do not need said Affidavit of
Good Faith on the ground that they were real property.
ISSUE
Whether or not motor vessels are real property that when mortgaged,
they do not need an Affidavit of Good Faith to be valid.
RULING
NO, motor vessels are not real property but are rather
personal property under both the civil and common laws. Hence,
they are subject under the Chattel Mortgage Law. A mortgage on a
vessel is generally like any other chattel mortgage as to its
requisites and validity. The difference is that the title to a vessel
subject of a mortgage should be recorded not with the Registry of
Deed but rather with the Collector of Customs of the port of entry.
The Chattel Mortgage Law includes the requirement of an
Affidavit of Good Faith appended to the mortgage and recorded
therewith. The absence of said affidavit vitiates a mortgage as
against creditors and subsequent encumbrancers. Being that no
affidavit was executed, the mortgage was lacking and was rule
unenforceable against third persons.
CALTEX vs. CBAA
GR No. L-50466. May 31, 1982. 114 SCRA 296
Gas station equipment and machinery are taxable as realty because
without them, a gas station would entirely be useless. Some
improvements although have a characteristic of personalty are
taxed as real property.
FACTS
CALTEX loaned to gas station operators, gas station equipments
and machineries under an appropriate lease agreement or receipt.
Said machineries and equipments consist of underground tank,
elevated water tanks, water tanks, gasoline pumps, computing
pumps, car washer, car hoists, truck hoists, air compressors, etc.
In the contract, it was stipulated that these equipments and
machineries would still be owned by CALTEX during the period of
lease. The operators shall also return to CALTEX these equipments
upon demand or upon the expiration of the contract in good
condition as when received, ordinary tear and wear accepted.
The CITY ASSESSOR OF PASAY characterized these machines as real
property and thus taxable. On appeal by CALTEX, the City Board of
Tax Appeals declared it as personalty. Upon appeal of the CITY
ASSESSOR OF PASAY to the CENTRAL BOARD OF ASSESSMENT
APPEALS (CBAA), the latter declared said machineries as real
property and hence, taxable.
CALTEX filed a petition via certiorari with the SC to set aside the
resolution of the CBAA and to declare said machineries as personal
property and hence, not taxable. It contended that their case was
similar with the Davao Saw Mills case, wherein machinery fixed on
rented property was ruled as personal property.
ISSUES
(1) Whether or not the gas station equipment and machinery were
immovable property.
(2) Whether or not gas station equipment and machinery
permanently fixed by CALTEX to its gas station and pavement which
are taxable realty, subject to realty tax.
RULING
(1) The court did not rule on the mobility or immobility of the
gas station equipment and machinery.
(2) YES, they are subject to realty tax. These gas station
equipment and machinery are taxable improvements as
appurtenances to the gas station building or shed owned by
CALTEX, the latter, which are also taxable realty. It is because
without these equipment and machinery, the gas station would be
useless. Improvements on land are commonly taxed as realty even
though for some purposes, they might be considered personalty. It
is a familiar phenomenon to see things classed as real property for
purposes of taxation which on general principle might be
considered personal property.
BENGUET CORP. vs. CBAA
GR No. 106041. January 29, 1993. 218 SCRA 271
A dam is an immovable property by nature and by incorporation.
Hence, it is subject to realty tax.
FACTS
BENGUET CORP. owned a mine and a dam. The Provincial Assessor of
Zambales classified the dam as a taxable improvement of the mine. On
appeal by BENGUET CORP. to the CENTRAL BOARD OF ASSESSMENT APPEALS
(CBAA), the latter declared that the tailings dam and the land submerged
under it are subject to realty tax.
BENGUET CORP. then filed a petition to the SC via certiorari asking the court
set aside the resolution of CBAA. It contended that the dam should not be
subject to tax because it was not an assessable improvement of the mine but
rather an integral part of the mine’s operation. The Sol. Gen argued however
that the dam was an assessable improvement because it enhanced the value
and utility of the mine like holding waste from the mine and impounding
water for recycling.
ISSUE
Whether or not the dam was an assessable improvement of the mine and
thus subject to realty tax.
RULING
YES, the dam was an assessable improvement of the mine and subject to
realty tax. The mine can operate without the dam because the primary
function of the dam is merely to receive and retain the wastes and water
coming from the mine. There was no allegation that it was the only source of
water as to make the dam an integral part of the mine.
The Real Property Code did not define what is real property that the
definition in Art. 415 of the Civil Code shall apply. The dam was an
immovable under pars. 1 and 3 of Art. 415 hence it was taxable realty. Under
par. 1, the dam was an immovable property since it was a construction
adhered to the soil. Under par. 3, it was an immovable since it was fixed in a
manner that it cannot be separated from the land without breaking or
deteriorating.
SERG’S PRODUCTS vs. PCI
GR No. 137705. August 22, 2000. 338 SCRA 499
Immovable property, when deemed as personal property in an agreement
cannot be assailed by the contracting parties by virtue of the principle of
estoppel. It can then be a valid subject of a replevin.
FACTS
SERG’S PRODUCTS owned a sum of money from PCI LEASING AND FINANCE.
Unable to pay, PCI LEASING filed an application for a sum of money and for a
writ of replevin to obtain machineries against SERG’S PRODUCTS. Upon the
issuance of the replevin, the sheriff seized 1 machinery of SERG’S PRODUCTS
with word that he will come back for the others. SERG’S PRODUCTS prayed to
the court that the enforcement of the replevin be prevented on the ground
that the machineries were real property by immobilization and thus not
subject to said replevin. PCI LEASING on the other hand contended that the
machines were personal property. The sheriff came back to seize 2 more
machines but failed.
The Court of Appeals classed the machineries as personal property and had
only been leased and not owned by SERG’S PRODUCTS. Hence this appeal.
ISSUES
(1) Whether or not the machineries became real property by virtue of
immobilization.
(2) Whether or not the machineries could be subject of a replevin.
RULING
(1) YES, the machineries became real property by virtue of
immobilization. The machineries were real property under par. 5 of Art. 415
being that:
1) they were placed by SERG’S PRODUCTS, the owner of the tenement,
(2) they were intended for an industry, which in this case is the chocolate-
making industry and
(3) they were essential to said industry.
Hence, although each of them was movable or personal property on its own,
all of them have become immobilized by destination because they are
essential and principal elements of the industry.
However, in the Lease Agreement executed between SERG’S PRODUCTS and
PCI LEASING, said machineries were referred to as personal property.
Contracting parties may validly stipulate that a real property be considered as
personal but is only good between them and do not affect third
persons. After agreeing on such stipulation, they are consequently
estopped from claiming otherwise. SERG’S PRODUCTS now, is
estopped from claiming that said properties were real property
when it had formerly agreed in the Lease Agreement that said
properties were personal properties.
(2) YES, the machineries can be the subject of a replevin
because although they were real property by nature, they became
personal property by agreement.
ARTICLE 416: The following things are deemed to be personal
property:
Those movables susceptible of appropriation which are not
included in the preceding article;
Real property which by special provision of law is considered
as personalty;
Forces of nature which are brought under control by science;
and
In general, all things which can be transported from place to
place without the impairment of the real property to
which they are fixed.
- Two tests to determine whether the property is
movable or immovable
o the test by description:
 if the property is capable of being moved from place to
place, then it is movable;
 If such change in location can be made without injury to
real property to which in the meantime attached, it is
movable.
the test by exclusion:
 If it is not enumerated under Art 415, then it is
considered as movable
 But you have to take into account the special provision
of law to which makes immovable property movable for
that particular purpose.
SIBAL vs. VALDEZ
GR No. 26278. August 4, 1927
The Chattel Mortgage Law fully recognizes that “growing crops” are
personal property. The existence of a right on the growing crop is a
mobilization by anticipation. Being personal property, it could not
be subject of redemption.
FACTS
The sugar cane on 7 parcels of land owned by SIBAL was foreclosed
by the court. VALDEZ purchased the sugar cane on said 7 parcels of
land. Macondray & Co. on the other hand bought the 8 parcels of
land owned by SIBAL. For account of the redemption price of said
parcels, SIBAL paid Macondray & Co. P2,000.00. VALDEZ purchased
from Macondray & Co. all its rights and interests in the 8 parcels of
land by virtue of the P2,000.00 paid by VALDEZ to Macondray.
Thereafter, VALDEZ became the absolute owner of the 8 parcels of
land.
SIBAL offered to redeem the sugar cane he planted but VALDEZ
refused on the ground that the sugar cane was personal property
and was not therefore subject of redemption. SIBAL on the other
hand, contended that the sugar cane was real property as deemed
under par. 2 of Art. 415 of the Civil Code where growing crops,
while they are attached to the land or form part of an immovable
are immovable property. The court decided in favor of VALDEZ.
Hence, this appeal.
ISSUE
Whether or not the sugar cane was personal property and could
not be subject of redemption.
RULING
YES, the sugar cane was personal property. Although par. 2 of Art. 415 of the
Civil Code states that growing crops, while they are attached to the land or
form part of an immovable are immovable property, par. 2 of Art. 416 state
that real property which by any special provision of law is considered as
personalty.
The special provision of law in this case is found in the Chattel Mortgage Law.
The Chattel Mortgage Law fully recognizes that “growing crops” are personal
property. Hence, for purposes of attachment of property, execution of
judgment and the Chattel Mortgage Law, growing crops or ungathered
products raised by early labor and cultivation are considered personal
property. The existence of a right on the growing crop is a mobilization by
anticipation. Therefore, the sugar cane, being personal property could not be
subject of redemption.
ARTICLE 417: The following are also considered as personal
property:
Obligations and actions which have for their object
movables or demandable sums; and
Shares of stocks of agricultural, commercial, and
industrial entities, although they may have real
estate.
ARTICLE 418: Movable property is either consumable or non-
consumable. To the first class belong those movables which cannot
be used in a manner appropriate to their nature without their being
consumed; to the second class belong all the others.
Classification of movable property
1. As to nature: consumables and non-consumables
2. As to the intention of the parties: Fungible and non-fungible
 Consumable - refers to things whose use according to their nature
destroys the substance of the thing or causes loss to the owner.
 Non- consumable – refers to any other kind which cannot be
consumed.
 Fungible can be replaced by an equal quality or quantity either by
the nature of the thing or by agreement. A thing may be fungible
or non-fungible depending upon the intention of the parties.
PROPERTY IN RELATION TO WHOM IT BELONGS
ARTICLE 419: Property is either of public dominion or of private
ownership.
 Properties are owned either:
1. in a public capacity (dominio publico)
- The function of administering and disposing of
lands of the public domain in the manner prescribed
by law is not entrusted to the courts but to
executive officials. (Bautista v Barza)
2. in private capacity (propiedad privado)
- Regarding the state, it may own properties both
in its public capacity (properties of the public
dominion) and in its private capacity (patrimonial
property).
ARTICLE 420: The following things are property of public
dominion:
1. Those intended for public use such as roads, canals,
rivers, torrents, ports, and bridges constructed by the
State, banks, shores, roadsteads, and others of similar
character;
2. Those which belong to the State without being for public
use and are intended for some public service and for the
development of the national wealth.
PUBLIC DOMINION – means ownership by the State and that the State has
control and administration or ownership by the public in general, in that not
even the State or subdivisions thereof may make them the object of
commerce as long as they remain properties for public use such as
a river or town plaza.
3 kinds:
1. for public use – like roads, canals
 To constitute public use, the public in general
should have equal or common rights to use the
land or facility involved on the same terms,
however limited in the number who can actually
avail themselves of it at a given time. The yardstick
now is the opportunity to use of the property is
open to all under the same terms and conditions
2. for public service – like the national government
building, army rifles, (may be used only by duly
authorized persons)
3. for the development of national wealth – natural
resources
REPUBLIC VS GONZALES
Wherein a parcel of land has been leased to a private individual,
so there were improvements on these properties. Later on,
there was a need to widen the road so the lease was cancelled.
The lessee contended that the taking is not for public use
because the people who are going to benefit from the widening
of the road will be those people who have cars.
The SC held the conception urged by appellants to
restrict property reserved for public use to include only property
susceptible of being used by a generally unlimited number of
people is flawed and obsolete. The number of users is not the
yardstick. To constitute public use, the public in general should
have equal or common rights to use the land or facility involved on
the same terms, however limited in the number who can actually
avail themselves of it at a given time.
The yardstick now is the opportunity to use the property
is open to all under the same terms and conditions.
CITY OF MANILA vs. GARCIA
GR No. L-26053. February 21, 1967
Public property are outside the commerce of men and could not
have been a lawful subject of a lease agreement.
FACTS
The CITY OF MANILA owed parcels of land, forming one compact
area in Malate, Manila. Shortly after liberation from 1945 to 1947,
GARCIA ET AL. entered upon these premises and built houses of
second-class materials without the CITY OF MANILA's knowledge
and consent, and without the necessary building permits from the
city. There, they lived thru the years.
Later on, when the presence of GARCIA ET AL. have been
discovered, some of them were given by Mayor Fugoso lease
contract permits to occupy specific areas in the property upon
conditions therein set forth and for nominal rentals charged. The
rest of the 23 defendants though, exhibited none.
Epifanio de los Santos Elementary School, which was close, though
not contiguous to the property, came for the need of an expansion.
The City Engineer, pursuant to the Mayor's directive to clear
squatters' houses on city property, gave GARCIA ET AL. 30 days to
vacate and remove their constructions or improvements on the
premises and to pay for the amount due by reason of their
occupancy. They however refused. They sought to recover the
possession of the property in court. However, judgment was
against them. Hence, they appealed.
ISSUES
(1) Whether or not GARCIA ET AL. had the right to remain in the
premises.
(2) Whether or not they have acquired the status of legal tenants by reason
of the lease contract permits issued by the mayor.
RULING
(1) NO, they did not have the right. Defendants had absolutely no
right to remain in the premises. The excuse that they had permits from the
mayor is at best flimsy. The city's right to throw defendants out of the area
could not be gainsaid. The city's dominical right to possession is paramount.
If there was error in the finding that the city needs the land, such error is
harmless and will not justify reversal of the judgment below.
The houses and constructions planted by defendants on the premises clearly
hindered and impaired the use of that property for school purposes, hence,
constituted public nuisance per se. The selfish interests of defendants must
have to yield to the general good for the use of the property for a badly
needed school building, so as not to prejudice the education of the youth of
the land. The public purpose of constructing the school building annex is
paramount.
(2) NO, they have not acquired the legal status of tenants. Their
homes were erected without city permits. These constructions were illegal. In
a language familiar to all, defendants were squatters. Squatting is unlawful
and no amount of acquiescence on the part of the city officials will elevate it
into a lawful act. Official approval of squatting should not, therefore, be
permitted to obtain in this country where there is an orderly form of
government. The permits then were null and void. The property in
controversy was not a valid subject for lease because of the fact that public
property are outside the commerce of men and could not have been a lawful
subject of a lease agreement.
REPUBLIC vs. VDA. DEL CASTILLO
GR No. L-69002. June 30, 1988
Property of public dominion being outside the commerce of men, could not
be subject to registration and they could not be acquired by prescription.
FACTS
The late MODESTO CASTILLO applied for the registration of two parcels of
land located in Tanauan, Batangas. In a decision of the court, MODESTO
CASTILLO, who was married to AMANDA LAT, was declared the true and
absolute owner of the land with the improvements thereon and an original
certificate of title was issued to him by the Register of Deeds. By virtue of an
instrument, the 2 lots were consolidated and sub-divided into 9 lots. After
the death of MODESTO CASTILLO, AMANDA LAT VDA. DE CASTILLO and co-
defendants executed a deed of partition and assumption of mortgage in
favor of the latter. As a result of which, new transfer certificates of title were
issued to them.
The REPUBLIC OF THE PHILIPPINES filed a case with the lower court for the
annulment of said certificates of title issued to VDA. DE CASTILLO ET AL., as
heirs/successors of MODESTO CASTILLO and for the reversion of the lands
covered thereby to the State. It was alleged that said lands had always
formed part of the Taal Lake, washed and inundated by the waters thereof
and being of public ownership, it could not be the subject of registration as
private property. DEFENDANTS on the other hand alleged that the
Government's action was already barred by the decision of the registration
court, that the action has prescribed, and that the government was estopped
from questioning the ownership and possession of appellants.
The lower court ruled in favor of the REPUBLIC OF THE PHILIPPINES.
However, The Court of Appeals on appeal reversed and set aside the
appealed decision. Hence, thIS instant petition.
ISSUES
(1) Whether or not the Government's action was already barred by the
decision of the registration court under the principle of res adjudicata.
(2) Whether or not the action has prescribed.
RULING
(1) NO, it was not. Under par. 1, Art. 420 of the Civil Code, shores are
properties of the public domain intended for public use. Thus, it has long
been settled that portions of the foreshore or of the territorial waters and
beaches could not be registered. Their inclusion in a certificate of title did not
convert the same into properties of private ownership or confer title upon
the registrant. The property in controversy were not subject to registration,
being outside the commerce of men; and that since the lots in litigation were
of public domain, the registration court did not have jurisdiction to
adjudicate said lands as private property, hence, res judicata did
not apply.
(2) NO, the action has not prescribed. One of the characteristics of
property falling under public dominion is that they could not be
acquired by prescription as again, they are outside the commerce
of men. The defense of long possession is likewise not available in
this case because, as already ruled by this Court, mere possession
of land does not by itself automatically divest the land of its public
character.
REPUBLIC vs. CA
GR No. 100709. November 14, 1997
Shores are property of public dominion. When the sea moved
towards the estate and the tide invaded it, the invaded property
became foreshore land and passed to the realm of the public
domain.
FACTS
MORATO filed a free patent application on a parcel of land situated
at Calauag, Quezon. The patent was approved and the Register of
Deeds issued an original certificate of title to MORATO. Both the
free patent and the title specifically mandate that the land shall not
be alienated nor encumbered within five years from the date of the
issuance of the patent.
MORATO mortgaged the land to respondents CO and QUILATAN,
the later who constructed a house therein. Portion of it was also
leased to another person, where a warehouse was constructed.
Acting upon reports that respondent MORATO had encumbered
the land in violation of the condition of the patent, the DISTRICT
LAND OFFICER conducted an investigation. Thereafter, it was
established that the subject land is a portion of the Calauag Bay
and not suitable to vegetation.
The DIRECTOR OF LANDS filed an action in court to cancel the title
of the land and its reversion to the public domain as foreshore
land. However, both the lower court and the Court of Appeals
dismissed the said petition on the ground that there was no
violation of the 5-year period ban against alienating or
encumbering the land, because the land was merely leased and not
alienated. Hence, this appeal.
ISSUE
Whether or not the questioned land was part of a disposable public
land.
RULING
NO, it was not but rather belonged to the public domain as
foreshore land.
Foreshore land is the strip of land that lies between the high and
low water marks and that is alternatively wet and dry according to
the flow of the tide.
While at the time of the grant of free patent to respondent Morato,
the land was not reached by the water yet. However, due to
gradual sinking of the land caused by natural calamities, the sea
advanced and had permanently invaded a portion of the subject
land. The land in question already became foreshore land since
during high tide, at least half of the land was 6 feet deep under
water and 3 feet deep during low tide. When the sea advances and
private properties are permanently invaded by the waves, such as
in this case, they become part of the shore or breach. They are then
passed to the public domain, but the owner thus dispossessed does
not retain any right to the natural products resulting from their
new nature; it is a de facto case of eminent domain, and not
subject to indemnity.
Par. 1, Art. 420 of the Civil Code provides that shores are property
of public dominion. When the sea moved towards the estate and
the tide invaded it, the invaded property became foreshore land
and passed to the realm of the public domain. The subject land in
this case, being foreshore land, should therefore be returned to the
public domain.
CHAVEZ vs. PEA
GR No. 133250. July 9, 2002
Only an official classification and formal declaration can convert reclaimed
lands into alienable or disposable lands of the public domain.
FACTS
In 1973, the government, through the Commissioner of Public Highways,
signed a contract with the Construction and Development Corporation of the
Philippines (CDCP) to reclaim certain foreshore and offshore areas of Manila
Bay, which also included the construction of Phases I and II of the Manila-
Cavite Coastal Road and Reclamation Project (MCCRRP). CDCP obligated itself
to carry out all the works in consideration of 50% of the total reclaimed land.
In 1977, then Pres. Marcos issued PD 1084 creating the PHILIPPINE ESTATES
AUTHORITY (PEA), a wholly government owned and controlled corporation
with a special charter. The P.D. tasked PEA to reclaim land, including
foreshore and submerged areas, and to develop, improve, acquire, lease and
sell any and all kinds of lands. Another P.D. 1085 was issued, transferring to
PEA the lands reclaimed in the foreshore and offshore of the Manila Bay
under the MCCRRP.
In 1981, then Pres. Marcos issued a memorandum directing PEA to amend its
contract with CDCP, so that all future works in MCCRRP shall be funded and
owned by PEA. A Memorandum of Agreement was then executed between
PEA and CDCP, which stated that CDCP shall:
(1) undertake all reclamation, construction, and such other works in the
MCCRRP as may be agreed upon by the parties and that all the financing
required for such works shall be provided by PEA, and
(2) CDCP shall give up all its development rights and hereby agrees to cede
and transfer in favor of PEA, all of the rights, title, interest and participation
of CDCP in and to all the areas of land reclaimed by CDCP in the MCCRRP.
In 1988, then Pres. Aquino issued Special Patent No. 3517, granting and
transferring to PEA “the parcels of land so reclaimed under the MCCRRP. The
Register of Deeds of the Municipality of Parañaque issued 3 Transfer
Certificates of Title in the name of PEA, covering the 3 reclaimed islands
known as the “Freedom Islands”.
In 1995, PEA entered into a Joint Venture Agreement (JVA) with AMARI
COASTAL BAY AND DEVELOPMENT CORPORATION (AMARI), a private
corporation, to develop the Freedom Islands. The JVA also required the
reclamation of an additional 250 hectares of submerged areas surrounding
these islands to complete the configuration in the MCCRRP. PEA and AMARI
entered into the JVA through negotiation without public bidding. The Board
of Directors of PEA, in its resolution, confirmed the JVA, which was later
approved by then Pres. Ramos, through then Exe. Sec. Ruben Torres.
In 1996, then Senate Pres. Ernesto Maceda delivered a privilege speech in
the Senate and denounced the JVA as the “grandmother of all scams.” As a
result, 2 of the Senate Committees: (1) the Senate Committee on
Government Corporations and Public Enterprises and (2) Committee on
Accountability of Public Officers and Investigations, conducted a joint
investigation. In its Senate Committee Report No. 560, the Senate
Committees concluded that:
(1) the reclaimed lands PEA seeks to transfer to AMARI under the JVA were
lands of the public domain which the government has not classified as
alienable lands and therefore PEA cannot alienate these lands ,
(2) the certificates of title covering the Freedom Islands are thus void, and
(3) the JVA itself is illegal.
In 1997, then Pres. Ramos issued A.O. 365 creating a Legal Task Force to
conduct a study on the legality of the JVA in view of Senate Committee
Report No. 560. The Legal Task Force upheld the legality of the JVA, contrary
to the conclusions reached by the Senate Committees. It declared that
reclaimed lands were classified as alienable and disposable lands of the
public domain.
In 1998, the Philippine Daily Inquirer and Today published reports that there
were on-going renegotiations between PEA and AMARI under an order
issued by then President Fidel V. Ramos.
On April of the same year, a certain Antonio M. Zulueta filed before the Court
a Petition seeking to nullify the JVA. The Court dismissed the petition for
unwarranted disregard of judicial hierarchy.
In the same month, petitioner FRANK I. CHAVEZ as a taxpayer, filed the
instant Petition for Mandamus with Prayer for the Issuance of a Writ of
Preliminary Injunction and Temporary Restraining Order. CHAVEZ assailed
the following:
(1) that the sale to AMARI of lands of the public domain as a blatant violation
of Sec. 3, Article XII of Constitution prohibiting the sale of alienable lands of
the public domain to private corporations and
(2) that he sought to enjoin the loss of billions of pesos in
properties of the State that are of public dominion. CHAVEZ prayed
that PEA publicly disclose the terms of any renegotiation of the JVA,
invoking the Constitutional right of the people to information on
matters of public concern.
In a Resolution dated 1999, the Court gave due course to the
petition and required the parties to file their respective
memoranda.
However, PEA and AMARI signed the Amended Joint Venture
Agreement (Amended JVA). The subject matter of the Amended
JVA, consisted of 3 properties, which covered a reclamation area of
750 hectares. Only 157.84 hectares of the 750-hectare reclamation
project have been reclaimed, and the rest of the 592.15 hectares
are still submerged areas forming part of Manila Bay. The Amended
JVA, was the result of a negotiated contract, not of a public bidding.
The Amended JVA was not an ordinary commercial contract but
one which sought to transfer title and ownership to 367.5 hectares
of reclaimed lands and submerged areas of Manila Bay to a single
private corporation. Under the Amended JVA, PEA was obligated
to transfer to AMARI, the latter’s 70% proportionate share in the
reclaimed areas as the reclamation progressed. The Amended JVA
even allowed AMARI to mortgage at any time the entire reclaimed
area to raise financing for the reclamation project.
The Office of the President under the administration of then Pres.
Estrada approved the Amended JVA.
Due to the approval of the Amended JVA by the Office of the
President, CHAVEZ now prayed that on constitutional and statutory
grounds the renegotiated contract be declared null and void.
ISSUE
Whether or not AMARI can claim under the Amended JVA, hectares
of reclaimed foreshore and submerged areas in Manila Bay held by
PEA in view of the constitutional ban prohibiting the alienation of
lands of the public domain to private corporations.
RULING
NO, the reclaimed foreshore and submerged areas in Manila Bay
could not be alienated in favor of AMARI. The petition of CHAVEZ
was granted.
The Regalian doctrine is the foundation of the time-honored
principle of land ownership that “all lands that were not acquired
from the Government, either by purchase or by grant, belong to
the public domain.” The Civil Codes of 1889 (Art. 339) and 1950
(Art. 420) incorporated the Regalian doctrine.
History of Laws
(1) Spanish Law of Waters of 1866. Land reclaimed from the sea
belonged to the party undertaking the reclamation, provided the
government issued the necessary permit and did not reserve
ownership of the reclaimed land to the State.
(2) Civil Code of 1889. Property of public dominion, when no longer
devoted to public use or to the defense of the territory, shall
become a part of the private property of the State provided that
the legislature, or the executive department pursuant to law, must
declare the property no longer needed for public use or territorial
defense before the government could lease or alienate the
property to private parties.
(3) Act No. 1654 of the Philippine Commission of 1907. It mandated
that the government should retain title to all lands reclaimed by
the government. The Act also vested in the government control and
disposition of foreshore lands. Private parties could lease lands
reclaimed by the government only if these lands were no longer
needed for public purpose. Act No. 1654 mandated public bidding
in the lease of government reclaimed lands. Act No. 1654 made
government reclaimed lands sui generis in that unlike other public
lands which the government could sell to private parties, these
reclaimed lands were available only for lease to private parties.
(4) Public Land Act of 1919 (Act No. 2874). It authorized the
Governor-General to classify lands of the public domain into
alienable or disposable lands and to declare what lands are open to
disposition or concession. Lands disposable shall be classified as
government reclaimed, foreshore and marshy lands, as well as
other lands. Disposable lands of the public domain classified as
government reclaimed, foreshore and marshy lands shall be disposed of to
private parties by lease only and not otherwise. It reiterated the State policy
to lease and not to sell government reclaimed, foreshore and marshy lands of
the public domain, a policy first enunciated in 1907 in Act No. 1654.
Government reclaimed, foreshore and marshy lands remained sui generis, as
the only alienable or disposable lands of the public domain that the
government could not sell to private parties.
Under this Act, the government could not sell government reclaimed,
foreshore and marshy lands to private parties, unless the legislature passed a
law allowing their sale. The rationale behind this State policy is obvious.
Government reclaimed, foreshore and marshy public lands for non-
agricultural purposes retain their inherent potential as areas for public
service. This is the reason the government prohibited the sale, and only
allowed the lease, of these lands to private parties. The State always
reserved these lands for some future public service.
(5) 1935 Constitution. It barred the alienation of all natural resources except
public agricultural lands, which were the only natural resources the State
could alienate. Thus, foreshore lands, considered part of the State’s natural
resources, became inalienable by constitutional fiat, available only for lease
for 25 years, renewable for another 25 years. The government could alienate
foreshore lands only after these lands were reclaimed and classified as
alienable agricultural lands of the public domain. Government reclaimed and
marshy lands of the public domain, being neither timber nor mineral lands,
fell under the classification of public agricultural lands. However, government
reclaimed and marshy lands, although subject to classification as disposable
public agricultural lands, could only be leased and not sold to private parties
because of Act No. 2874.
(6) C.A. 141 of 1936. This act remains to this day the existing general law
governing the classification and disposition of lands of the public domain
other than timber and mineral lands. It empowers the President upon the
recommendation of the Secretary of Agriculture and Commerce to (1)classify
lands of the public domain into “alienable or disposable” lands of the public
domain, which prior to such classification are inalienable and outside the
commerce of man and (2) declare what lands are open to disposition or
concession.
The State policy prohibiting the sale to private parties of government
reclaimed, foreshore and marshy alienable lands of the public domain, first
implemented in 1907 was thus reaffirmed in CA No. 141 after the 1935
Constitution took effect. Since then and until now, the only way the
government can sell to private parties government reclaimed and marshy
disposable lands of the public domain is for: (1) the legislature to pass a law
authorizing such sale and (2) in case of sale or lease, it is required that it be in
a public bidding.
(7) The Civil Code of 1950. It readopted substantially the definition of
property of public dominion found in the Civil Code of 1889. Again, the
government must formally declare that the property of public dominion is no
longer needed for public use or public service, before the same could be
classified as patrimonial property of the State. In the case of government
reclaimed and marshy lands of the public domain, the declaration of their
being disposable, as well as the manner of their disposition, is governed by
the applicable provisions of CA No. 141.
Like the Civil Code of 1889, the Civil Code of 1950 included as property of
public dominion those properties of the State which, without being for public
use, are intended for public service or the “development of the national
wealth.” Thus, government reclaimed and marshy lands of the State, even if
not employed for public use or public service, if developed to enhance the
national wealth, are classified as property of public dominion.
(8) 1973 Constitution. The 1973 Constitution prohibited the alienation of all
natural resources with the exception of “agricultural, industrial or
commercial, residential, and resettlement lands of the public domain.” Both
the 1935 and 1973 Constitutions, therefore, prohibited the alienation of all
natural resources except agricultural lands of the public domain. Thus, under
the 1973 Constitution, private corporations could hold alienable lands of the
public domain only through lease. Only individuals could now acquire
alienable lands of the public domain.
(9) PD No. 1084 Creating the Public Estates Authority. PD No. 1084 authorizes
PEA to reclaim both foreshore and submerged areas of the public domain.
Foreshore areas are those covered and uncovered by the ebb and flow of the
tide. Submerged areas are those permanently under water regardless of the
ebb and flow of the tide. Foreshore and submerged areas indisputably belong
to the public domain and are inalienable unless reclaimed, classified as
alienable lands open to disposition, and further declared no longer needed
for public service.
The ban in the 1973 Constitution on private corporations from
acquiring alienable lands of the public domain did not apply to PEA
since it was then, and until today, a fully owned government
corporation.
Thus, PEA can hold title to private lands, as well as title to lands of
the public domain. In order for PEA to sell its reclaimed foreshore
and submerged alienable lands of the public domain, there must be
legislative authority empowering PEA to sell these lands. This
legislative authority is necessary in view of CA No.141. Without
such legislative authority, PEA could not sell but only lease its
reclaimed foreshore and submerged alienable lands of the public
domain. Nevertheless, any legislative authority granted to PEA to
sell its reclaimed alienable lands of the public domain would be
subject to the constitutional ban on private corporations from
acquiring alienable lands of the public domain. Hence, such
legislative authority could only benefit private individuals.
(10) 1987 Constitution. The 1987 Constitution declares that all
natural resources are “owned by the State,” and except for
alienable agricultural lands of the public domain, natural resources
cannot be alienated. Private corporations or associations may not
hold such alienable lands of the public domain except by lease, for
a period not exceeding 25 years, renewable for not more than 25,
and not to exceed 1,000 hectares in area. Citizens of the Philippines
may lease not more than 500 hectares, or acquire not more than
12 hectares thereof by purchase, homestead, or grant. Taking into
account the requirements of conservation, ecology, and
development, and subject to the requirements of agrarian reform,
the Congress shall determine, by law, the size of lands of the public
domain which may be acquired, developed, held, or leased and the
conditions therefore.
The 1987 Constitution continues the State policy in the 1973
Constitution banning private corporations from acquiring any kind
of alienable land of the public domain. Like the 1973 Constitution,
the 1987 Constitution allows private corporations to hold alienable
lands of the public domain only through lease. As in the 1935 and
1973 Constitutions, the general law governing the lease to private
corporations of reclaimed, foreshore and marshy alienable lands of
the public domain is still CA No. 141.
In actual practice, the constitutional ban strengthens the
constitutional limitation on individuals from acquiring more than
the allowed area of alienable lands of the public domain. Without
the constitutional ban, individuals who already acquired the
maximum area of alienable lands of the public domain could easily
set up corporations to acquire more alienable public lands. An
individual could own as many corporations as his means would
allow him. An individual could even hide his ownership of a
corporation by putting his nominees as stockholders of the
corporation. The corporation is a convenient vehicle to circumvent
the constitutional limitation on acquisition by individuals of
alienable lands of the public domain.
PEA’s contention: Lands reclaimed from foreshore or submerged
areas of Manila Bay are alienable or disposable lands of the public
domain.(Note: this contention is erroneous)
Under the Public Land Act (CA 141), reclaimed lands are classified
as alienable and disposable lands of the public domain. Section 8 of
CA No. 141 provides that only those lands shall be declared open to
disposition or concession which have been officially delimited and
classified. The President has the authority to classify inalienable
lands of the public domain into alienable or disposable lands of the
public domain.
Under the 1987 Constitution, the foreshore and submerged areas
of Manila Bay are part of the lands of the public domain, waters
and other natural resources and consequently owned by the State.
As such, foreshore and submerged areas shall not be alienated,
unless they are classified as “agricultural lands” of the public
domain. The mere reclamation of these areas by PEA does not
convert these inalienable natural resources of the State into
alienable or disposable lands of the public domain. There must be
a law or presidential proclamation officially classifying these
reclaimed lands as alienable or disposable and open to disposition
or concession.
Under Article 422 of the Civil Code, a property of public dominion retains
such character until formally declared otherwise.
PD No. 1085, coupled with President Aquino’s actual issuance of a special
patent covering the Freedom Islands, is equivalent to an official proclamation
classifying the Freedom Islands as alienable or disposable lands of the public
domain. However, at the time then President Aquino issued Special Patent
No. 3517, PEA had already reclaimed the Freedom Islands although
subsequently there were partial erosions on some areas. The government
had also completed the necessary surveys on these islands. Thus, the
Freedom Islands were no longer part of Manila Bay but part of the land mass.
Being neither timber, mineral, nor national park lands, the reclaimed
Freedom Islands necessarily fall under the classification of agricultural lands
of the public domain. Under the 1987 Constitution, agricultural lands of the
public domain are the only natural resources that the State may alienate to
qualified private parties.
AMARI’s contention: The Freedom Islands are private lands because CDCP,
then a private corporation, reclaimed the islands under a contract in 1973
with the Commissioner of Public Highways .It cited Article 5 of the Spanish
Law of Waters of 1866, argues that “if the ownership of reclaimed lands may
be given to the party constructing the works, then it cannot be said that
reclaimed lands are lands of the public domain which the State may not
alienate.” (Note: this contention is erroneous)
Article 5 of the Spanish Law of Waters must be read together with laws
subsequently enacted on the disposition of public lands. In particular, CA No.
141 requires that lands of the public domain must first be classified as
alienable or disposable before the government can alienate them. These
lands must not be reserved for public or quasi-public purposes. Moreover,
the contract between CDCP and the government was executed after the
effectivity of the 1973 Constitution which barred private corporations from
acquiring any kind of alienable land of the public domain. This contract could
not have converted the Freedom Islands into private lands of a private
corporation.
The Amended JVA covers not only the Freedom Islands, but also an additional
592.15 hectares which are still submerged and forming part of Manila Bay.
There is no legislative or Presidential act classifying these submerged areas as
alienable or disposable lands of the public domain open to disposition. These
submerged areas are not covered by any patent or certificate of title. There
can be no dispute that these submerged areas form part of the public
domain, and in their present state are inalienable and outside the commerce
of man. Until reclaimed from the sea, these submerged areas are, under the
Constitution, waters owned by the State, forming part of the public domain
and consequently inalienable. Only when actually reclaimed from the sea
can these submerged areas be classified as public agricultural lands, which
under the Constitution are the only natural resources that the State may
alienate. Once reclaimed and transformed into public agricultural lands, the
government may then officially classify these lands as alienable or disposable
lands open to disposition. Thereafter, the government may declare these
lands no longer needed for public service. Only then can these reclaimed
lands be considered alienable or disposable lands of the public domain and
within the commerce of man.
EO No. 525, by declaring that all lands reclaimed by PEA “shall belong to or
be owned by the PEA,” could not automatically operate to classify inalienable
lands into alienable or disposable lands of the public domain. Otherwise,
reclaimed foreshore and submerged lands of the public domain would
automatically become alienable once reclaimed by PEA, whether or not
classified as alienable or disposable.
As manager, conservator and overseer of the natural resources of the State,
DENR exercises “supervision and control over alienable and disposable public
lands.” DENR also exercises “exclusive jurisdiction on the management and
disposition of all lands of the public domain.” Thus, DENR decides whether
areas under water, like foreshore or submerged areas of Manila Bay, should
be reclaimed or not. This means that PEA needs authorization from DENR
before PEA can undertake reclamation projects in Manila Bay, or in any part
of the country. DENR also exercises exclusive jurisdiction over the disposition
of all lands of the public domain. Hence, DENR decides whether reclaimed
lands of PEA should be classified as alienable under CA No. 141.
In short, DENR is vested with the power to authorize the reclamation of areas
under water, while PEA is vested with the power to undertake the physical
reclamation of areas under water, whether directly or through private
contractors. DENR is also empowered to classify lands of the public domain
into alienable or disposable lands subject to the approval of the
President. On the other hand, PEA is tasked to develop, sell or
lease the reclaimed alienable lands of the public domain.
In the case at bar, 2 official acts are absent – (1) a classification that
these lands are alienable or disposable and open to disposition and
(2) a declaration that these lands are not needed for public service,
lands reclaimed by PEA remain inalienable lands of the public
domain. Only such an official classification and formal declaration
can convert reclaimed lands into alienable or disposable lands of
the public domain, open to disposition under the Constitution, Title
I and Title III of CA No. 141 and other applicable laws.
Procedure to be followed in classifying reclaimed lands as
alienable:
1. DENR decides that the reclaimed lands should be classified as
alienable
2. DENR Secretary recommends to the President the issuance of a
proclamation classifying the lands as alienable or disposable lands
of the public domain open to disposition.
3. The President issues a proclamation classifying such land as
alienable or disposable and open to disposition and that they are
no longer needed for public service.
4. Congress must enact a law approving the Proclamation of the
President. Said re-classification needs both executive and legislative
concurrence.
PEA’s contention: PD No. 1085 and EO No. 525 constitute the
legislative authority allowing PEA to sell its reclaimed lands. (Note:
this contention is erroneous)
There is no express authority under either PD No. 1085 or EO No.
525 for PEA to sell its reclaimed lands. PD No. 1085 merely
transferred “ownership and administration” of lands reclaimed
from Manila Bay to PEA, while EO No. 525 declared that lands
reclaimed by PEA “shall belong to or be owned by PEA.” EO No. 525
expressly states that PEA should dispose of its reclaimed lands “in
accordance with the provisions of Presidential Decree No. 1084,”
the charter of PEA.
PEA’s charter, however, expressly tasks PEA to develop, improve,
acquire, administer, deal in, subdivide, dispose, lease and sell any
and all kinds of lands owned, managed, controlled and/or operated
by the government. There is, therefore, legislative authority
granted to PEA to sell its lands, whether patrimonial or alienable
lands of the public domain. PEA may sell to private parties its
patrimonial properties in accordance with the PEA charter free
from constitutional limitations. The constitutional ban on private
corporations from acquiring alienable lands of the public domain
does not apply to the sale of PEA’s patrimonial lands. PEA may also
sell its alienable or disposable lands of the public domain to private
individuals since, with the legislative authority, there is no longer
any statutory prohibition against such sales and the constitutional
ban does not apply to individuals.
Private corporations remain barred from acquiring any kind of
alienable land of the public domain, including government
reclaimed lands.
Procedure in selling inalienable land as alienable: Although PEA has
authority to determine the mode of payment of the buyer of the
land, whether it be in cash or in installment, the following is still
required in the sale (PD 1445 - Government Auditing Code):
1. When government property is no longer needed, it should be
inspected by the head of the agency or his duly authorized
representative in the presence of the auditor concerned.
2. If found to be valuable, it must be sold through a public bidding
and awarded to the highest bidder. At the public auction sale, only
Philippine citizens are qualified to bid for PEA’s reclaimed foreshore
and submerged alienable lands of the public domain. Private
corporations are barred from bidding at the auction sale of any
kind of alienable land of the public domain.
3. Prior to the bidding, there must be an advertising by printed
notice for not less than three consecutive days in the Official
Gazette, or in any newspaper of general circulation.
4. If the public auction fails, the property may be sold at a private sale at such
price as may be fixed by the same committee or body concerned and
approved by the Commission on Audit.
It is only when the public auction fails that a negotiated sale is allowed, in
which case the Commission on Audit must approve the selling price.
What happened in the PEA-AMARI bidding:
PEA originally scheduled a public bidding for the Freedom Islands in. PEA
imposed a condition that the winning bidder should reclaim another 250
hectares of submerged areas to regularize the shape of the Freedom Islands,
under a 60-40 sharing of the additional reclaimed areas in favor of the
winning bidder. No one, however, submitted a bid. In 1994, the Government
Corporate Counsel advised PEA it could sell the Freedom Islands through
negotiation, without need of another public bidding, because of the failure of
the public bidding on in 1991.
However, the original JVA dated 1995 covered not only the Freedom Islands
and the additional 250 hectares still to be reclaimed, it also granted an option
to AMARI to reclaim another 350 hectares. The original JVA, a negotiated
contract, enlarged the reclamation area to 750 hectares. The failure of public
bidding in 1991, involving only 407.84 hectares. is not a valid justification for
a negotiated sale of 750 hectares, almost double the area publicly auctioned.
Besides, the failure of public bidding happened in 1991, more than 3 years
before the signing of the original JVA in 1995. The economic situation in the
country had greatly improved during the intervening period.
PEA and AMARI’s contention: The issuance of Special Patent No. 3517 and
the corresponding certificates of titles, the 157.84 hectares comprising the
Freedom Islands have become private lands of PEA. (Note: this contention is
erroneous)
In the instant case, the only patent and certificates of title issued are those in
the name of PEA, a wholly government owned corporation performing public
as well as proprietary functions. No patent or certificate of title has been
issued to any private party. No one is asking the Director of Lands to cancel
PEA’s patent or certificates of title. In fact, the thrust of the instant petition
is that PEA’s certificates of title should remain with PEA, and the land
covered by these certificates, being alienable lands of the public domain,
should not be sold to a private corporation.
Registration of land under Act No. 496 or PD No. 1529 does not vest in the
registrant private or public ownership of the land. Registration is not a mode
of acquiring ownership but is merely evidence of ownership previously
conferred by any of the recognized modes of acquiring ownership.
Registration does not give the registrant a better right than what the
registrant had prior to the registration. The registration of lands of the public
domain under the Torrens system, by itself, cannot convert public lands into
private lands.
To allow vast areas of reclaimed lands of the public domain to be transferred
to PEA as private lands will sanction a gross violation of the constitutional
ban on private corporations from acquiring any kind of alienable land of the
public domain. PEA will simply turn around, as PEA has now done under the
Amended JVA, and transfer several hundreds of hectares of these reclaimed
and still to be reclaimed lands to a single private corporation in only one
transaction. This scheme will effectively nullify the constitutional ban, which
was intended to diffuse equitably the ownership of alienable lands of the
public domain among Filipinos, now numbering over 80 million strong.
This scheme, if allowed, can even be applied to alienable agricultural lands of
the public domain since PEA can “acquire any and all kinds of lands.” This
will open the floodgates to corporations and even individuals acquiring
hundreds of hectares of alienable lands of the public domain under the guise
that in the hands of PEA these lands are private lands. This will result in
corporations amassing huge landholdings never before seen in this country -
creating the very evil that the constitutional ban was designed to prevent.
This will completely reverse the clear direction of constitutional development
in this country. The 1935 Constitution allowed private corporations to
acquire not more than 1,024 hectares of public lands. The 1973 Constitution
prohibited private corporations from acquiring any kind of public land, and
the 1987 Constitution has unequivocally reiterated this prohibition.
AMARI’s contention: The Amended JVA is not a sale to AMARI of the
Freedom Islands or of the lands to be reclaimed from submerged areas of
Manila Bay. In the words of AMARI, the Amended JVA “is not a sale but a
joint venture with a stipulation for reimbursement of the original cost
incurred by PEA for the earlier reclamation and construction works
performed by the CDCP under its 1973 contract with the Republic.
(Note: this contention is erroneous)
Whether the Amended JVA is a sale or a joint venture, the fact
remains that the Amended JVA requires PEA to “cause the issuance
and delivery of the certificates of title conveying AMARI’s Land
Share in the name of AMARI.”
This stipulation still contravenes the 1987 Constitution which
provides that private corporations “shall not hold such alienable
lands of the public domain except by lease.” The transfer of title
and ownership to AMARI clearly means that AMARI will “hold” the
reclaimed lands other than by lease.
The Regalian doctrine is deeply implanted in our legal system.
Foreshore and submerged areas form part of the public domain
and are inalienable. Lands reclaimed from foreshore and
submerged areas also form part of the public domain and are also
inalienable, unless converted pursuant to law into alienable or
disposable lands of the public domain. Historically, lands reclaimed
by the government are sui generis, not available for sale to private
parties unlike other alienable public lands. Reclaimed lands retain
their inherent potential as areas for public use or public service.
Alienable lands of the public domain, increasingly becoming scarce
natural resources, are to be distributed equitably among our ever-
growing population. To insure such equitable distribution, the
1973 and 1987 Constitutions have barred private corporations from
acquiring any kind of alienable land of the public domain. Those
who attempt to dispose of inalienable natural resources of the
State, or seek to circumvent the constitutional ban on alienation of
lands of the public domain to private corporations, do so at their
own risk.
VILLARICO vs. SARMIENTO
GR No. 136438. November 11, 2004
Property of public dominion could not be burdened by a voluntary
easement of right of way
FACTS
VILLARICO was the owner of a lot in Parañaque City, Metro Manila.
His lot was separated from the Ninoy Aquino Avenue (highway) by
a strip of land belonging to the government. As this highway was
elevated by 4 meters and therefore higher than the adjoining areas,
the DPWH constructed stairways at several portions of this strip of
public land to enable the people to have access to the highway.
SARMIENTO and his daughter and the latter’s husband
(RESPONDENTS), had a building constructed on a portion of said
government land. A part thereof was occupied by 2 establishments
(lechonan and carinderia). By means of a Deed of Exchange of Real
Property, VILLARICO acquired a 74.30 square meter portion of the
same area owned by the government.
VILLARICO filed in court a complaint for accion publiciana against
RESPONDENTS arguing that the latter’s structures on the
government land closed his “right of way” to the Ninoy Aquino
Avenue and that it encroached on a portion of his lot.
RESPONDENTS denied VILLARICO’s allegations contending that
VILLARICO had no right over the subject property as it belonged to
the government. The trial court found that VILALRICO was not
deprived of his “right of way” and had never been in possession of
any portion of the public land in question. On the contrary, the
DEFENDANTS were the ones who had been in actual possession of
the area. The Court of Appeals affirmed said decision upon appeal.
Hence, this petition.
ISSUE
Whether or not VILLARICO may acquire a voluntary easement of
right of way over the land of the government which is between his
property and the Ninoy Aquino Avenue.
RULING
NO. It is not disputed that the lot on which petitioner’s alleged
“right of way” existed belonged to the state or property of public
dominion. Property of public dominion under Art. 420 are those
intended for public use. Public use is “use that is not confined to privileged
individuals, but is open to the indefinite public.” Records showed that the lot
on which the stairways were built was for the use of the people as
passageway to the highway. Consequently, it was a property of public
dominion. Property of public dominion is outside the commerce of man and
hence it: (1) cannot be alienated or leased or otherwise be the subject
matter of contracts; (2) cannot be acquired by prescription against the State;
(3) is not subject to attachment and execution; and (4) cannot be burdened
by any voluntary easement.
Considering that the lot on which the stairways were constructed was a
property of public dominion, it could not be burdened by a voluntary
easement of right of way in favor of VILLARICO. In fact, its use by the public
was by mere tolerance of the government through the DPWH. VILLARICO
could not appropriate it for himself. Verily, he could claim any right of
possession over it since only things and rights which are susceptible of being
appropriated may be the object of possession.
ARTICLE 421: All other property of the State, which is not of the
character stated in the preceding Article, is patrimonial property.
PATRIMONIAL PROPERTY – It is the wealth owned by the State in its private,
as distinguished from its public capacity.
Patrimonial property may be acquired by private individuals or corporations
thru prescription. However, if a municipality has been taking the products of
a certain parcel of land, and planting thereon certain other crops, this is NOT
proof of ownership, but only of the usufruct thereof.
CEBU OXYGEN vs. BERCILLES
GR No. L-40474. August 29, 1975
An abandoned road, declared by the City Council through a resolution forms
part of the patrimonial property of the State.
FACTS
The terminal portion of M. Borces St. in Cebu City was declared an
abandoned road by the City Council of Cebu through a resolution. The council
later, authorized the Acting Mayor to sell the land. In the public bidding, the
land was awarded to CEBU OXYGEN & ACETYLENE CO. being the highest
bidder. A Deed of Absolute Sale to CEBU OXYGEN was executed by the
Acting Mayor. It then filed an application in court to have its title to the land
registered.
However, the Assistant Provincial Fiscal of Cebu filed a motion to dismiss the
application on the ground that the property sought to be registered being a
public road intended for public use was considered part of the public domain
and therefore outside the commerce of man. Consequently, it could not be
subject to registration by any private individual.
JUDGE PASCUAL BERCILLES of the trial court then issued an order dismissing
the petitioner's application for registration of title. Hence, the instant
petition for review.
ISSUE
Whether or not the declaration of the road, as abandoned by the City Council
of Cebu, made it the patrimonial property of the City of Cebu, making said
property as a valid object of a common contract.
RULING
YES, it became patrimonial property and hence a valid subject of a contract.
The City of Cebu was empowered to close a city road or street. The City
Council is the authority competent to determine whether or not a certain
property is still necessary for public use. Such power to vacate a street or
alley is discretionary and the discretion will not ordinarily be controlled or
interfered with by the courts, absent a plain case of abuse or fraud or
collusion.
Since that portion of the city street subject of petitioner's application for
registration of title was withdrawn from public use by an ordinance of the
City Council of Cebu, it follows that such withdrawn portion becomes
patrimonial property, which can be the object of an ordinary contract.
Article 422 of the Civil Code expressly provides that "Property of public
dominion, when no longer intended for public use or for public service, shall
form part of the patrimonial property of the State." Accordingly, the
withdrawal of the property in question from public use and its subsequent
sale to the petitioner was valid. Hence, the petitioner has a
registerable title over the lot in question.
LAUREL vs. GARCIA
GR No. 29013. July 25, 1990. 187 SCRA 797
Abandonment of a property of public domain cannot be inferred
from the non-use alone. It must be a certain and positive act based
on correct legal premises.
FACTS
Under the Reparations Agreement entered with in 1956, the
Philippine government has acquired 4 properties in Japan as part of
the indemnification to the Filipino people for their losses in life and
property and their suffering during World War II. One of these
properties is the Raponggi property located in Tokyo, Japan, which
was specifically designated under the Reparations Agreement to
house the Philippine Embassy. Said property consisted of the land
and building, which indeed became the site of the Philippine
Embassy until the latter was transferred to Nampeidai in 1976
when the Rappongi building needed major repairs. Due to the
failure of our government to provide necessary funds, the Rappongi
property has remained undeveloped since that time. Amidst
opposition by various sectors, the Executive branch of the
government has been pushing, with great vigor, its decision to sell
the reparations properties starting with the Roppongi lot. A bidding
was then set.
Petitioner SALVADOR LAUREL filed this action to enjoin
respondents from selling the Raponggi property. LAUREL asserted
that the Roppongi property is classified as one of public dominion,
and not of private ownership under Article 420 of the Civil Code
because it is a "property intended for public service" in paragraph 2
of the above provision. Hence, it could not be appropriated, is
outside the commerce of man, or to put it in more simple terms, it
could be alienated nor be the subject matter of contracts.
RESPONDENTS Ramon Garcia (Head of the Asset Privatization
Trust), Raul Manglapus (Secretary of Foreign Affairs) and Catalino
Macaraig (Executive Secretary) on the other hand, contended that
the Rappongi property has ceased to become property of public
dominion. It has become patrimonial property because it has not
been used for public service or for diplomatic purposes for over 13
years already and because the intention by the Executive
Department and the Congress to convert it to private use has been
manifested by overt acts.
ISSUES
(1) Whether or not the Raponggi property is a property of public
dominion.
(2) Whether or not the abandonment of the Rappongi property for
over 13 years has ceased it from being a property of public
dominion and was transformed into a patrimonial property.
RULING
(1) YES. The nature of the Rappongi lot as property for public
service is expressly spelled out. It was dictated by the terms of the
Reparations Agreement and the corresponding contract of
procurement, which specifically designated it as the site of the
Philippine Embassy. Such agreement bound both the Philippine
government and the Japanese government. As property of public
dominion, the Rappongi lot is outside the commerce of man. It
could be alienated. Its ownership is a special collective ownership
for general use and enjoyment, an application to the satisfaction of
collective needs, and resides in the social group. The purpose is not
to serve the State as a juridical person, but the citizens. It is
intended for the common and public welfare and cannot be the
object of appropriation. The applicable provisions of the Civil Code
are Arts. 419 and 420. The Roppongi property was correctly
classified under paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for some public
service.
(2) No. A mere transfer of the Philippine Embassy to Nampeidai in
1976 is not relinquishment of the Roppongi property's original
purpose. The fact that the Roppongi site has not been used for a long time
for actual Embassy service does not automatically convert it to patrimonial
property. Any such conversion happens only if the property is withdrawn
from public use. A property continues to be part of the public domain, not
available for private appropriation or ownership until there is a formal
declaration on the part of the government to withdraw it from being such. An
abandonment of the intention to use the Roppongi property for public
service and to make it patrimonial property under Article 422 of the Civil
Code must be definite. Abandonment cannot be inferred from the non-use
alone specially if the non-use was attributable not to the government's own
deliberate and indubitable will but to a lack of financial support to repair and
improve the property. Abandonment must be a certain and positive act
based on correct legal premises.
INTERNATIONAL HARDWOOD vs. UP
GR No. L-52518. August 13, 1991. 200 SCRA 554
Ownership by the State of a property of the public domain may be
transferred in order to become patrimonial property under the authority of a
statute.
FACTS
INTERNATIONAL HARDWOOD AND VENEER COMPANY OF THE PHILIPPINES
was engaged in the manufacture, processing and exportation of plywood. In
1953, it was granted by the government an exclusive license to cut, collect
and remove timber from that portion of timber land located in certain
municipalities in the provinces of Quezon and Laguna. Said license was
renewed for another 25 years that was to expire in 1985 under License
Agreement 27-A.
In 1961, the President Carlos P. Garcia issued Executive Proclamation No. 791
which withdrew from sale or settlement a parcel of land in the municipalities
of Quezon and Laguna in reservation for an experiment station for the
proposed Dairy Research and production studies of the UNIVERSITY OF THE
PHILIPPINES (UP). In 1964, Congress enacted RA 3990, which established a
central experiment station for UP. It ceded and transferred in full ownership
to UP, the “reserved area” under Executive Proclamation No. 791 subject to
any existing concessions, if any. The said experiment station was within the
area covered by INTERNATIONAL HARDWOOD’s timber license.
Later, UP demanded from INTERNATIONAL HARDWOOD in writing: (1) the
payment of forest charges, reforestation fees and royalties under the License
Agreement 27-A and (2) that the scaling, measuring, sealing and selling of
any timber felled or cut by plaintiff within the boundaries of the Central
Experiment Station as defined in RA 3990 be performed by UP personnel.
INTERNATIONAL HARWOOD then sought an action to enjoin UP from its
demands since it believed that RA 3990 did not empower UP, in lieu of the
BIR and Bureau of Forestry, to scale, measure and seal the timber cut by the
petitioner within the tract of land referred to in said act and collect the
corresponding forest charges prescribed by the National Internal Revenue
Code.
ISSUE
Whether or not the property has been removed from the public domain in
favor of UP that it was vested with the right to regulate INTERNATIONAL
HARDWOOD’s timber cutting and to demand from it the payment of forest
charges and other dues.
RULING
YES. Pursuant, however, to RA 3990, which established a central experiment
station for the use of the UP in connection with its research and extension
functions, the reserved area was ceded and transferred in full ownership to
the University of the Philippines subject to any existing concessions, if any.
When it ceded and transferred the property to UP through RA 3990, the
State completely removed it from the public domain. All its rights as grantor
of the license were effectively assigned, ceded and conveyed to UP as a
consequence of the above transfer of full ownership. With respect to the
areas covered by the timber license of petitioner, it removed and segregated
it from a public forest. The State divested itself of its rights and title thereto
and relinquished and conveyed the same to the UP and made the latter the
absolute owner thereof, subject only to the existing concession.
The proviso regarding existing concessions referred to the timber license of
petitioner. All that it means, however, is that the right of petitioner as a
timber licensee must not be affected, impaired or diminished; it must be
respected.
It follows then that respondent UP was entitled to supervise,
through its duly appointed personnel, the logging, felling and
removal of timber within the area covered by R.A. No. 3990.
Note: In this case, the area ceded to UP by the state was
considered by the court as to have been removed from the land of
the public domain and became patrimonial property. However,
under Art. 422, property of the public domain include those
intended for public service. Being that UP is a state university and
that it is devoted for public service by way of providing education,
the subject property here should have still remained under the
State’s property of public domain and should not have been
classified as patrimonial property. (Atty. Suarez’s comment)
ARTICLE 422: Property of public dominion, when no loner intended
for public use or for public service, shall form part of the patrimonial
property of the State.
CEBU OXYGEN V BERCILLES.
FACTS:
The City Council of Cebu, in 1968, considered as an abandoned
road, the terminal portion of one its streets. Later it authorized the
sale thru public bidding of the property. The Cebu Oxygen and
Acetylene Co. was able to purchase the same. It then petitioned
the RTV for the registration of the land. The petition was opposed
by the provincial fiscal who argued that the lot is still part of the
public domain, and cannot therefore be registered.
ISSUE: May the lot be registered in the name of the buyer?
HELD: YES. The land can be registered in the name of the buyer
because the street has already been withdrawn from public use,
and accordingly has become patrimonial property. The lot’s sale
was therefore valid.
WHEN CHANGE TAKES EFFECT:
1. Property of public dominion ceases to be such and
becomes private property of the State ONLY UPON
DECLARATION BY THE GOVERNMENT, thru the legislative or
executive departments, to the effect that it is no longer
needed for public use or public service.
2. if the property has been intended for such use or service
and the government has not devoted it to other uses, or
adopted any measure w/c amounted to a withdrawal thereof
from public use or service, the same remains property for
public use or service notwithstanding the fact that it is not
actually devoted for public use or service.
ARTICLE 423: The property of provinces, cities, and municipalities is
divided into property for public use and patrimonial property.
 Properties of Political Subdivisions
1. Property for public use
2. Patrimonial property
 Alienation of the Properties
1. Properties of the political subdivision for public use can
not be alienated as such, and may not be acquired by
prescription.
2. Properties of a political subdivision which are
patrimonial in character may be alienated, and may be
acquired by others thru prescription.
ARTICLE 424: Property for public use, in the provinces, cities, and
municipalities, consist of the provincial roads, city streets, municipal
waters, promenades, and public works for public service paid for by
said provinces, cities, or municipalities.
All other property possessed by any of then is patrimonial and shall
be governed by this Code, without prejudice to the provisions of
special laws.
ARTICLE 425: Property of private ownership, besides the
patrimonial property of the State, provinces, cities, and
municipalities, consist of all property belonging to private persons,
either individually or collectively.
Laurel vs. Garcia
Facts: The Roponggi property was acquired from the Japanese government
through reparations contract. No. 300. It consisted of the land and the
building for the Philippine Embassy. As intended, it became the site of the
Embassy until the latter was transferred to Nampeidai as the Roponggi
property needed major repairs. However, due to the lack of funds, the
property remained undeveloped.
On July 25, 2987, Pres. Aquino issued EO 296 entitling non-filipino
citizens or entities to avail of reparations capital goods and service in the
event of sale, lease or disposition.
Issue: What is the nature of the Roponggi property
Held: The nature of the Roponggi lot as property for public service is
expressly spelled out under the Reparations Agreement between the Phil.
Gov't and Japan. As property of public dominion, the Roppongi lot is outside
the commerce of man. It cannot be alienated. Its ownership is a special
collective ownership for general use and enjoyment, an application to the
satisfaction of collective needs, and resides in the social group. The purpose
is not to serve the State as a juridical person, but the citizens; it is intended
for the common and public welfare and cannot be the object of
appropriation,
Issue: Has it become patrimonial?
Held: The fact that the Roponggi property has not been used for a long time
for actual Embassy service does not automatically convert it to patrimonial
property. Any such conversio happens only if the property is withdrawn from
public use. A property continues to be part of the public domain, not
available for private appropriation or ownership "until there is a formal
declaration on the part of the government to withdraw it from being such.
The respondents enumerate various pronouncements by concerned public
officials insinuating a change of intention. We emphasize, however, that an
abandonment of the intention to use the Roppongi property for public
service and to make it patrimonial property under Article 422 of the Civil
Code must be definite. Abandonment cannot be inferred from the non-use
alone specially if the non-use was attributable not to the government's own
deliberate and indubitable will but to a lack of financial support to repair and
improve the property.
Issue: Does the President have authority to sell said property?
Held: Assuming arguendo that the Roppongi property is no longer of public
domain, there is another obstacle to its sale by the respondents: THERE IS NO
LAW AUTHORIZING ITS CONVEYANCE.
- Sec. 79 of the Revised Administrative Code provides that for
conveyances and contracts which the gov't is a party, respective
Dept. Sec. shall submit the papers to the Congress for approval.
This is retained in Sec. 48, EO 292. Hence, it is not for the
President to convey valuable real property of the government on
her own sole will. Any such conveyance must be authorized and
approved by a law enacted by the Congress.
- Are rivers whether navigable or not, properties of public
dominion?
A: it would seem that art 420 makes no distinction. However, jurisprudence
provides that if a river is capable in its natural state of being used for
commerce, it is navigable in fact, and therefore, becomes a public river.
OWNERSHIP
ARTICLE 427: Ownership may be exercised over things or rights.
Ownership is the independent and general right of the person to control a
thing particularly in his possession, to enjoy it, to dispose it, and to recover it
when it is lost.
Restrictions:
a) those imposed by law – example is the
easement of right of way
b) imposed by the State – expropriation, the
power of taxation
c) those imposed by the owner – entering into a
contract of lease (the owner puts limitation
to himself over his property)
d) those imposed by the grantor – conditions of
the donor
- KINDS OF OWNERSHIP:
a) full ownership – includes all the rights of the
owner, to control, to enjoy, to dispose, and
to recover;
b) naked ownership – there is this kind of
ownership that one has when – like usufruct
– giving this person the usufructuary to use
the land and to enjoy the fruits of the land.
So your ownership over your land is merely
naked because you do not enjoy its fruits.
c) sole ownership – where ownership is vested
only to one person;
d) co-ownership – when the ownership is
vested to 2 or more persons
ARTICLE 428: The owner has the right to enjoy and dispose of a
thing, without other limitations than established by law.
The owner has also a right of action against the holder and
possessor of the thing in order to recover.
- Under Art. 428, the owner has 3 rights:
1. the right to enjoy (jus utendi) – the right to enjoy
includes the right to possess. This is the right to exclude
any person from enjoyment and disposal thereof.
2. the right to consume or abuse (jus abutendi)
3. the right to consume, destroy and abuse.
4. the right to dispose ( jus disponendi )
5. the right to encumber and alienate.
the right to recover or vindicate (jus vindicandi)-
the right to recover.
THE RIGHT TO RECOVER
1) REPLEVIN – an action or provisional remedy filed by the
complainant for the recovery of the possession of the
personal property.
 For the recovery of real property, the 1st
action is forcible entry. That is also related to
the 2nd one which is unlawful detainer. The
3rd is accion publiciana, and the 4th is accion
reinvindicatoria.
2) FORCIBLE ENTRY – it is an action to recover material or
physical possession because another person unlawfully
deprived him of possession because of FISTS (Force,
Intimidation, Stealth, Threats, Strategy).
3) The issue here is possession only, not ownership
 The PRESCRIPTIVE PERIOD to file forcible entry is one
year from dispossession.
 When you file a complaint for forcible entry, what are
the facts that you have to state?
1. That the plaintiff was in prior possession of the
property;
2. That he had been unlawfully deprived of his possession
by another person thru FISTS
3. UNLAWFUL DETAINER – it is an action that is brought
when possession by a landlord, vendee, vendor, or other
person of any land or building is being unlawfully
withheld after the expiration or termination of the right
to hold possession by virtue of any contract, express or implied.
1. PRESCRIPTIVE PERIOD: 1-year from the date of withholding
2. REQUIREMENTS:
a) that the defendant originally had lawful
possession of the property;
b) that the defendant is now unlawfully
withholding the possession of the property
from the plaintiff.
Unlawful Detainer vs Forcible Entry
1. In forcible entry, the requirement is that the plaintiff was in prior
possession (essential) and then he was unlawfully deprived of
possession by the defendant by means of FISTS.
2. In unlawful detainer, the defendant had lawful possession but his
possession became unlawful. The possession of the defendant
was lawful because of a contract, his possession becomes
unlawful perhaps because the contract expired or he violated the
terms or conditions of the contract.
 Characteristics common to unlawful detainer and forcible entry
1. Ownership is not an issue, but only the right of
possession of the premises.
2. the action must be filed within 1 yr from the discovery,
from the dispossession, and from the withholding
4) ACCION PUBLICIANA-
 This action is intended for the recovery of the better right to
possess. The issue here is possession de jure not possession de
facto.
 This is no longer a summary proceeding but a full blown trial.
 PRESCRIPTIVE PERIOD: 10 years
 KINDS:
1. When the entry was not obtained thru FISTS;
2. When the entry was thru FISTS and there was a failure to file a
case of unlawful detainer or forcible entry within one year.
5) ACCION REINVINDICATORIA – the purpose here is to recover
ownership over the real property.
 PRESCRIPTIVE PERIOD: 10 years if possessor in good
faith; 30 years if in bad faith.
 ISSUE: Ownership
ARTICLE 429: The owner or lawful possessor of a thing has the right
to exclude any person from the enjoyment and disposal thereof. For
this purpose, he may use such force as may be reasonably necessary
to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of his property.
 Doctrine of SELF-HELP. The doctrine of self-help exists once
there is an actual or threatened danger or physical
usurpation of property.
Principle of self-Help:
1. It is lawful to repel force by means of force. Implies that the
state of things to be deemed enjoys juridical protection.
2. It is sort of self-defense, where the use of such necessary force
to protect proprietary or possessory rights constitutes a justifying
circumstances under the Penal Code.
The actual invasion of self-help:
1. Mere disturbance of possession – force may be used against it any time as
long as it continues, even beyond the prescriptive period for an action of
forcible entry. Thus, if a ditch was opened by Perdo in the land of Juan, Juan
may close it or cover it by force at any time.
2. Real Dispossession – force, to regain possession can only be used
immediately after the dispossession. Thus, if Juan w/o the permission of
Pedro picks up a book belonging to Pedro and runs off with it, Pedro can
pursue Juan and recover the book by force.

Nature of the Aggression:
1. The aggression must be illicit or unlawful.
1. the right to self-help is not available against the exercise
of right by another, such as when the latter executes an
extra-judicial abatement of nuisance.
2. neither can it be used against the lawful exercise of the
functions of a public official.
2. The act however need not be illicit from the subjective point of
view.
1. it is immaterial that the aggression is executed because
of error of fact or law
2. the existence of a danger of violation of law and right is
sufficient, for the possessor is not a position to the error
of the aggressor and he has to make a quick decision.
PEOPLE vs. NARVAEZ
GR No. L-33466. April 30, 1983
The owner has the right to use force as may be reasonably
necessary to prevent an actual or threatened unlawful physical
invasion of his property. The force exerts must commensurate the
unlawful aggression on his property.
FACTS
MAMERTO NARVAEZ was among those persons from Luzon who
went to Mindanao in 1937 and settled in Maitum, North Cotabato.
He established his residence therein, built his house, cultivated the
area. He was among those who petitioned then President Manuel
L. Quezon to order the subdivision of the defunct Celebes and
Kalaong Plantations, for distribution among the settlers, which
included him. Shortly thereafter, Fleischer and Company, headed
by GEORGE W. FLEISCHER, an American landowner in Negros
Oriental, filed Sales Application No. in 1937 over the same area
formerly leased and later abandoned by Celebes Plantation
Company. Fleischer and Company purchased the said property
upon public auction. In 1966, the settlers in said property were
ousted. Among those ejected was NARVAEZ, who voluntarily
dismantled his house and transferred to his other house which he
built near the highway. The second house was not far from the site
of the dismantled house and was nearer the highway. Aside from
the store, he built a rice mill located about 15 meters cast of the
house, and a concrete pavement between the rice mill and the
house, which is used for drying grains and copra.
In 1966, the settlers including NARVAEZ questioned in court, the
ownership of Fleischer and Company of the disputed land. During
the pendency of the case in 1967, he entered into a contract of
lease with the company concerning Lot 38 of the latter’s property
in order to avoid trouble, until the question of ownership could be
decided. He never paid the agreed rental, although he alleged that
the milling job they did for the deceased FLAVIANO RUBIA, who
was the assistant manager of Fleischer and Company, was
considered payment. Unable to pay, for 6 months, Fleischer and
Company decided to terminate the contract to lease and NARVAEZ
was also ordered to leave the premises and remove the structures
therein within 6 months until December 1968 or else the company
itself will cause its demolition.
However, while it was still August 1968, Fleischer and Company
sent the 2 deceased, DAVIS Q. FLEISCHER (secretary-treasurer and
son of owner) and FLAVIANO RUBIA (assistant manager), whom
together with 3 laborers, commenced fencing Lot 38 leased by
NARVAEZ by putting bamboo posts along the property line parallel
to the highway. Some posts were planted right on the concrete
drier of NARVAEZ thereby cutting diagonally across its center, with
the last post just adjacent to appellant's house. The fence, when
finished, would have the effect of shutting off the accessibility to
appellant's house and rice mill from the highway, since the door of
the same opens to the Fleischer and Company's side.
The next day, the fencing was continued with the installation of
four strands of barbed wire to the posts. At that time, NARVAEZ
was taking his rest, but when he heard that the walls of his house
were being chiseled, he arose and there he saw the fencing going
on. If the fencing would go on, NARVAEZ would be prevented from
getting into his house and the bodega of his rice mill. So he told the
group to stop the construction and just talk it over. The deceased FLEISCHER,
however, refused angrily. Upon hearing this, NARVAEZ apparently lost his
equilibrium, got his shotgun and shot FLEISCHER, hitting him. As FLEISCHER
fell down, RUBIA ran towards the jeep, knowing there is a gun in the jeep.
NARVAEZ fired at RUBIA, likewise hitting him. Both died as a result of the
shooting. NARVAEZ surrendered to the police thereafter, bringing with him
shotgun, claiming he shot two persons. He was tried for murder and was
found guilty in a 1970 decision by the trial court.
On appeal, NARVAEZ alleged that although he has killed FLEISCHER and
RUBIA, he should be exempted from criminal liability because he merely
acted in defense of his person and right. The prosecution on the other hand,
claim that the deceased were in lawful exercise of their rights of ownership
over the land in question, when they did the fencing that sealed off
appellant's access to the highway.
ISSUES
(1) Whether or not the deceased in constructing a fence were in the lawful
exercise of their rights of ownership over the land, leased by NARVAEZ.
(2) Whether or not there was unlawful aggression on NARVAEZ’s property.
RULING
(1) NO, they were not in the lawful exercise of ownership. Although
ownership over the land was still pending in court, the fact that Fleischer and
Company gave him until December 1968 to vacate the premises, the
company should have allowed NARVAEZ to enjoy peaceful enjoyment of his
properties up to that time.
(2) YES. There was an actual physical invasion of appellant's property
which he had the right to resist, pursuant to Art. 429 of the Civil Code.
However, when NARVAEZ fired his shotgun from his window, killing his two
victims, his resistance was disproportionate to the attack. Although under
Art. 429 of the Civil Code, he was the owner or lawful possessor of the
property and that he has the right to use force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical
invasion of his property, the force he exerted was unreasonable to
commensurate the unlawful aggression on his property.
It must be noted that the reasonableness of means employed to prevent or
repel the unlawful aggression is also a requirement of the justifying
circumstance of self defense or defense of one's rights in the Revised Penal
Code. Be that as it may, appellant's act in killing the deceased was not
justifiable, since not all the elements for justification were present. He should
therefore be held responsible for the death of his victims, but he could be
credited with the special mitigating circumstance of incomplete defense
under the RPC.
NARVAEZ was found guilty of two crimes of homicide with the privileged
mitigating circumstance of incomplete defense as well as by two (2) generic
mitigating circumstances of voluntary surrender and obfuscation, without
any aggravating circumstance. He was sentenced to suffer an imprisonment
of 4 months of arresto mayor and payment of indemnification. But
considering that he has been under detention for almost 14 years, his
immediate release is hereby ordered.
ARTICLE 430: Every owner may enclose or fence his land or
tenements by means of walls. Ditches, live or dead hedges, or by
any other means without detriment to servitudes constituted
thereon.
ARTICLE 431: The owner of a thing cannot make use thereof in such
manner as to injure the rights of a 3rd person.
ARTICLE 432: The owner of a thing has no right to prohibit the
interference of another with the same, if the interference is
necessary to avert an imminent danger and the threatened
damage, compared to the damage arising to the owner from the
interference, is much greater. The owner may demand from the
person benefited indemnity for the damage to him.
STATE OF NECESSITY
 This principle allows the use of defensive force to preserve an
existing situation, as against an external event which the passive
subject is entitled to repel as much as an unlawful aggression by
another
 This superior to the doctrine of self-help
 REQUISITES:
1. existence of an evil sought to be avoided
2. the injury feared is greater than that done to avoid it
3. that there be no other practical and less harmful means
of preventing it
4. the means employed is necessary and indispensable to
avert danger.
EFFECT: Indemnity may be demanded by the owner from the
person benefited.
Effect of Mistake
 The right to act in a state of necessity depends upon the
objective existence of the danger with the requisites
provided by law.
 If through error, one believed himself to be in a state of
necessity, or used means in excess of the requirements,
his act would be illicit and the owner of the property can
use the defensive force authorized in art 429.
EFFECT OF NEGLIGENCE
The law does not require that the person acting in a
state of necessity be free from negligence in the creation of such
situation. Thus, if a person picks up an unknown object in a drug
store and eats it, thinking it to be candy, and it turns out to be
poison, he can lawfully drink any antidote he may find in the store,
even without the consent of the owner.
Basis of liability – the benefit derived
Conflict of rights – the rights of self-help under Art 429 is not
available against the act in a state of necessity.
SPOUSES CUSTODIO vs. CA
GR No. 116100. February 9, 1996. 253 SCRA 483
The owners have the right to enclose and fence their property
provided that it should be without detriment to servitudes
constituted thereon.
FACTS
PACIFICO MABASA owned a parcel of land with a 2-door apartment
erected thereon in Taguig, Metro Manila. Said property was
surrounded by other houses owned by PETITIONERS Spouses
CRISTINO and BRIGIDA CUSTODIO and Spouses LITO and MARIA
CRISTINA SANTOS. Taking P. Burgos Street as the point of
reference, there are two passageways, which could be used to
reach MABASA’s apartment.
When said property was purchased by MABASA, there were
tenants already occupying the premises and who were
acknowledged by MABASA as tenants. In 1982, one of said tenants
vacated the apartment. When MABASA went to see the premises,
he saw that the spouses SANTOS had built an adobe fence in the
first passage, making it narrower in width. Defendant MORATO also
constructed her adobe fence and even extended said fence in such
a way that the entire passageway was enclosed. It was then that
the remaining tenants of said apartment vacated the area.
MABASA filed an action for the grant of an easement of right of
way against defendants CUSTODIOs and SANTOSes. The trial court
granted said petition and ordered them to give MABASA
permanent access to the public streets. However, it also ordered
MABASA to pay them P8,000 as indemnity for the permanent use
of the passageway. MABASA subsequently died and was
represented by his heirs, when the case was appealed with the
Court of Appeals, raising the sole issue of whether or not the lower
court erred in not awarding damages in their favor. It affirmed the
trial court’s decision with modification that MABASA be awarded
damages for incurred losses of unrealized rentals when the tenants
vacated the leased premises by reason of the closure of the
passageway. Hence, this appeal by PETITIONERS.
ISSUE
Whether or not PETITIONERS has the right to build the adobe fences to
enclose their property even if it blocked the passageway to and fro
MABASA’s property.
RULING
YES. The act of PETITIONERS in constructing a fence within their lot was a
valid exercise of their right as owners, hence not contrary to morals, good
customs or public policy. The law recognizes in the owner the right to enjoy
and dispose of a thing, without other limitations than those established by
law. Under Art. 430 of the Civil Code, it is within the right of PETITIONERS, as
owners, to enclose and fence their property provided that it should be
without detriment to servitudes constituted thereon.
At the time of the construction of the fence, the lot was not subject to any
servitudes. There was no easement of way existing in favor of private
respondents, either by law or by contract. The fact that the HEIRS OF
MABASA had no existing right over the said passageway is confirmed by the
very decision of the trial court granting a compulsory right of way in their
favor after payment of just compensation.
Hence, prior to said decision, PETITIONERS had an absolute right over their
property and their act of fencing and enclosing the same was an act which
they may lawfully perform in the employment and exercise of said right.
Whatever injury or damage may have been sustained by the HEIRS OF
MABASA by reason of the rightful use of the said land by PETITIONERS is
damnum absque injuria, which is damage caused by a person by his lawful
acts done upon his own property.
ARTICLE 433: Actual possession under claim of ownership raises a
disputable presumption of ownership. The true owner must resort
to judicial process for the recovery of the property.
ARTICLE 435: No person shall be deprived of his property except by
competent authority and for public use and always upon payment
of just compensation.
Should this requirement be not first complied with, the
courts shall protect and in proper case, restore the owner in his
possession.
REQUISITES:
1. The taking must be done by the competent authority;
2. observance of the due process of law;
3. taking must be for public use;
4. upon payment of just compensation
ARTICLE 436: When any property is condemned or seized by
competent authority in the interest of health, safety, or security, the
owner thereof, shall not be entitled to compensation, unless he can
show that such condemnation or seizure is unjustified.
RULE ON SEIZURE:
GENERAL RULE:
Owner should not be entitled for any compensation as to property
seized or condemned by competent authority if it is done in the interest
of health, safety, or security.
EXCEPTION:
The owner should be entitled to compensation if he can show that
such condemnation or seizure is unjustified.
ARTICLE 437: The owner of the parcel of land is the owner of its
surface and of everything under it, and he can construct thereon
any works or make any plantations and excavations which he my
deem proper, without detriment to servitudes and subject to special
laws and ordinances. He cannot complain of the reasonable
requirements of aerial navigation.
ARTICLE 438: Hidden treasure belongs to the owner of the land,
buildings, or other 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, ½
thereof shall be allowed the finder. If the finder is a trespasser, he
shall not be entitled to any share of the treasure.
If the things found be of interest to science or the arts,
the State may acquire them at their just price, which shall be
divided in conformity with the rule stated.
 If the treasure is discovered on the property of the
finder, the treasure belongs to him
 If the treasure is discovered on the property of another,
the sharing is 50-50. 50% belongs to the landowner; 50%
goes to the finder.
Requirements:
1. The finder must not be a trespasser;
2. It should be found by chance
 If the finder is a tenant, lessee, or usufructuary of the
property, the sharing is 50-50.
 If the finder is the employee of the owner of the
property, the sharing is 50-50, if he discovered it by
chance. If he is, however, employed to look for treasure,
then, the treasure belongs to the owner.
ARTICLE 439: By treasure is understood, for legal purposes, any
hidden and unknown deposit of money, jewelry, or other precious
objects, the lawful ownership of which does not appear
CUSTODIO VS CA
Facts: Mabasa owned a parcel of land with a 2 door apartment
erected thereon. The property is surrounded by other immovables
belonging to Custodios, Morato and the Santoses. There are two
possible passageways to the said property. One passing through
row of houses, and the other through the residence of Morato and
the Santoses.
When one of the tenants of the petitioner's left, Mabasa
saw that the Santoses had built an adobe fence in the first passage
making it narrower in width. Said adobe fence was first constructed
by defendants Santoses along their property which is also along the
first passageway. Defendant Morato constructed her adobe fence
and even extended said fence in such a way that the entire
passageway was enclosed. It was then that the remaining tenants
of the apartment vacated the area. RTC ordered the private
respondents to give plaintiff ingress and access. Issue: W/N private
respondents are liable for damages
Held: No. The act of petitioners in constructing a fence within their
lot is a valid exercise of their right as owners, hence not contrary to
morals, good customs or public policy. The law recognizes in the
owner the right to enjoy and dispose of a thing, without other
limitations than those established by law. It is within the right of
petitioners, as owners, to enclose and fence their property. Article
430 of the Civil Code provides that "(e)very owner may enclose or
fence his land or tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to servitudes
constituted thereon."
At the time of the construction of the fence, the lot was
not subject to any servitudes. There was no easement of way
existing in favor of private respondents, either by law or by
contract. The fact that private respondents had no existing right
over the said passageway is confirmed by the very decision of the
trial court granting a compulsory right of way in their favor after
payment of just compensation. It was only that decision which gave
private respondents the right to use the said passageway after
payment of the compensation and imposed a corresponding duty
on petitioners not to interfere in the exercise of said right.
ACCESSION
ARTICLE 440: The ownership of property gives the right by accession
to everything which is produced thereby, or which is incorporated or
attached thereto, either naturally or artificially.
Accession is the extension of ownership over a thing to whatever it produces
thereby or which is incorporated or attached thereto, either naturally or
artificially.
 KINDS:
1. ACCESSION DISCRATA (fruits)- the right of the owner to own
everything which is produced thereby;
Example: natural fruits, industrial fruits, and civil fruits;
2. ACCESSION CONTINUA (incorporated) – the right of the owner to
own everything which is incorporated or attached thereto either
naturally or artificially
SECTION 1: RIGHT OF ACCESSION WITH RESPECT TO WHAT IS PRODUCED BY
PROPERTY
ACCESSION DISCRETA:
ARTICLE 441: To the owner belongs:
1. the natural fruits;
2. the industrial fruits;
3. the civil fruits.
GENERAL RULE: if you are the owner of the land, you are the owner of the
fruit
EXCEPTIONS:
1. if there is a possessor in good faith;
2. when there is usufructuary;
3. when the lessee gets the fruits of the land (the owner gets the
civil fruits in the form of rentals);
4. the contract of antichresis
BACHRACH MOTOR vs. TALISAY-SILAY
GR No. 352230. September 17, 1931
Bonus granted as compensation for the risk of having subjected one’s land to
a lien in favor of the bank is not a civil fruit of the mortgaged property.
FACTS
In 1923, the TALISAY-SILAY MILLING CO. INC., was indebted to the PHILIPPINE
NATIONAL BANK (PNB). To secure the payment of its debt, it succeeded in
inducing its planters, among whom was MARIANO LACSON LEDESMA, to
mortgage their land to the creditor bank. In order to compensate these
planters for the risk they were running with their property under that
mortgage, TALISAY undertook to credit the owners of the plantation bonuses
which is 2% of the debt secured according to the yearly balance.
LEDESMA owned a sum of money to BACHRACH MOTOR CO. that the latter
filed a complaint for the delivery of LEDESMA’s bonus of P13,850 or
promissory notes in its favor.
PNB, to which LEDEMSA’s land was mortgaged filed a third party claim
alleging a preferential right to receive any amount which LEDESMA might be
entitled to from TALISAY as bonus. It argued that said bonus were civil fruits
of the land mortgaged to said bank by LEDESMA. PNB prayed that TALISAY be
ordered to deliver directly to the bank, LEDESMA’s bonus.
The trial court ruled against PNB. Hence, this instant appeal.
ISSUE
Whether or not the bonus in question is civil fruits.
RULING
NO. The bonus which the TALISAY, had to pay the planters who had
mortgaged their lands to PNB in order to secure the payment of the
company's debt to the bank, is not a civil fruit of the mortgaged property.
Article 441 of the Civil Code (then Art. 441) considers 3 things as civil fruits:
(1) the rents of buildings; (2) the proceeds from leaes of lands; and (3) the
income from perpetual or life annuities, or other similar sources of revenue.
As the bonus in question is not the rent of a building or of land, the only
meaning of "civil fruits" left to be examined is that of "income." The said
bonus bore no immediate, but only a remote and accidental relation to the
land mentioned. It was only granted as compensation for the risk of having
subjected one's land to a lien in favor of the bank, for the benefit of
the entity granting said bonus. If this bonus be income or civil fruits
of anything, it is income arising from said risk or from LEDESMA's
generosity in facing the danger for the protection of TALISAY. But, it
certainly is not civil fruits or income from the mortgaged property,
which, as far as this case is concerned, has nothing to do with it.
ARTICLE 442: Natural fruits are the spontaneous products of the
soil, and the young and other products of the animals.
Industrial fruits are those produced by lands of any kind
thru cultivation or labor.
Civil fruits are the rents of buildings, the price of leases
of lands and other property and the amount of perpetual or life
annuities or other similar income.
ARTICLE 443: He who receives the fruits has the obligation to pay
the expenses made by a 3rd person in their production, gathering,
and preservation.
ARTICLE 444: Only such as are manifest or born are considered as
natural or industrial fruits.
With respect to animals, it is sufficient that they are in
the womb of the mother, although unborn.
DISCRETA ( PRODUCED)
NATURAL INDUSTRIAL CIVIL
1. Spontaneous Those produced - rents
products of the by lands of any - price of - fruits received from April 1918 (when TOBON filed his answer) to 1927.
soil kind of leases
2. The young and cultivation or amount of
other products of labor perpetual or
animals life annuities
SECTION 2: RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE
PROPERTY
ARTICLE 445: Whatever is built, planted or sown on the land of
another and the improvements or repairs made therein belong to
the owner of the land, subject to the provisions of the following
articles.
This article deals with accession:
1. building
2. planting
3. sowing
 To the owner of the principal (land) must belong also
the accession
 The union musty, w. certain exception, be effected in
such a manner that to separate the principal from the
accessory, would result in substantial injury to either
 He who is in good faith may be held liable but he should
not be penalized
 He who is in bad faith may be penalized
TACAS vs. TOBON
GR No. 30240. August 23, 1929
The possessor in good faith must return the fruits received from the
time the answer to the complaint was filed, that is, from the time
he became aware that he was in undue possession. During that
time, before the law, good faith ceased.
FACTS
3 parcels of land were owned by and registered in the name of
Francisco Dumadag. He died in 1911. In 1912, during the season for
planting tobacco immediately following the death of Dumadag,
EVARISTO TOBON took possession of the 3 parcels of land in
question planting them with tobacco. Since then, TOBON had been
collecting the fruits therefrom, which consisted of rice and tobacco.
AQUILINA TACAS ET AL., Francisco Dumadag’s predecessor in
interest filed an action seeking to recover from TOBON the
ownership and possession of said 3 parcels of land, together with
the fruits collected by him during the time he was in possession of said land
since 1912. They alleged that TOBON unlawfully took said parcels upon the
death of Francisco Dumadag and that he remained in possession, enjoying
the fruits thereof. TOBON however insisted that he was the owner of said
lands, having purchased them from one Exequiel or Gil Tacas, deceased,
about fifteen years before.
The trial court found that the 3 parcels of land under discussion, were parts
of an estate belonging to Francisco Dumadag, having inherited them from his
parents. It declared the HEIRS OF TACAS to be the absolute owners of the 3
parcels of land in litigation and ordered TOBON to deliver said parcels of land
to the them, together with the fruits collected each year since 1912 until the
complete termination.
Hence, this appeal by TOBON, questioning the order of the court that he
should deliver the fruits collected each year since 1912 until the complete
termination of the case.
ISSUE
Whether or not the restitution should be made since 1912 when TOBON
collected the fruits of the land of the late TACAS until the termination of the
case.
RULING
NO. The possessor in good faith must return the fruits received from the time
the answer to the complaint was filed, that is, from the time he became
aware that he was in undue possession. The court affirmed the decision of
the lower court but modified the award of damages, said judgment and ruled
that TOBON should only be bound to return to the HEIRS OF MABASA, the
The restitution must be made when there was already the legal
consequences of the interruption. Before the law, good faith ceased when
the answer to the complaint was filed, taking this doctrine from the partidas.
In the present case, TOBON hopefully believed in good faith that the subject
property was his and his belief only disappeared upon the unfavorable
judgment of the court against him. Although he may not have been
convinced of it before, TOBON became aware that his possession is unlawful
from the time he learned of the complaint or from the time he was
summoned to the trial. It was at this time that his possession was interrupted
and that he ceased to receive the fruits. Whether or not the defendant was a
possessor in good faith, there existed an act that his right was not secure,
that someone disputed it, and that he might yet lose it.
However, on the basis of Art. 443 of the Civil Code (then Art. 365), TOBON
was also given the right to deduct the expenses of planting and harvesting,
which shall be determined by the trial court, after hearing both parties.
BERNARDO vs. BATACLAN
GR No. 44606. November 28, 1938
A builder in good faith, looses his right of retention when after the
owner of the land has chosen that the builder pay for the land
over indemnifying the builder instead for the building, the builder
fails to pay.
FACTS
VICENTE STO. DOMINGO BERNARDO entered into a contract of sale in
1920 with Pastor Samonte and others, over a parcel of land in Silang, Cavite.
To secure possession of the land from the vendors, BERNARDO instituted a
civil case, where the court rendered judgment in his favor. When he entered
the premises, he found CATALINO BATACLAN therein, who was authorized to
clear the land and make improvements thereon by the previous owners since
1922. BERNARDO then filed a case against BATACLAN, where the lower court
held that indeed, BERNARDO was the owner but nevertheless, BATACLAN
was a possessor in good faith. Because of this, the court ordered that
BATACLAN be reimbursed for work done and improvements he made on the
property.
When both parties appealed to the Supreme Court, the compensation
in favor of BATACLAN was increased and BERNARDO was given the option to
either sell the land to the BATACLAN or to buy the improvements from him
within 30 days. BERNARDO chose to sell the land to BATACLAN. The latter
however, informed the court that he was unable to pay. The court then
issued and order that BERNARDO should pay BATACLAN for the
improvements made on the subject property within 30 days or else the land
would be ordered sold at public auction. Being that BERNARDO did not have
money to pay BATACLAN for the improvements he made on the land, he
moved to reconsider that he be preferred in the order of payment
over BATACLAN. Said motion was denied by the court though.
At the instance of BERNARDO and without objection from
BATACLAN, the court ordered the sale of the land in question at
public auction. The land was sold to Toribio Teodoro. Teodoro
moved that he be placed in possession of the land purchased by
him, which was granted by the court.
BATACLAN complained that he was a possessor in good faith
and that the amount for reimbursement, to which he was entitled
has not yet been paid to him by BERNARDO. Therefore, he said that
he has a right to retain the land in accordance with the provisions
of Article 453 of the Civil Code.
ISSUE
Whether or not the BATACLAN is still entitled to
reimbursement in lieu of the improvements he constructed on the
disputed property.
RULING
NO, he was not. BATACLAN has lost his right of retention.
The Civil Code confirms certain time-honored principles of the
law of property. One of these is the principle of accession whereby
the owner of property acquires not only that which it produces but
that which is united to it either naturally or artificially. Under Art.
445 (then Art. 385), 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. Where, however, the planter, builder, or
sower has acted in good faith, a conflict of rights arises between
the owners and it becomes necessary to protect the owner of the
improvements without causing injustice to the owner of the land.
In view of the impracticability of creating what Manresa calls a
state of "forced coownership", the law has provided a just and
equitable solution by giving the owner of "the land the option to
acquire the improvements after payment of the proper indemnity
or to oblige the builder or planter to pay for the land and the sower
to pay the proper rent (Art. 361). It is the owner of the land who is
allowed to exercise the option because his right is older and
because, by the principle of accession, he is entitled to the
ownership of the accessory thing.
In the case before us, BERNARDO as owner of the land, chose
to require BATACLAN, as owner of the improvements, to pay for
the land. But since BATACLAN said he could not pay, the land was
sold at public auction to Toribio Teodoro. The law, as we have
already said, requires no more than that the owner of the land
should choose between indemnifying the owner of the
improvements or requiring the latter to pay for the land. When he
failed to pay for the land, the defendant herein lost his right of
retention.
ARTICLE 446: All works, sowing, and planting are presumed made
by the owner and at his expense, unless the contrary is proved.
ARTICLE 447: The owner of the land who makes thereon, personally
or thru another, plantings, constructions or works with the
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.
 Rights and Obligations of the Landowner who Uses the
Materials of Another:
The owner is also the builder, sower, planter but the
materials do not belong to him
 If the landowner (LO) acted in good faith:
a. he becomes the owner of the materials but he must
pay for their value
b. exception: when they can be removed w/o destruction to the
work made or the plants – the material owner can remove them
 If the LO acted in bad faith
a. he becomes the owner of the materials, but he must pay their
value and damages
b. exception - when the material owner decides to remove them
whether or not destruction would be caused – the materials will
revert to the material owner who will still be entitled to damages
 Rights and Obligations of the Material owner (MO)
 If the MO acted in good faith
a. reimbursement provided he does not remove them
b. removal provided no substantial injury is caused
 If the MO acted in bad faith
a. absolute right or removal and damages – whether or not substantial
injury is caused
b. reimbursement (value of the materials) and damages – in case he
chooses not to remove
 Landowner is in Good Faith but Material Owner is in Bad
Faith
Landowner would:
 not only be exempted from reimbursement
 but he would also be entitled to consequential damages – as
when the materials are of inferior quality
 Material Owner would lose all rights such as the right to
removal, regardless of whether substantial injury would be
caused
PACIFIC FARMS vs. ESGUERRA
GR No. L-21783. March 25, 1970
The buyer of the building is obliged to pay for the unpaid balance
for the materials use in its construction. Compensation should be
borne by the person who has been benefited by the accession.
FACTS
6 buildings were constructed by INSULAR FARMS INC. Lumber and
construction materials used therein were furnished by CARRIED LUMBER
COMPANY. When INSULAR was unable to pay the price of the lumber and
construction materials, a case was filed by CARRIED LUMBER against it to
redeem the unpaid purchase price.
Being that PACIFIC FARMS contended that it was the owner of the 6
buildings, the lower court ordered that it pay the unpaid portion of the
procurement price of the lumber and construction materials furnished by the
CARRIED LUMBER to its predecessor-in-interest, INSULAR. It ordered for the
sale of the 6 buildings but granted the option to redeem the same to PACIFIC
FARMS, in order to pay CARRIED LUMBER the unpaid balance of the
construction materials.
Hence, PACIFIC appealed. It contended that it was a purchaser for value
and in good faith of the six buildings in question.
ISSUE
Whether or not PACIFIC, as buyer of the buildings should pay CARRIED
LUMBER the unpaid lumber and materials used by the previous owner
INSULAR in the construction of said buildings.
RULING
YES. In applying Article 447 by analogy, the 6 buildings were the
principal and the lumber and construction materials that went into their
construction were the accessory. Thus, PACIFIC, if it did own the 6 buildings,
must bear the obligation to pay for the value of the said materials. CARRIED
LUMBER, which apparently had no desire to remove the materials, and, even
if it were minded to do so, it could not have removed them without
necessarily damaging the building. It had acquired then the corresponding
right to recover the value of the unpaid lumber and construction materials.
Because it was assumed that PACIFIC was in good faith, it was not
pronounced that it be liable for the reparation of damages but only for the
payment of the unpaid price of the lumber and construction materials due to
CARRIED LUMBER. Thus, since PACIFIC benefited from the accession, i.e.,
from the lumber and materials that went into the construction of the 6
buildings, it should shoulder the compensation due to CARRIED
LUMBER, as unpaid furnisher of materials. Hence, compensation
should be borne by the person who has been benefited by the
accession.
ARTICLE 448: The owner of the land on which anything has been
built, sown or planted in good faith shall have the right to
appropriate as his own the works, sowing or planting, after
payment of the indemnity provided for in the Articles 546 and 548
or to oblige the one 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.
 This article applies only if the builder, planter or sower is
in Good Faith
 3 options available to the landowner in good faith if
the BPS is in good faith:
1. right to appropriate as his own the works,
sowing or planting, after payment of the
indemnity;
2. to compel the builder/planter (BP) to pay the
price of the land. With respect to the sower,
pay the proper rent
3. to demand the BP to pay the proper rent, , if
the owner of the land does not choose to
appropriate the building or trees, after
proper indemnity
 The land owner (LO) has the choice whether to
appropriate or compel the builder/planter/sower
(BPS) to purchase the land. And once the choice is
made by the LO, he cannot change it anymore.
However, the option granted to the LO is not
absolute as when it is impractical for the LO to
exercise the option #1. If the option #1 is not
practical then the probable solution is the 2nd
alternative.
 Art 448, however, is inapplicable when:
1. the BPS does not claim ownership over the
land but merely possesses it as a mere holder
2. the BPS is a co-owner.
4. when the land owner constructed a building
in his own land and he sold the land,
excluding the building, to another.
MARTINEZ vs. BAGANUS
GR No. 9438. November 25, 1914.
Art. 448 applies only if there is good faith on both the
part of the land owner and the builder, planter or sower.
It is Art. 546 of the Civil Code which governs this
situation.
FACTS
PAULA MARTINEZ was an owner of a town lot situated in
Batangas. His son, JOSE MOJICA, sold the said lot to VICTORINO
BAGANUS for P70. MARTINEZ filed a case seeking recovery of
ownership and possession of the lot. She also prayed that the sale
made by his son MOJICA to BAGANUS be declared null and void.
BAGANUS in contrast alleged that:
1. he bought the lot from MOJICA with the consent of
MARTINEZ in the belief that it belonged to the former,
2. he had paid a deposit of P30 in advance and agreed
to pay the P40 balance when the instrument of sale had
already been executed as was later done and
3. relying in good faith in the validity of his acquisition,
he had made necessary improvements on the lot, having
built a house and a warehouse and having planted fruit trees.
MOJICA confirmed the sale of the land for the price of P70, having
received P30 in advance and P40 later when the sale was put to record.
However, he contended that he made the condition that if his mother,
MARTINEZ, would not agree to the sale, he might take back the land and
would return the money received. MARTINEZ, in fact, did not agree to it.
The court declared that the sale made by MOJICA as null and void and
ordered BAGANUS:
1. to return the lot to claimed to MARTINEZ,
2. to remove at his own expense the buildings and plants he had
placed thereon, and
3. to pay the costs.
Said order was without prejudice to the right of action he had against
MOJICA, which was reserved, on the ground of ejectment.
ISSUES
(1) Whether or not BAGANUS acquired the land in good faith.
(2) Whether or not he should return the lot claimed and to remove the
buildings and plants he placed thereon at his own expense.
RULING
(1) NO. BAGANUS acquired the lot in bad faith, for he himself said that
he dealt with MARTINEZ but later on consented that MOJICA, who was not
the owner, should appear as the vendor. However, MARTINEZ was also in
bad faith. Bad faith on the part of the owner is understood whenever the act
(of building or planting) has been executed in his presence with his
knowledge and tolerance and without objection.
(2) YES. Being that there was bad faith on the part of MARTINEZ, the
owner and BAGANUS, the builder and planter, the bad faith of one cancels
the bad faith of the other. It is Art. 546 of the Civil Code which governs this
situation and not Art. 448, as the latter applies only if there is good faith on
both the part of the land owner and the builder, planter or sower.
The court ordered without special finding as to the costs:
1. that MARTINEZ should indemnify BAGANUS to the
value of the he has placed thereon, with the right on his part to
retain it until she has reimbursed him for said necessary and
useful improvements; or
2. that BAGANUS should pay MARTINEZ the price of the
land, making himself the legitimate owner thereof.
IGNACIO vs. HILARIO
GR No. L-175. April 30, 1946
The owner of the land, on which buildings, plantings and sowings
had been erected thereon under Art. 448 has 2 options either: (1)
to pay for the building or (2) to sell his land to the owner of the
building. He cannot refuse to choose an option.
FACTS
ELIAS HILARIO and his wife DIONISIA DRES filed a case against DAMIAN,
FRANCISCO and LUIS IGNACIO, concerning the ownership of a parcel of land,
which was partly rice-land and partly residential. The lower court rendered
judgment in favor of HILARIO and DRES declaring:
1. that HILARIO and DRES were the owners of the whole
property and entitled to the possession of the same,
2. that the IGNACIOs were still entitled to hold the possession of
the residential lot until after they are paid the actual market value of
their houses and granaries erected thereon, unless HILARIO and DRES
prefer to sell them said residential lot, in which case the IGNACIOs
shall pay HILARIO and DRES the proportionate value of said
residential lot taking as a basis the price paid for the whole land, and
3. that upon the IGNACIO’s failure to purchase the residential lot
in question, they shall remove their houses and granaries after this
decision haD becomes final and within the period of 60 days from the
date that the court is informed in writing of the attitude of the parties
in this respect.
The court also declared that should the parties could not come to an
extra-judicial settlement with regards to their rights under Art. 448 (then Art.
361), they may appear again before court to determine said rights.
HILARIO and DRES prayed for an order of execution alleging that since
they chose neither to pay the IGNACIOs for the buildings nor to sell to them
the residential lot, the latter should be ordered to remove the structure at
their own expense and to restore plaintiffs in the possession of said lot.
Although the IGNACIOs objected to this motion, the court granted
the same. Hence, this appeal.
ISSUE
Whether or not PACIFIC the IGNACIOs should remove their
buildings from the land belonging to HILARIO and DRES because the
latter chose neither to pay for such buildings nor to sell the land to
the IGNACIOs.
RULING
NO, they should not. The provisions applicable are Art. 448
(then Art. 361) and Art. 546 (then Art. 453) of the Civil Code.
Under Art. 546, the owner of the building erected in good
faith on a land owned by another, is entitled to retain the
possession of the land until he is paid the value of his building.
Under Art. 448, the owner of the land, upon the other hand,
has 2 options either: (1) to pay for the building or (2) to sell his land
to the owner of the building.
But the owner cannot, refuse both to pay for the building and
to sell the land and compel the owner of the building to remove it
from the land where it is erected, as in the present case when
HILARIO and DRES refused to choose any of the options. The
landowner is entitled to a demotion only when, after having chosen
to sell his land, the other party fails to pay for the same.
IGNAO vs. IAC
GR No. 72876. January 18, 1991
Art. 448 of the Civil Code cannot apply where a co-
owner builds, plants or sows on the land owned in
common for then he did not build, plant or sow upon
land that exclusively belongs to another but of which he
is a co-owner. EXEPTION: Unless the co-ownership was
already terminated by partition.
The court cannot also exercise the options given to the
landowner under Art. 448.
FACTS
FLORENCIO IGNAO and his uncles JUAN and ISIDRO IGNAO
were co-owners of a 523 sq. meter parcel of land with in Kawit,
Cavite. Pursuant to an action for partition filed by FLORENCIO, the
court directed the partition of said land, alloting 133.5 square
meters or 2/8 thereof to JUAN and ISIDRO, and giving the
remaining portion with a total area of 266.5 square meters to
FLORENCIO. However, no actual partition was ever effected.
Later, FLORENCIO instituted a complaint for recovery of
possession of real property against Juan and Isidro, wherein he
alleged that the area occupied by the 2 houses built by JUAN and
ISIDRO exceeded the 133.5 square meters previously allotted to
them by the trial court during partition.
Upon agreement of the parties, the trial court ordered a
licensed geodetic engineer to conduct a survey to determine the
exact area occupied by the houses of JUAN and ISIDRO. The survey
subsequently disclosed that the house of Juan occupied 42 square
meters while that of Isidro occupied 59 square meters of
Florencio's land or a total of 101 square meters.
In its decision, the trial court ruled in favor of JUAN and
ISIDRO. In its decision, it was stated therein that although they
occupied a portion of FLORENCIO's property, they should be
considered builders in good faith.
Furthermore, the trial court stated that pursuant to Art. 448
of the Civil Code, the owner of the land (FLORENCIO) should have
the choice to either appropriate that part of the house' standing on
his land after payment of indemnity or oblige the builders in good
faith (JUAN AND ISIDRO) to pay the price of the land. However, the
trial court observed that based on the facts of the case, it would be
useless and unsuitable for Florencio to exercise the first option
since this would render the entire houses of Juan and Isidro
worthless. The trial court then applied the ruling in the similar case
of Grana vs. Court of Appeals, where the Supreme Court had
advanced a more "workable solution". Thus, it ordered Florencio to
sell to Juan and Isidro those portions of his land respectively
occupied by the latter and to execute the necessary deed of conveyance to
them.
On appeal, FLORENCIO argued that Art. 448 does not apply in the
present case but rather Art. 486 since the land in question was not owned by
different parties but were owned in common by the contending parties.
ISSUES
(1) Whether or not Art. 448 should apply to a builder in good faith on a
property held in co-ownership by the contending parties.
(2) Whether or not the court may choose the options given to the
landowner under Art. 448.
RULING
(1) NO. Art. 448 of the Civil Code cannot apply where a co-owner builds,
plants or sows on the land owned in common for then he did not build, plant
or sow upon land that exclusively belongs to another but of which he is a co-
owner. The co-owner is not a third person under the circumstances, and the
situation is governed by the rules of co-ownership.
However, in this case, the co-ownership was terminated by the
partition. It appeared that the homes of JUAN and ISIDRO overlapped or
occupied a portion of 5 sq. meters of the land pertaining to FLORENCIO,
which the former obviously built in good faith, then the provisions of Art. 448
should apply. In fact, Manresa and Navarro Amandi agree that the said
provision of the Civil Code may apply even when there is a co-ownership if
good faith has been established.
In other words, when the co-ownership was terminated by a partition
and it appeared that the house of an erstwhile co-owner has encroached
upon a portion pertaining to another co-owner, which was however made in
good faith, then the provisions of Art. 448 should apply to determine the
respective rights of the parties.
(2) NO. When both the trial and appellate courts peremptorily ordered
the owner of the land, FLORENCIO, to sell to private respondents, JUAN and
ISIDRO, the part of the land they intruded upon adopted, they deprived
FLORENCIO of his right to choose. Such ruling contravened the explicit
provisions of Art. 448 where it is clear and unambiguous that the right of
choice is conferred upon the landowner and not upon the builder and the
courts.
The Supreme Court then modified the decision and directed
FLORENCIO IGNAO within 30 days from entry of judgment to exercise his
option to either appropriate as his own the portions of the houses of JUAN
and ISIDRO IGNAO occupying his land upon payment of indemnity in
accordance with Articles 546 and 548 of the Civil Code, or sell to private
respondents the 101 square meters occupied by them at such price as may be
agreed upon. Should the value of the land exceed the value of the portions of
the houses that JUAN and ISIDRO have erected thereon, they may choose not
to buy the land but they must pay reasonable rent for the use of the portion
of FLORENCIO's land as may be agreed upon by the parties. In case of
disagreement, the rate of rental and other terms of the lease shall be
determined by the trial court. Otherwise, JUAN and ISIDRO may remove or
demolish at their own expense the said portions of their houses encroaching
upon petitioner's land.
PECSON vs.CA
GR No. 115814. May 26, 1995
The court cannot also exercise the options given to the landowner
under Art. 448.
FACTS
Petitioner PEDRO P. PECSON was the owner of a commercial lot located
in Quezon City, on which he built a 4-door 2-storey apartment building worth
P53,000 in 1965. For his failure to pay realty taxes, the lot was sold at public
auction by to Mamerto Nepomuceno, who in turn sold it to the spouses JUAN
and ERLINDA NUGUID.
PECSON challenged the validity of the auction sale on the ground that
the apartment building was not included in the sale because it was not
subject of the litigation. Indeed, the lower court ruled that there was no basis
for the inclusion of the apartment building in the auction sale because what
was sold was merely the lot for PECSON’s failure to pay his taxes. Said
decision was affirmed by the Court of Appeals and the Supreme Court.
Later on, the SPOUSES NAGUID filed with the trial court a motion for
the delivery of possession of the lot and the apartment building. They cited
Art. 546 of the Civil Code. They agreed to comply with said
provision of the law considering that PECSON was a builder in good
faith and has in fact, opted to pay the cost of the construction
spent PECSON. From the complaint itself the plaintiff stated that
the construction cost of the apartment was much more than the
lot. This amount of P53,000.00 is what the SPOUSES NAGUID was
supposed to pay under the law before a writ of possession placing
him in possession of both the lot and apartment would be issued.
However, they also alleged that 3 doors of the apartment
building were being leased at the rent of P7,000 a month each. The
decision having become final as per Entry of Judgment dated June
23, 1993 and from this date on, being the uncontested owner of
the property, the rents should be paid to them instead of PECSON
collecting them. From June 23, 1993, the rents collected by PECSON
amounting to more than P53,000.00 from tenants should be offset
from the rents due to the lot which according to SPOUSES
NAGUID's affidavit is more than P21,000.00 a month.
The court rendered judgment in favor of them and ordered
the reimbursement of PECSON for the construction of the
apartment building at P53,000 and that this amount due should be
made to offset against the amount of rents collected previously by
the PECSON. On appeal, the Court of Appeals partly affirmed said
decision. Hence, this appeal.
ISSUES
(1) How should Art. 448 in relation to Art. 546 be applied?
(2) Whether or not the cost of construction of the apartment
building in 1965 in the amount of P53,000 and not its current
market value, was sufficient reimbursement for necessary and
useful improvements made by PECSON.
(3) Whether or not PECSON should pay monthly rentals equal
to the aggregate rentals paid by the lessees of the apartment
buildings.
RULING
(1) Useful expenses shall be refunded only to the possessor
in good faith with the same right of retention, the person who has
defeated him in the possession having the option of refunding the
amount of the expenses or of paying the increase in value which
the thing may have acquired by reason thereof.
By its clear language, Article 448 refers to a land whose
ownership is claimed by two or more parties, one of whom has
built some works, or sown or planted something. The building,
sowing or planting may have been made in good faith or in bad
faith. The rule on good faith laid down in Article 526 of the Civil
Code shall be applied in determining whether a builder, sower or
planter had acted in good faith.
Article 448 does not apply to a case where the owner of
the land is the builder, sower, or planter who then later loses
ownership of the land by sale or donation. Elsewise stated, where
the true owner himself is the builder of works on his own land, the
issue of good faith or bad faith is entirely irrelevant. Thus in strict
point of law, Article 448 is not opposite to the case at bar.
Nevertheless, we believe that the provision therein on indemnity
may be applied by analogy considering that the primary intent of
Article 448 is to avoid a state of forced co-ownership and that the
parties, including the two courts below, in the main agree that
Articles 448 and 546 of the Civil Code are applicable and indemnity
for the improvements may be paid although they differ as to the
basis of the indemnity.
(2) NO. Article 546 does not specifically state how the value
of the useful improvements should be determined. The respondent
court and the private respondents espouse the belief that the cost
of construction of the apartment building in 1965, and not its
current market value, is sufficient reimbursement for necessary
and useful improvements made by the petitioner.
The objective of Article 546 of the Civil Code is to
administer justice between the parties involved. In this regard, this
Court had long ago stated that the said provision was formulated,
in trying to adjust the rights of the owner and possessor in good
faith of a piece of land, to administer complete justice to both of
them in such a way as neither one nor the other may enrich himself
of that which does not belong to him. Guided by this precept, it is
therefore the current market value of the improvements which should be
made the basis of reimbursement. A contrary ruling would unjustly enrich
the private respondents who would otherwise be allowed to acquire a highly
valued income-yielding four-unit apartment building for a measly amount.
Consequently, the parties should therefore be allowed to adduce
evidence on the present market value of the apartment building upon which
the trial court should base its finding as to the amount of reimbursement to
be paid by the landowner. The value so determined shall be forthwith paid by
the SPOUSES NAGUID otherwise, PECSON shall be restored to the possession
of the apartment building until payment of the required indemnity.
(3) NO. Since the SPOUSES NAGUID have opted to appropriate the
apartment building, PECSON was thus entitled to the possession and
enjoyment of the apartment building, until he was paid the proper
indemnity, as well as of the portion of the lot where the building has been
constructed. This is so because the right to retain the improvements while
the corresponding indemnity is not paid implies the tenancy or possession in
fact of the land in which it is built, planted or sown. PECSON not having been
so paid, he was entitled to retain ownership of the building and, necessarily,
the income therefrom.
PLEASANTVILLE DEV’T CORP. vs. IAC
GR No. 79688. February 1, 1996
Good faith is presumed. It consists in the belief of the builder that
the land he is building on is his and his ignorance of any defect or
flaw in his title.
FACTS
Edith Robillo purchased from PLEASANTVILLE DEVELOPMENT
CORPORATION a parcel of land designated as Lot 9 in Pleasantville
Subdivision, Bacolod City. In 1975, ELDRED JARDINICO bought the rights to
the lot from Robillo. At that time, Lot 9 was vacant. Upon completing all
payments, JARDINICO secured a transfer certificate of title in his name. It was
then that he discovered that improvements had been introduced on Lot 9 by
respondent WILSON KEE, who had taken possession thereof.
It appeared that in 1974, KEE bought on installment Lot 8 of the same
subdivision from C.T. TORRES ENTERPRISES, INC. (CTTEI), the exclusive real
estate agent of PLESANTVILLE. Under the Contract to Sell on Installment, Kee
could possess the lot even before the completion of all installment payments.
After the preparation of the lot plan, CTTEI through its employee, Zenaida
Octaviano, accompanied KEE's wife, Donabelle Kee, to inspect Lot 8.
Unfortunately, the parcel of land pointed by Octaviano was Lot 9. Thereafter,
KEE proceeded to construct his residence, a store, an auto repair shop and
other improvements on the lot.
After discovering that Lot 9 was occupied by KEE, JARDINICO confronted
him. The parties tried to reach an amicable settlement, but failed. In 1981,
JARDINICO's lawyer wrote KEE, demanding that the latter remove all
improvements and vacate Lot 9. When KEE refused to vacate Lot 9,
JARDINICO filed with a complaint for ejectment with damages against KEE.
KEE, in turn, filed a third-party complaint against petitioner and CTTEI. The
court held that the erroneous delivery of Lot 9 to Kee was attributable to
CTTEI. However, it was found out that PLESANTVILLE had already rescinded
its contract with KEE over Lot 8 for the latter's failure to pay the installments
due, and that KEE had not contested the rescission, the court then concluded
that KEE no longer had any right over the lot subject of the contract. He was
ordered to vacate the premises of Lot 8, to remove all structures and
improvements he introduced thereon, to pay reasonable rentals for the use
of Lot 9, and, furthermore, he could not claim reimbursement for the
improvements he introduced on said lot.
On appeal, the RTC ruled that PLESANTVILLE and CTTEI were not at fault
or were not negligent, there being no preponderant evidence to show that
they directly participated in the delivery of Lot 9 to KEE. It found KEE a
builder in bad faith. It further ruled that even assuming arguendo that KEE
was acting in good faith, he was, nonetheless, guilty of unlawfully usurping
the possessory right of JARDINICO over Lot 9 from the time he was served
with notice to vacate said lot, and thus was liable for rental.
The Court of Appeals however ruled that KEE was a builder in good faith
with respect to the improvements he introduced on Lot 9, and is entitled to
the rights granted him under Articles 448, 546 and 548 of the New Civil Code.
It was because he was unaware of the "mix-up" when he began construction
of the improvements on Lot 8. It further ruled that the erroneous delivery
was due to the negligence of CTTEI, and that such wrong delivery was
likewise imputable to its principal, PLESANTVILLE. It also ruled that
the award of rentals was without basis.
PLESANTVILLE, having been ordered to be solidarily liable with
CTTEI., filed this instant petition against KEE, JARDINICO and CTTEI.
ISSUES
(1) Whether or not KEE, a lot buyer who constructed
improvements on the wrong property erroneously delivered by the
owner's agent, a builder in good faith.
(2) What or not PLEASANTVILLE and its agent CTTEI be
solidarily liable for damages due to negligence.
RULING
(1) YES. Good faith consists in the belief of the builder that
the land he is building on is his and his ignorance of any defect or
flaw in his title. And as good faith is presumed, PLESANTVILLE had
the burden of proving bad faith on the part of KEE. At the time he
built improvements on Lot 8, KEE believed that said lot was what
he bought from PLEASANTVILLE. He was not aware that the lot
delivered to him was not Lot 8. Thus, KEE's in good faith. Petitioner
failed to prove otherwise.
The roots of the controversy can be traced directly to the
errors committed by CTTEI, when it pointed the wrong property to
KEE and his wife. It is highly improbable that a purchaser of a lot
would knowingly and willingly build his residence on a lot owned by
another, deliberately exposing himself and his family to the risk of
being ejected from the land and losing all improvements thereon,
not to mention the social humiliation that would follow.
Under the circumstances, KEE had acted in the manner of a
prudent man in ascertaining the identity of his property. Because
he was a layman not versed in the technical description of his
property, he had to find a way to ascertain that what was described
in his transfer certificate of title matched Lot 8. Thus, he went to
the subdivision developer's agent and applied and paid for the
relocation of the lot, as well as for the production of a lot plan by
CTTEI's geodetic engineer. Upon KEE's receipt of the map, his wife
went to the subdivision site accompanied by CTTEI's employee,
Octaviano, who authoritatively declared that the land she was
pointing to as indeed Lot 8. Having full faith and confidence in the
reputation of CTTEI, and because of the company's positive
identification of the property, KEE saw no reason to suspect that
there had been a misdelivery. The steps KEE had taken to protect
his interests were reasonable.
(2). YES. PLEASANTVILLE’s liability lies in the negligence of its
agent CTTEI. For such negligence, PLEASANTVILLE should be held
liable for damages. Now, the extent and/or amount of damages to
be awarded is a factual issue which should be determined after
evidence is adduced.
However, there was no showing that such evidence was
actually presented in the trial court; hence no damages could now
be awarded.
The rights of Kee and Jardinico vis-a-vis each other, as builder
in good faith and owner in good faith, respectively, are regulated
by law (i.e., Arts. 448, 546 and 548 of the Civil Code). It was error
for the Court of Appeals to make a "slight modification" in the
application of such law, on the ground of "equity". At any rate, as it
stands now, KEE and JARDINICO have amicably settled through
their deed of sale their rights and obligations with regards to Lot 9.
ALVIOLA vs. CA
GR No. 117642. April 24, 1998
To fall under Art. 448, the contruction must be of
permanent character. If it is not, like a copra dryer and
store, there is no accession and the builder must remove
them.
FACTS
In 1950, Victoria Sonjaconda Tinagan purchased from Mauro
Tinagan 2 parcels of land situated in Valencia, Negros Oriental.
Thereafter, Victoria and her son Agustin Tinagan, took possession
of said parcels of land. Sometime in 1960, EDITHA ALVIOLA and
PORFERIO ALVIOLA occupied portions of said land, where they built
a copra dryer and a store wherein they engaged in the business of buying and
selling copra.In 1975, Victoria died. 4 months thereafter, Agustin died,
survived by his wife, FLORENCIA BULING VDA. DE TINAGAN and children
(TINAGANs).
In 1976, petitioner EDITHA assisted by her husband filed a complaint for
partition and damages, claiming to be an acknowledged natural child of
deceased Agustin Tinagan and demanding the delivery of her shares in the
properties left by the deceased. Said petition was dismissed by both the trial
court and upon appeal, by the Supreme Court on the ground that recognition
of natural children may be brought only during the lifetime of the presumed
parent.
In 1988, the TINAGANS filed a complaint for recovery of possession
against the SPOUSES ALVIOLA, praying, among others, that they be declared
absolute owners of the said parcels of land, and that said spouses be
declared to vacate the same, to remove their copra dryer and store. The
court granted the petition of the TINAGANs and ruled that they were the
absolute owners of said property and that the SPOUSES ALVIOLA were in bad
faith in possessing the disputed properties and in ruling that the
improvements thereon are transferable. Hence, they were ordered to
remove their store and dryer on the premises without injury and prejudice to
the TINAGANs.
ISSUE
Whether or not the SPOUSES ALVIOLA possessed the property in bad
faith.
RULING
YES. There was bad faith on the part of the SPOUSES ALVIOLA when they
constructed the copra dryer and store on the disputed portions since they
were fully aware that the parcels of land belonged to VICTORIA TINAGAN.
And, there was likewise bad faith on the part of the TINAGANs, having
knowledge of the arrangement between petitioners and VICTORIA TINAGAN
relative to the construction of the copra dryer and store.
Thus, for purposes of indemnity, Article 448 of the New Civil Code
should be applied. However, the copra dryer and the store, as determined by
the trial court and respondent court, are transferable in nature. Thus, it
would not fall within the coverage of Article 448. As the noted civil law
authority, Senator Arturo Tolentino, aptly explains: "To fall within the
provision of this Article, the construction must be of permanent character,
attached to the soil with an idea of perpetuity; but if it is of a transitory
character or is transferable, there is no accession, and the builder must
remove the construction. The proper remedy of the landowner is an action to
eject the builder from the land."
GEMINIANO vs. CA
G.R. No. 120303. July 24, 1996.
Art. 448 only applies when the possessor in good faith, i.e., one
who builds on land with the belief that he is the owner thereof. It
does not apply where one's only interest is that of a lessee under a
rental contract.
FACTS
Paulina Amado vda. de Geminiano, mother or petitioner GEMINIANOs
originally owned a lot containing 314 sq. m. A 12 sq. m. portion of it stood the
GEMINIANOs’ bungalow, which they sold to DOMINADOR NICOLAS and MARY
NICOLOS in 1978 for P6, 000 with an alleged promise to sell to the latter that
portion of the lot occupied by the house. Subsequently, vda. De Geminiano,
executed a contract of lease over a 126 sq. m. portion of the lot, including
that portion on which the house stood in favor of the NICOLASes for P40.00
per month for a period of 7 years. The NICOLASes then introduced additional
improvements and registered the house in their names. After the expiration
of the lease contract however, vda. De Geminiano refused to accept the
monthly rentals.
It turned out that the lot in question was the subject of a suit, which
resulted in its acquisition by one Maria Lee in 1972. In 1982, Lee sold the lot
to Lily Salcedo, who in turn sold it in 1984 to the spouses Agustin and Ester
Dionisio. In 1992, the Dionisio spouses executed a Deed of Quitclaim over the
said property in favor of the GEMINIANOs as such, the lot was registered in
the latter's names.
Later in 1993, the GEMINIANOs sent a letter to the NICOLASes
demanding that the premises be vacated and that the rentals in arrears be
paid within 20 days. Upon failure of the NICOLASes to heed the
demand, the GEMINIANOs filed a complaint for unlawful detainer
and damages.
In its decision, the lower court ruled that since the private
respondents were assured by the petitioners that the lot they
leased would eventually be sold to them, they could be considered
builders in good faith, and as such, were entitled to reimbursement
of the value of the house and improvements with the right of
retention until reimbursement had been made.
ISSUE
Whether or not the NICOLASes were builders in good faith
and entitled to reimbursement for the value of the house and
improvements they erected on the property of the GEMINIANOs or
were mere lesees.
RULING
NO, they could not be considered as possessors nor builders in
good faith. Being mere lessees, the private respondents knew that
their occupation of the premises would continue only for the life of
the lease.
Article 448 of the Civil Code, in relation to Article 546 of the
same Code, which allows full reimbursement of useful
improvements and retention of the premises until reimbursement
is made, applies only to a possessor in good faith, i.e., one who
builds on land with the belief that he is the owner thereof. It does
not apply where one's only interest is that of a lessee under a rental
contract', otherwise, it would always be in the power of the tenant
to "improve" his landlord out of his property.
Suffice it to say, "a state of forced coownership" would not be
created between the petitioners and the private respondents.
It must be stressed, however, that the right to indemnity
under Article 1678 of the Civil Code arises only if the lessor opts to
appropriate the improvements. Since the petitioners refused to
exercise that option, the private respondents cannot compel them
to reimburse the one-half value of the house and improvements.
Neither can they retain the premises until reimbursement is made.
The private respondents' sole right then is to remove the
improvements without causing any more impairment upon the
property leased than is necessary.
PADA-KILARIO vs. CA
G.R. No. 134329. Jan. 19, 2000.
If a possessor were in possession of the property without
paying any rental as they only relied on the liberality
and tolerance of the landowner are not possessors nor
builders in good faith because they know that their
occupation of the premises may be terminated any time.
FACTS
Jacinto Pada owned a parcel of land of residential and coconut
land in Leyte denominated as Cadastral Lot No. 5581. During his
lifetime, his half-brother, Feliciano Pada, obtained permission from
him to build a house on the northern portion of Cadastral Lot No.
5581. When Feliciano died, his son, Pastor, continued living in said
house. Petitioner Verona Pada-Kilario, one of Pastor's children, had
been living in that house since 1960.
Later, Jacinto Pada died intestate. His 6 children, 1 personally
and others through their children, entered into an extra-judicial
partition of his estate, which included Cadastral Lot No. 5881. One
of the sons of Jacinto Pada was Marciano Pada. The latter’s
daughter, Maria Pada, sold the co-ownership right of his father to
respondent SILVERIO PADA, who was also a first cousin. Thereafter,
SILVERIO demanded that spouses VERONA PADA-KILARIO and
RICARDO KILARIO vacate the northern portion of Cadastral Lot No.
5581 so his family can utilize the said area. Unable to settle for an
amicable settlement, SILVERIO instituted a complaint for ejectment
with prayer for damages against spouses KILARIO.
Later, heirs of Amador Pada, also a son of Jacinto Pada,
executed a Deed of Donation, transferring to petitioner Verona
Pada-Kilario, their respective shares as co-owners of Cadastral Lot
No. 5581. Hence, the SPOUSES KILARIO averred that the northern
portion of Cadastral Lot No. 5581 had already been donated to them by the
heirs of Amador Pada. Hence, they were virtually converted as standing co-
owners of the land under controversy and became the undivided owners of
the whole estate. Their possession then in the northern portion was being
lawful. They also contended that they had been occupying the subject
property since 1960 without ever paying any rental.
The RTC ordered the SPOUSES KILARIO to vacate the premises in issue
and return peaceful possession to SILVERIO being the lawful possessor in
concept of owner. When the SPOUSES KILARIO appealed with the CA, the
same was denied. Hence, this petition
ISSUE
Whether or not the SPOUSES KILARIO were builders in good faith.
RULING
NO, they were not builders in good faith.
The SPOUSES KILARIO were estopped from impugning the extrajudicial
partition executed by the heirs of Jacinto Pada after explicitly admitting in
their Answer that they had been occupying the subject property since 1960
without ever paying any rental as they only relied on the liberality and
tolerance of the Pada family.
Considering that petitioners were in possession of the subject property
by sheer tolerance of its owners, they knew that their occupation of the
premises may be terminated any time. Persons who occupy the land of
another at the latter's tolerance or permission, without any contract between
them, is necessarily bound by an implied promise that they will vacate the
same upon demand, failing in which a summary action for ejectment is the
proper remedy against them. Thus, they could be considered possessors nor
builders in good faith.
It is well-settled that both Article 448 and Article 546 of the New Civil
Code which allow full reimbursement of useful improvements and retention
of the premises until reimbursement is made, apply only to a possessor in
good faith, i.e., one who builds on land with the belief that he is the owner
thereof. Verily, persons whose occupation of a realty is by sheer tolerance of
its owners are not possessors in good faith.
Neither did to donate by some of the heirs, convert SPOUSES KILARIO
into builders in good faith for at the time the improvements were built on the
premises, such promise was not yet fulfilled, i.e., it was a mere expectancy of
ownership that may or may not be realized. More importantly, even as that
promise was fulfilled, the donation was void for the sonors were not the
owners of Cadastral Lot No. 5581. As such, petitioners cannot be said to be
entitled to the value of the improvements that they built on the said lot.
ARTICLE 449: He who builds, plants, or sows in bad faith on the land
of another, loses what is built, planted, or sown without the right of
indemnity.
ARTICLE 450: The owner of the land on which anything has been
built, planted, or sown in 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 expense 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.
1. The landowner has :
i. the right of removal of whatever is built, planted, or
sown on his property in bad faith; or
ii. may compel the builder/planter to pay the price of the
land; or the sower to pay the proper rent
2. The right of removal is absolute.
3 options available to the land owner if the builder is in bad faith:
1.) appropriation without need to indemnify the builder in bad faith
plus damages;
2.) demand the builder in bad faith to remove the house he built. He
has the absolute right of removal plus damages;
3.) compel the builders in bad faith to pay the value of the land if the
value of the land is not considerably more than the value of the
improvements. If the LO chooses to compel the builder to pay the
land, he has to do so, plus damages.
DE VERA vs. COURT OF APPEALS
 GR No. 97761. April 14, 1999
He who builds in bad faith on the land of another, losses
what he built, without right to indemnity.
FACTS
In 1947, private respondent RICARDO RAMOS filed a
homestead application for a parcel of land in Isabela. His
homestead application was approved by the District Land Officer.
In 1955, a homestead patent and an original certificate of title was
was issued to RAMOS, covering an area of 9 hectares, 28 acres and
20 centares.
RAMOS then brought a complaint for recovery of possession
against several people occupying his land. The court came out with
a decision adjudging the validity of the title of Ramos.
In 1981, RAMOS wrote petitioners AGUEDA DE VERA, and her
children MARIO DE LA CRUZ, EVANGELINE DELA CRUZ, and
EDRONEL DE LA CRUZ (DE VERA ET AL.), reminding them that their
house was on his titled property. He asked them whether they
were going to buy the portion occupied by them or to lease the
same on a yearly or monthly basis; otherwise, he would be
constrained to proper legal action against them. But the letter of
RAMOS was ignored by DE VERA ET AL.
Hence, in 1983, RAMOS filed, a complaint for recovery of
property against DE VERA ET AL. He alleged that he was the legal
and absolute owner of a certain parcel of land, containing an area
of 3,670 square meters and that a triangular portion of it,
containing an area of 22 square meters was occupied by DE VERA
ET AL.. He also averred that DE VERA ET AL. had constructed a
house of strong and permanent material that year after removing
their previous building of light materials in January or February of
1970. He added that he demanded that DE VERA ET AL. remove
their improvement thereon and vacate the said portion but they
had refused without any just or lawful cause to do so.
DE VERA ET AL alleged on the other hand that they had been
in possession not only of 22 square meters but 70 square meters of
land. Their predecessor-in-interest, Teodoro de la Cruz, husband of
AGUEDA DE VERA, during his lifetime, filed a Miscellaneous Sales
Application, which although pending was given due course. In fact,
Teodoro de la Cruz also declared the said land for taxation
purposes and after his death, by them, as his heirs.
During trial, the patries agreed that a relocation survey of
subject property be conducted. The survey showed that RAMOS
owned the land occupied by DE VERA ET AL., particularly portions A
B & C. Hence, the court ordered DEVERA ET AL., to vacate the land,
to deliver the possession thereof to the plaintiff, and to remove, at
their expense, all improvements they have constructed or erected
thereon. It also declared that they were possessors in bad faith and
were made liable to RAMOS for rental payments for the use of the
disputed property.
On appeal with the Court of Appeals, said decision was
modified, dismissing the complaint as to portion A of the property.
Unsatisfied, DE VERA ET AL. filed a petition via certiorari. They
contended that they should not have found to be possessors in bad
faith since their possession was by virtue of a valid title, the
Miscellaneous Sales Application of their predecessor-in-interest,
Teodoro dela Cruz.
ISSUES
(1) Whether or not DE VERA ET AL. were possessors in bad
faith.
(2) Whether or not they should also be made liable to RAMOS
for rental payments for the use of the disputed property.
RULING
(1) YES, they were possessors in bad faith.
Records disclose that prior to the construction in 1983 of
DE VERA ET AL.'s house on the land under controversy, a demand
letter dated 1981 was sent to them by RAMOS, informing them that
the land they were possessing and occupying is within his titled
property.
In the same letter, the RAMOS gave petitioner AGUEDA
DE VERA the option to either pay him the value of the property or
lease the same on a yearly or monthly basis. However, the contending parties
failed to reach a compromise agreement.
Although they were sent said latter in 1981, DE VERA ET AL. still
constructed their house on said propety. Such were "outward acts and
proven conduct" indicating bad faith of DE VERA ET AL. as possessor and
builder.
(2) NO, they should be made liable for rental payments for the use of
the disputed property but rather should remove what they built, as the
option chosen by RAMOS.
Under Art. 449 — He who builds in bad faith on the land of another,
losses what he built, without right to indemnity. Applying Art. 449, in relation
to Art. 450, the landowner has three alternative rights, either:
1. to appropriate what has been built without any obligation to
pay indemnity therefor; or
2. to demand the builder to remove what he had built; or
3. to compel the builder to pay the value of the land.
In any event, the landowner is entitled to be indemnified by the builder in
bad faith, pursuant to Article 451.
In the case under consideration, RAMOS, the landowner, availed of the
second alternative, which option is legally feasible under the attendant facts
and circumstances.
HEIRS OF DURANO vs. UY
GR No.136456. October 24, 2000
The landowner, when the builder is in bad faith, may compel (1)
appropriation what was built, (2) removal of what was built, or (3)
payment for the value of the land. In any of this options, the
landowner is entitled for payment of damages.
FACTS
A 128-hectare parcel of land located in the barrios of Dunga and
Cahumayhumayan, Danao City eas owned by Cebu Portland Cement
Company (CEPOC). Said proerty had been purchased by Durano & Co., Inc.
In 1973, the late Congressman RAMON DURANO, SR., together with his
son RAMON DURANO III, and the latter’s wife, ELIZABETH HOTCHKISS
DURANO, instituted an action for damages against SPOUSES ANGELES
SUPELVEDA UY and EMIGDIO BING SING UY ET AL. (SPOUSES UY ET AL). They
accused SPOUSES UY ET AL of:
1. officiating a “hate campaign” against them by lodging
complaints in the Police Department of Danao City for their so-called
“invasion” of SPOUSES UY’s ET AL. alleged properties,
2. sending another complaint to the President of the Philippines
in February 1971, which depicted petitioners as “oppressors”,
“landgrabbers” and “usurpers” of respondents’ alleged rights,
3. After 2 investigations, the complaints if SPOUSES UY ET AL.
were dismissed as “baseless” and
4. spreading false rumors and damaging tales which put
petitioners into public contempt and ridicule.
SPOUSES UY ET AL. on the other hans, alleged:
1. that they were the owners of the land as some came into
ownership through inheritance from their parents, who in turn
inherited them from their own parents and some by purchase from
the former occupants thereof.
2. that they and their predecessors were responsible for the
plantings and improvements on the property.
3. that they were the ones who sought for the properties to be
tax-declared in their respective names, and they continually paid the
taxes thereto.
4. that they received notices dated signed by the late Ramon
Durano, Sr., informing them that t he lands which they were tilling
and residing in, formerly owned by the Cebu Portland Cement
Company (CEPOC), had been purchased by Durano & Co., Inc.
5. However, even before many of the respondents received
notices to vacate, men who identified themselves as employees of
Durano & Co. proceeded to bulldoze the lands occupied by various
respondents, destroying in their wake the plantings and
improvements made by the respondents therein.
6 .On some occasions, respondents alleged, these men fired
shots in the air.
7. Respondents maintained that they were unaware of anyone
claiming adverse possession or ownership of these lands until the
bulldozing operations in 1970.
 In 1970, Durano & Co. sold the disputed property to petitioner
Ramon Durano III, who procured the registration of these lands in
his name.
The court rendered judgment in favor of SPOUSES UY ET AL.
and against the HEIRS OF DURANO, directing the latter to pay the
former for indemnity in reparation of the destroyed properties
during the demolition. It also declared that SPOUSES UY ET AL.
were in possession of the properties to be in the concept of owner
and that the HEIRS OF DURANO were the ones in good faith.
Dissatisfied, the HEIRS OF DURANO appealed to the Court of
Appeals, which affirmed the trial court’s decision. On appeal to the
Supreme Court, the HEIRS OF DURANO alleged that they were
builders in bad faith and that the order for the return and payment
of indemnity in favor of the SPOSES UY ET AL. was erroneous.
ISSUES
(1) Whether or not the HEIRS OF DURANO were builders on
bad faith.
(2) Whether or not the HEIRS OF DURANO should return the
properties to the SPOUSES UY ET AL. and pay indemnity in
reparation of the destroyed properties overran by the bulldozers.
. canceled and new ones were issued, further dividing said lots into 4 lots. Lots
RULING
(1) YES, they were builders in bad faith.
A purchaser of a parcel of land cannot close his eyes to
facts which should put a reasonable man upon his guard, such as
when the property subject of the purchase is in the possession of
persons other than the seller. A buyer who could not have failed to
know or discover that the land sold to him was in the adverse
possession of another is a buyer in bad faith.
In the same manner, the purchase of the property by
petitioner Ramon Durano III from Durano & Co. could not be said to
have been in good faith. It is not disputed that Durano III acquired
the property with full knowledge of respondents’ occupancy
thereon. There even appears to be undue haste in the conveyance
of the property to Durano III, as the bulldozing operations by
Durano & Co. were still underway when the deed of sale to Durano
III was executed on September 15, 1970. There was not even an
indication that Durano & Co. attempted to transfer registration of
the property in its name before it conveyed the same to Durano III.
Since petitioners knew fully well the defect in their titles,
they were correctly held by the Court of Appeals to be builders in
bad faith.
(2) YES, they should.
Art. 449. states that He who builds, plants or sows in bad
faith on the land of another, loses what is built, planted or sown
without right of indemnity.
In relation to Art. 50 & 51, the owner of the land has three
alternative rights:
(1) to appropriate what has been built
without any obligation to pay indemnity therefor, or
(2) to demand that the builder remove what
he had built, or
(3) to compel the builder to pay the value of
the land.
In any case, the landowner is entitled to damages under Article 451.
Hence, the award of damages was proper.
ARTICLE 451: In the cases of the 2 preceding articles, the landowner
is entitled for damages from the builder, planter, or sower.
 In summary:
a. BPS (in good faith) = 2 rights under 448
+ limited right of removal and no
damages.
b. BPS (in bad faith) = 2 rights under 448 +
absolute right of removal + damages.
BAES vs. CA
GR No. 108065. July 6, 1993
If the riparian owner is entitled to compensation for the
damage to or loss of his property due to natural causes,
there is all the more reason to compensate him when the change
in the course of the river is effected through artificial means such
as when the government dug up a canal therein to improve the
flow of a creek.
FACTS
In 1962, the government dug a canal on a private parcel of land
covering an area of 33,902 sq. m. to streamline the Tripa de Gallina creek.
This lot was later acquired by FELIX BAES, who registered it in his name. He
then had it subdivided into three lots, Lots A, B and C. In exchange for Lot B,
which was totally occupied by the canal, the government gave BAES a lot
with exactly the same area through a Deed of Exchange of Real Property. Said
property was near but not contiguous to Lot C of BAES. It was later registered
in the name of BAES. The soil displaced by the canal was used to fill up the
old bed of the creek.
Meanwhile, BAES had Lot C and a portion of Lot A was resurveyed and
subdivided. In 1968, he submitted a petition for the approval of his resurvey
and subdivision plane, claiming that after the said lots were plotted by a
competent surveyor, it was found that there were errors in respect of their
bearings and distances. Said resurvey-subdivision plan was approved by the
CFI of Pasay City. As a result, the old TCTs covering the said lots were
3 & 4 were later consolidated and this time further subdivided into 4 more
lots.
In 1978, the Republic of the Philippines discovered that Lot 2, on which
the petitioners had erected an apartment building covered a portion of the
Pasay Cadastre, which was a filled-up portion of the Tripa de Gallina creek. It
also found that the land covered by BAES’ TCTs had been unlawfully
enlarged. In 1982, the government filed a petition for cancellation of the
TCTs of BAES. The trial court therefore decreed that the original be reverted
to its status before the resurvey-subdivision and ordered the cancellation of
the TCTs. The Court of Appeals affirmed the same decision in toto.
On appeal with the Supreme Court, FELIX and RAFAELA BAES in relying
on Article 461 of the Civil Code, claimed as their own, the old bed of the Tripa
de Gallina Creek, which was filled up by soil excavated from Lot B. Said Lot B
was the land of BAES, on which the government dug a canal. The petitioners
relied heavily on Dr. Arturo M. Tolentino's interpretation of Article 461 to
wit:
This article (461) refers to a natural change in the course of
a stream. If the change of the course is due to works
constructed by concessionaires authorized by the
government, the concession may giant the abandoned river
bed to the concessionaires. If there is no such grant, then, by
analogy, the abandoned river bed will belong to the owners
of the land covered by the waters, as provided in this article,
without prejudice to a superior right of third persons with
sufficient title.
On the basis of their claim of ownership, FELIX and RAFAELA BAES
claimed for compensation.
The government rejected this claim and averred that the petitioners
had already been fully compensated for it in 1970 when they agreed to
exchange their B with another lot belonging to the government.
ISSUE
(1) Whether or not the riparian owner is entitled to compensation for
the damage to or loss of his property due to the act of the government of
digging therein.
(2) Whether or not FELIX and RAFAELA BAES should be allowed
compensation.
RULING
(1) YES, the riparian owner is entitled to compensation for the
damage to or loss of his property.
If the riparian owner is entitled to compensation for the damage to
or loss of his property due to natural causes, there is all the more reason to
compensate him when the change in the course of the river is effected
through artificial means. The loss to the petitioners of the land covered by
the canal was the result of a deliberate act on the part of the government
when it sought to improve the flow of the Tripa de Gallina creek. It was
therefore obligated to compensate FELIX and RAFAELA BAES for their loss.
(2) NO. FELIX and RAFAELA BAES have already been so compensated.
FELIX BAES was given another lot in exchange for the Lot B through the Deed
of Exchange of Real Property dated 1970. This was a fair exchange because
the two lots were of the same area and value and the agreement
was freely entered into by the parties. FELIX and RAFAELA BAES
could not now claim additional compensation because, as correctly
observed by the Solicitor General, to allow petitioners to acquire
ownership of the dried-up portion of the creek would be a clear
case of double compensation and unjust enrichment at the
expense of the state.
The exchange of lots between the petitioners and the
Republic was the result of voluntary negotiations. If these had
failed, the government could still have taken Lot B under the power
of eminent domain, upon payment of just compensation, as the
land was needed for a public purpose.
ARTICLE 452: The builder, planter, or sower in bad faith is entitled
to reimbursement for the necessary expenses of preservation of the
land.
ARTICLE 453: If there was bad faith, not only on the part of the
person who built, planted or sowed on the land of another, but also
on the part of the owner of such land, the rights of one and the
other shall be the same as though both had acted in good faith.
It is understood that there is bad faith on the part of the
landowner whenever the act was done with his knowledge and
even without opposition on his part.
In other words, bad faith + bad faith = good faith
ARTICLE 454: When the landowner acted in bad faith and the
builder, planter, sower, preceded in good faith, the provisions of
Article 447 shall apply.
 The LO must pay for the value of the house +
DAMAGES because he is in bad faith. If the
material owner chose to remove or destroy the
house, the LO would still be liable for damages.
ARTICLE 455: If the materials, plants or seeds belong to a 3rd person
who has not acted in bad faith, the owner of the land shall answer
subsidiarily for their value and only in the event that the one who
made use of them has no property with which to pay.
This provision shall not apply if the owner makes use of
the right granted by Article 450. if the owner of the materials,
plants or seeds has been paid by the builder, planter or sower, the
latter may demand form the landowner the value of the materials
and labor.
 Three parties involved:
a. land owner (LO)
b. builder/ planter/sower (BPS)
c. material owner (MO)
 GENERAL RULE: If they (all parties) are all in good faith,
the BPS who uses the material of another must
reimburse the MO for the materials.
 EXCEPTIONS:
a. the BPS may demand reimbursement from
the LO provided the BPS is insolvent;
b. the BPS is in good faith;
c. the LO decides to appropriate whatever is
built, planted, or sown.
 The LO is only oblige to reimburse if the 3 items
enumerated above are present. The LO has also the
option to reimburse the BPS if he chooses to reimburse.
Now after the BPS pays the MO, when can he not ask for
reimbursement from the LO?
a. If he is in bad faith;
b. if the LO exercises his option under 450
which is the demolition;
c. if he compels the BPS to buy his land.
ARTICLE 456: In the cases regulated in the preceding articles, good
faith does not necessarily exclude negligence, which gives right to
damages under Article 2176.
ACCESSION NATURAL
ARTICLE 457: To the owners of the lands adjoining the banks of the
rivers belong to the accretion which they gradually receive form the
effects of the current of the waters.
GENERAL RULE To the owners of the lands adjoining the banks of the
rivers belong to the accretion which they gradually receive form the
effects of the current of the waters
4 FORMS OF NATURAL ACCESSION:
1. alluvium – is the soil deposited or added to the lands adjoining the bank
of rivers.
 Accretion - the process by which the soil is deposited.
 Riparian owner - the owner of the land adjacent to the river
and this includes creeks, streams, and lakes.
REQUISITES:
a) should be gradual, natural, and imperceptible;
b) the cause of the alluvium is the current of the
river ( not due to work expressly designed for
that purpose);
c) current must be that of a river, lake, steam or
creek;
d) river must continue to exist;
e) The increase must be comparatively little (It
should not be so big.)
2. avulsion
3. change of course of rivers
4. formation of islands
GRANDE vs. CA
GR No. L-17652. June 30, 1962
To the owner of lands adjoining the banks of rivers, belongs the
accretion which they gradually receive from the effects of the
current of the water. But just because that it was adjoined to the
riparian owner’s unregistered land does not ipso facto mean that
it is automatically registered as well. Thus, if it is unregistered,
third persons may acquire equitable title thereto through
acquisitive prescription.
FACTS
IGNACIO GRANDE ET AL. were owners of a parcel of land in the province
of Isabela by inheritance from their deceased mother Patricia Angui. When it
was surveyed for purposes of registration sometime in 1930, its northeastern
boundary was the Cagayan River. Since then, and for many years thereafter,
a gradual accretion on the northeastern side took place, by action of the
current of the Cagayan River, so much so, that by 1958, the bank thereof had
receded to a distance of about 105 meters from its original site, and an
alluvial deposit of .9964 hectares, more or less, had been added to the
registered area.
ESTEBAN CALALUNG and DOMINGO CALALUNG were found to be
possessing said alluvium that GRANDE ET AL. filed an action to quiet title to
said portion formed by accretion against the CALALUNGs. They alleged that
they and their predecessors-in-interest were formerly in peaceful and
continuous possession thereof, until September, 1948, when the CALALUNGs
entered upon the land under claim of ownership.
The CALALUNGs on the other hand, claimed ownership in themselves,
asserting that they had been in continuous, open, and undisturbed
possession of said portion, since prior to the year 1933 to the present. Hence,
they had already acquired the property by accretion.
The CFI ruled in favor of GRANDE ET AL. and ordered the CALALUNGs to
vacate the premises of said property. The CA on the other hand, ruled that
the CALALUNGs had rightful ownership over the contested property by
prescription.
ISSUE
(1) Whether or not the alluvium belonged to GRANDE ET AL.
(2) Whether or not the CALALUNGs have acquired the alluvial property
in question through acquisitive prescription.
RULING
(1) YES. That the area in controversy has been formed through
a gradual process of accretion which started in the early thirties, is
a fact conclusively established by the evidence for both parties. By
law, therefore, unless some superior title has supervened, it should
properly belong to the riparian owners, specifically in accordance
with the rule of natural accession in Art. 366 of the old Civil Code
(now Art. 457), which provides that 'to the owner of lands adjoining
the banks of rivers, belongs the accretion which they gradually
receive from the effects of the current of the water.
The land in question being an accretion to the mother or
registered land of GRANDE ET AL, the accretion belongs to the
them. Assuming, arguendo that the accretion has been occupied by
the CALALUNGs since 1948, or earlier, is of no moment, because
the law does not require any act of possession on the part of the
owner of the riparian owner, from the moment the deposit
becomes manifest. Further, no act of appropriation on the part of
the riparian owner is necessary, in order to acquire ownership of
the alluvial formation, as the law does not require the same.
There can be no dispute that both under Article 457 of
the new Civil Code and Article 966 of the old, petitioners are the
lawful owners of said alluvial property, as they are the registered
owners of the land to which it adjoins.
(2) YES. GRANDE ET AL. lost right over the land through
prescription because the CALALUNGs were in possession of the
alluvial lot since 1933 or 1934, openly, continuously and adversely,
under a claim of ownership up to the filing of the action in 1958.
Just as an unregistered land purchased by the registered
owner of the adjoining land does not, by extension, become ipso
facto registered land. Ownership of a piece of land is one thing, and
registration under the Torrens system of that ownership is quite
another. To acquire Imprescriptibility of registered land, it must
first be registered.
However, in the present case, GRANDE ET AL. failed to register
the contested property. The increment, therefore, never became
registered property, and hence is not entitled or subject to the
protection of imprescriptibility enjoyed by registered property
under the Torrens system. Consequently, it was subject to
acquisition through prescription by third persons.
ZAPATA vs. DIR. OF LANDS
GR No. L-17645. October 50, 1962
The accretion on the land must be made by the natural
current of the river and must not be artificially induced,
so that it may be rightfully claimed by the riparian
owner. When fish traps are set up on the river and cause
accretion, the riparian owner may still claim ownership
over the alluvium provided that said fish traps were not
expressly intended or designed to cause or bring about
the accretion.
FACTS
JULIANA ZAPATA owned 2 parcels of in the province of
Pampanga, adjoining a non-navigable and non-floatable river called
the Candalaga Creek. These 2 lands were registered in her name. In
1915, when the cadastral survey of San Fernando was begun, the
width of the Candalaga Creek adjoining the two parcels of land
owned by Juliana Zapata was about 90 or 100 meters. However,
later, the width was reduced to 15 meters, because soil bad been
accumulated by the water current of the river on the banks of said
2 lots that an additional 3 lots had been added to the property.
In 1956, ZAPATA filed a petition to claim the 3 lots belong to
her by accretion, as provided for in Art. 457 of the Civil Code and
prayed that the same be registered in her name. The DIRECTOR OF
LANDS objected to the petition and prayed that the registration of
the 3 lots in the name of Zapata be denied and that they be
declared to form part of the public domain. The trial court granted
the petition of ZAPATA. Hence, the DIRECTOR OF LANDS appealed.
The DIRECTOR OF LANDS contended that Art. 457 of the Civil Code
should not be applied in the present case because the accretion or
deposit of alluvial soil was not due to the natural effect of the
current of Calandaga Creek but was artificially induced on account
of the erection of the fish traps on the creek, such as salag net, bunuan
(bamboo trap), sabat (cutting of channels) and fencing that the fishermen
bad built in the stream,
ISSUE
Whether or not the alluvial accretion was entirely due to the setting tip
of such fish traps.
RULING
NO. True, those fish traps might have slowed down the current of the
Candalaga Creek and might have brought about or caused the accretion. But
as there was no evidence to show that the setting up or erection of the fish
traps was expressly intended or designed to cause or bring about the
accretion ZAPATA may still invoke the benefit of the provisions of Art. 457 of
the Civil Code to support her claim of title thereto. Moreover, the fishermen
who since 1894 used to set up fish traps in the creek, later on secured permit
from the Government that auctioned off the right or license to set up fish
traps in the creek, and the setting up of such fish traps stopped or was
discontinued even before 1926. Being that the petition to was only 1956,
years after, it all showed that the alluvial accretion was not entirely due to
the setting up of such fish traps.
AGUSTIN vs. IAC
GR No. 66075-76. July 5, 1990
Because of accretion, the land of A was transferred to the land of
B. The alluvium then is owned by B. However, when because of a
sudden change in the course of river, the land was reverted back
to the property of A, B still owned the same.
FACTS
The Cagayan River separates the towns of Solana on the west and
Tuguegarao on the east in the province of Cagayan.
In 1919, the lands east of the Cagayan River were covered by the
Tuguegarao Cadastre. On the left of the River are the towns of Solana. In
1925, EULOGIO AGUSTIN was issued an Original Certificate of Title, covering
the land east of the Cagayan River.
As the years went by, the Cagayan River moved gradually eastward,
depositing silt on the western bank. The shifting of the river and the siltation
continued until 1968. In 1950, all lands west of the river were included in the
Solana Cadastre. Among these occupying lands covered by the Solana
Cadastre were RESPONDENTS MARIA MELAD, TIMOTEO MELAD, PABLO
BINAYUG & GERONIMA UBINA, respondents. Through the years, the Cagayan
River eroded lands of the Tuguerarao Cadastre on its eastern bank among
which was AGUSTIN's lot, depositing the alluvium as accretion on the land
possessed by BINAYUG on the western bank.
However, in 1968, after a big flood, the Cagayan River changed its
course, returned to its 1919 bed, and, in the process, cut across the lands of
RESPONDENTS, whose lands were transferred on the eastern, or Tuguegarao,
side of the river. To cultivate those lots they had to cross the river.
In 1969, while the RESPONDENTS and their tenants were planting corn
an their lots located on the eastern side of the Cagayan River, AGUSTIN,
accompanied by the mayor and some policemen of Tuguegarao, claimed the
same lands as their own and drove away the RESPONDENTS from the
premises.
Hence, RESPONDENTS filed a complaint to recover their lots and their
accretions. The lower court ruled in their favor. Hence, AGUSTIN appealed.
ISSUE
Whether or not the accretion belong to RESPONDENTS.
RULING
YES. The accretion belonged to RESPONDENTS and not AGUSTIN.
Accretion benefits a riparian owner when the following requisites are
present:
(1) that the deposit he gradual and imperceptible;
(2) that it resulted from the effects of the current of the water;
and
(3) that the land where accretion takes place is adjacent to the
bank of a river (Republic vs. CA, 132 SCRA 514).
All these requisites of accretion are present in this case for, as the trial
court found that the Cagayan River did move year by year from 1919 to 1968
or for a period of 49 years. It was gradual and imperceptible. Within this
 period, the alluvium deposited on the other side has become
greater in area than the original lands of AGUSTIN in both cases.
Still the addition in every year is imperceptible in nature, one could
not discern it but can be measured after the lapse of a certain time.
The reason for this principle is because, if lands bordering on
streams are exposed to floods and other damage due to the
destructive force of the waters, and if by virtue of law they are
subject to encumbrances and various kinds of easements, it is only
just that such risks or dangers as may prejudice the owners thereof
should in some way be compensated by the right of accretion.
The RESPONDENTS' ownership of the accretion to their lands
was not lost upon the sudden and abrupt change of the course of
the Cagayan River in 1968 or 1969 when it reverted to its old 1919
bed, and separated or transferred said accretions to the other side
(or eastern bank) of the river. Articles 459 and 463 of the New Civil
Code apply to this situation.
In the case at bar, the sudden change of course of the
Cagayan River as a result of a strong typhoon in 1968 caused a
portion of the lands of the private respondents to be "separated
from the estate by the current." Hence, RESPONDENTS have
retained the ownership of the portion that was transferred by
avulsion to the other side of the river.
VDA. DE NAZARENO vs. CA
GR No. 98054. June 6, 1996
Accretion to be rightfully claimed by the riparian owner
must not me man-made or artificial. When the accretion
was caused by the sawdust dumped on the river, the
riparian owner cannot claim the deposited land because
it already formed part of the public domain.
FACTS
Antonio Nazareno, predecessor-in-interest of petitioners
DESAMPARADO VDA. DE NAZARENO and LETICIA NAZARENO-TAPIA
owned a parcel of land in Cagayan de Oro City. In 1979, he leased
portions of said land to private respondents JOSE SALASALAN and
LEO RABAYA, who built their respective houses therein. In the
latter part of 1982, SALASALAN ET AL. allegedly stopped paying
rentals. As a result, Antonio Nazareno and VDA. DE NAVARENO ET
AL. filed a case for ejectment, which was granted by the court.
Later, despite successive efforts in court by SALASALAN ET AL., the
court finally executed its judgment and they were ejected from the
lots they occupied.
Before he died, Antonio Nazareno caused the approval by the
Bureau of Lands of a survey plan with a view to perfecting his title
over the accretion area being claimed by him. Before the approved
survey plan could be released to the applicant however,
SALASALAN ET AL. protested. Upon order of the District Land
Officer, respondent Land Investigator AVELINO LABIS conducted an
investigation and rendered a report, recommending that the survey
plan in the name of Antonio Nazareno, be cancelled and that
private respondents be directed to file appropriate public land
applications. Based on the said report, respondent Regional
Director of the Bureau of Lands Roberto Hilario ordered the
amendment of the survey plan in the name of Antonio Nazareno by
segregating therefrom the areas occupied by SALASALAN ET AL.
who, if qualified, may file public land applications covering their
respective portions.
Respondent Director of Lands ABELARDO PALAD then ordered
Antonio Nazareno to vacate the portions adjudicated to
SALASALAN ET AL. and to remove whatever improvements they
have introduced thereon. He also ordered that SALASALAN ET AL.
be placed in possession thereof. Upon the denial of the motion for
reconsideration, VDA. DE NAZARENO ET AL., as heirs of late
Antonio Nazareno filed a case to annul the order of PALAD. Their
argument was that the subject land was not a public land but
rather a private land being an accretion to Antonio Nazareno’s
titled property, applying Article 457 of the Civil Code. They added
that the accretion site was the result of the late Antonio Nazareno's
labor consisting in the dumping of boulders, soil and other filling
materials into the Balacanas Creek and Cagayan River bounding his land.
ISSUE
(1) Whether or not the subject land formed part of the property of
NAZARENO through accretion.
(2) Whether or not the property was a public land.
RULING
(1) NO. Accretion, as a mode of acquiring property under Art. 457 of the
Civil Code, requires the concurrence of these requisites:
(1) that the deposition of soil or sediment be gradual and
imperceptible;
(2) that it be the result of the action of the waters of the river
(or sea); and
(3) that the land where accretion takes place is adjacent to the
banks or rivers (or the sea coast).
These are called the rules on alluvium which if present in a case, give to the
owners of lands adjoining the banks of rivers or streams any accretion
gradually received from the effects of the current of waters.
However, in the case at bar, the 2nd and 3rd requisites were absent.
Hence, VDA. DE NAZARENO ET AL., could not claim the rights of a riparian
owner.
The 3rd requisite that the alluvium be the result of the action of the
waters of the river was not met since the subject land was the direct result of
the dumping of sawdust by the Sun Valley Lumber Co. consequent to its
sawmill operations. Even if this Court were to take into consideration
petitioners' submission that the accretion site was the result of the late
Antonio Nazareno's labor consisting in the dumping of boulders, soil and
other filling materials into the Balacanas Creek and Cagayan River bounding
his land, the same would still be part of the public domain.
The 2nd requisite that the deposit of soil or sediment be gradual and
imperceptible was also not met it could not be claimed that the accumulation
of such boulders, soil and other filling materials was gradual and
imperceptible, resulting from the action of the waters or the current of the
Balacanas Creek and the Cagayan River. The word "current' 'Indicates the
participation of the body of water in the ebb and flow of waters due to high
and low tide.
The conclusion of the court, therefore, was that the accretion was man-
made or artificial. The requirement that the deposit should be due to the
effect of the current of the river is indispensable. This excludes from Art. 457
of the Civil Code all deposits caused by human intervention. Putting it
differently, alluvium must be the exclusive work of nature.
(2) YES. The property was a public land, being an artificial accretion of
sawdust.. Hence, it was a proper subject of a public land applications.
The court agreed with SALASALAN ET AL. that VDA. DE NAZARENO ET
AL. were estopped from denying the public character of the subject land, as
well as the jurisdiction of the Bureau of Lands when the late Antonio
Nazareno filed his Miscellaneous Sales Application (MSA). The mere filing of
said Application constituted an admission that the land being applied for was
public land, having been the subject of a survey plan.
HEIRS OF NAVARRO vs. IAC
GR No. 116290. December 8, 2000
Manila Bay is a sea and not a lake. When by the action of Manila Bay, land is
formed, it is not accretion to be owned by the riparian owner under the Civil
Code but is rather converted into foreshore land as a property of public
domain, as deemed under the Spanish Law of Waters of 1866.
In 1946, SINFOROSO PASCUAL filed an applications for foreshore lease
covering a tract of foreshore land in Bataan, having an area of approximately
17 hectares. This application was denied.
Subsequently, EMILIANO NAVARRO, predecessor-in-interest of the
HEIRS OF EMILIANO also filed fishpond application with the Bureau of
Fisheries covering 25 hectares of foreshore also in Bataan. Initially, such
application was denied by the Director of Fisheries on the ground that the
property, formed part of the public domain but upon a motion for
reconsideration, the Director gave due course to his application but only to
the extent of 7 hectares of the property.
In the early part of 1960, PASCUAL filed an application to register and
confirm his title to a parcel of land and said have area an area of 146,611
square meters. PASCUAL claimed that this land is an accretion to his
property. It is bounded on the eastern side by the Talisay River as
well as the Bulacan River flow downstream and meet at the Manila
Bay thereby depositing sand and silt on PASCUAL’s land, thus
claiming accretion as the riparian owner.
NAVARRO thereupon filed an opposition to PASCUAL's
application. NAVARRO claimed that the public domain, it being a
part of the foreshore of Manila Bay; that he was a lessee and in
possession of a part of the subject property by virtue of a fishpond
permit issued by the Bureau of Fisheries and confirmed by the
Office of the President; and that he had already converted the area
covered by the lease into a fishpond.
During the pendency of the land registration case, PASCUAL
filed a complaint for ejectment against Emiliano Navarro, one
Marcelo Lopez and their privies, alleged by Pascual to have
unlawfully claimed and possessed, through stealth, force and
strategy, a portion of the subject property covered by his land.
Because of the similarity of the parties and the subject matter, the
appealed case for ejectment was consolidated with the land
registration case and was jointly tried by the court a quo.
In 1961, during the pendency of the trial of the consolidated
cases, NAVARRO died and was substituted by his HEIRS.
Subsequently, in 1962, PASCUAL died and was substituted by his
HEIRS as well.
During trial, the court found out that the land of PASCUAL
was bounded on the east by the Talisay River, on the west by the
Bulacan River, and on the north the Manila Bay. The Talisay and
Bulacan rivers come from inland flowing downstream towards the
Manila bay. In other words, between the Talisay River and the
Bulacan River is the property of applicants with both rivers acting
as the boundary to said land and the flow of both rivers meeting
and emptying into the Manila Bay. The subject land was formed at
the tip or apex of PASCUAL’s land adding thereto the land now
sought to be registered.
In 1975, the court rendered judgment in favor of the HEIRS OF
PASCUAL, finding the subject property to be foreshore land and,
being a part of the public domain, it cannot be the subject of land
registration proceedings. On appeal, IAC reversed the said decision.
Aggrieved, the HEIRS OF NAVARRO appealed the case. They
contended that they owned the disputed land by accretion under
Art. 457 of the Civil Code as said land was an accretion caused by
the joint action of the Talisay and Bulacan Rivers, which run their
course on the eastern and western boundaries of their land.
ISSUES
(1)Whether or not Manila Bay is a lake.
(2) Whether or not the land was formed by the action of the
Talisay and Bulacan rivers as an accretion of was formed by the
action of the Manila Bay as a foreshore land.
RULING
(1) NO. It is a sea. It should not be compared with Laguna de
Bay, which is a lake. A Bay is an opening into the land where the
water is shut in on all sides except at the entrance; an inlet of the
sea; an arm of the sea, distinct from a river, a bending or curbing of
the shore of the sea or of a lake.
The disputed land, thus, is an accretion not on a river bank but
on a sea bank, or on what used to be the foreshore of Manila Bay
which adjoined petitioners own tract of land on the northern side.
As such, the applicable law is not Article 457 of the Civil Code but
Article 4 of the Spanish Law of Waters of 1866, which states that:
“Lands added to the shores by accretions and
alluvial deposits caused by the action of the sea, from
part of the public domain. When they are no longer
washed by the waters of the sea and are not necessary
for the coast guard service, the Government shall
declare them to be the property of the owners of the
estates adjacent thereto and as increment thereof."
(2) The land was not formed by the action of the Talisay
and Bulacan rivers. It was formed by the action of Manila Bay,
hence, it was a foreshore land, which belonged to the public
domain.
Accretion is the process whereby the soil is deposited, while
alluvium is the soil deposited on the estate fronting the river bank.
The owner of such estate is called the riparian owner. Riparian
owners, the latter being owners of lands bordering the shore of the sea or
lake or other tidal. The alluvium, by mandate of Article 457 of the Civil Code,
is automatically owned by the riparian owner from the moment the soil
deposit can be seen but is not automatically registered property, hence,
subject to acquisition through prescription by third persons.
Accretion as a mode of acquiring property under said Article 457
requires the concurrence of the following requisites:
(1) that the accumulation of soil or sediment be gradual and
imperceptible;
(2) that it be the result of the action of the waters of the river;
and
(3) that the land where the accretion takes place is adjacent to
the bank of the river.
In the present case, the 2nd and 3rd requisites were absent. The 2nd
requisite was absent because if the accretion were to be attributed to the
action of either or both of the Talisay and Bulacan Rivers, the alluvium should
have been deposited on either or both of the eastern and western
boundaries of petitioners own tract of land, not on the northern portion
thereof which is adjacent to the Manila Bay. Clearly lacking, thus, is the third
requisite of accretion, which is, that the alluvium is deposited on the portion
of claimant's lot, which is adjacent to the river bank.
BAGAIPO vs. CA
GR No. 116290. December 8, 2000
The decrease in petitioner’s land area and the corresponding
expansion of respondent’s property were the combined effect of
erosion and accretion respectively. Art. 457 and not Art. 461 of the
Civil Code then is applicable.
Registration does not protect the riparian owner against the
diminution of the area of his land through gradual changes in the
course of the adjoining stream.
FACTS
Petitioner DIONISIA P. BAGAIPO was the registered owner of Lot No.
415, an agricultural land situated in Ma-a, Davao City. It was bounded on the
southeast by the Davao River. Respondent LEONOR LOZANO on the other
hand, was the owner of a registered parcel of land located across and
opposite the southeast portion of petitioner’s lot facing the Davao River.
LOZANO acquired and occupied her property in 1962 when his wife inherited
the land from her father who died that year.
In 1989, BAGAIPO a complaint for Recovery of Possession against
Lozano for the recovery of a land area , which BAGAIPO lost when the Davao
River traversed her property. BAGAIPO contended that as a result of a
change in course of the said river, her property became divided into three
lots. Later, BAGAIPO commissioned a survey of Lot 415 and it was showed
therein that her land was taken up by the new course of the Davao River and
was then illegally occupied by LOZANO. She presented a witness who
testified that the change of the course of the Davao River was caused by a big
flood in 1968 and that the river which flowed previously in front of a chapel
located 15 meters away from the riverbank within Bagaipo’s property now
flowed behind it.
For his part, LOZANO insisted that the land claimed by BAGAIPO was
actually an accretion to their titled property. He asserted that the Davao
River did not change its course and that the reduction in BAGAIPO’s domain
was caused by gradual erosion due to the current of the Davao River. He
added that it was also because of the river’s natural action that silt slowly
deposited and added to his land over a long period of time. He presented 3
witnesses, all who concurred that each time there was flood, there was
erosion that occurred on the property of BAGAIPO, which carried away the
soil therein.
In 1991, after the trial court conducted an ocular inspection, it
dismissed the complaint. It concluded that the applicable law was not Art.
461 but rather Art. 457, which states that 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.
Hence, this appeal by BAGAIPO.
ISSUE
(1) Whether or not the decrease in land area was brought about by
erosion and not a change in the river’s course.
(2) Whether or not Art. 453 and not Art. 461 should be applied.
 (3) Whether or not the registration of BAGAIPO over the
accretion to the land by a Torrens certificate of title precluded
LOZANO from being the owner thereof.
RULING
(1) The trial court and the appellate court both found that the
decrease in land area was brought about by erosion and not a
change in the river’s course. This conclusion was reached after the
trial judge observed during ocular inspection that the banks located
on petitioner’s land are sharp, craggy and very much higher than
the land on the other side of the river. Additionally, the riverbank
on respondent’s side is lower and gently sloping. The lower land
therefore naturally received the alluvial soil carried by the river
current.
(2) The decrease in petitioner’s land area and the
corresponding expansion of respondent’s property were the
combined effect of erosion and accretion respectively. Art. 461 of
the Civil Code then is inapplicable. Petitioner could not claim
ownership over the old abandoned riverbed because the same was
inexistent. The riverbed’s former location could not even be
pinpointed with particularity since the movement of the Davao
River took place gradually over an unspecified period of time, up to
the present.
The rule is well-settled that accretion benefits a riparian
owner when the following requisites are present:
1) That the deposit be gradual and
imperceptible;
2) That it resulted from the effects of the
current of the water; and
3) That the land where accretion takes place is
adjacent to the bank of the river.
These requisites were sufficiently proven in favor of
respondents. In the absence of evidence that the change in the
course of the river was sudden or that it occurred through avulsion,
the presumption is that the change was gradual and was caused by
alluvium and erosion.
(3)The fact that the accretion to his land used to pertain to
plaintiff’s estate, which is covered by a Torrens certificate of title,
cannot preclude him (defendant) from being the owner thereof.
Registration does not protect the riparian owner against the
diminution of the area of his land through gradual changes in the
course of the adjoining stream. Accretions which the banks of rivers
may gradually receive from the effect of the current become the
property of the owners of the banks. Such accretions are natural
incidents to land bordering on running streams and the provisions
of the Civil Code in that respect are not affected by the Land
Registration Act.
ARTICLE 458: The owners of the estates adjoining ponds or lagoons
do not require the land left dry by the natural decrease of the
waters, or lose that inundated by them in extraordinary floods.
The owners of the lands adjoining ponds and lagoons do not
acquire the lands left dry by the natural decrease of the water.
ARTICLE 459: Whenever the current of a river, creek, or torrent,
segregates from an estate on its banks known portion of land and
transfers it to another estate, the owner of the land to which the
segregated portion belonged retains the ownership of it provided
that he removes the same within 2 years.
 This is AVUSION. It is the process whereby the current of
a river, creek, or torrent segregates from an estate on its
bank a known portion of land and transfers it to another
state.
 avulsion is also referred as ‘delayed accession’
DISTINCTIONS BETWEEN ALLUVIUM AND AVULSION
1. Alluvium is a piece of land created by accretion under
457. The deposit of soil is gradual; in avulsion, it is a
sudden or abrupt process.
2. In the former, the soil cannot be identified whereas in the latter,
the portion that is segregated is identifiable or verifiable.
3. Alluvium belongs to the owner to which it was attached but
avulsion belongs to the owner from whom the property was
detached
ARTICLE 460: Trees uprooted and carried away by the current of the
waters belong to the owner of the land upon which they may be
cast, if the owners do not claim them within 6 months. If such
owners claim them, they shall pay the expenses incurred in
gathering them or putting them in a safe place
ARTICLE 461: River beds which are abandoned thru the natural
change in the course of the waters ipso facto belong to the owners
whose lands are occupied by the new course in proportion to the
area lost. However, the owners of the lands adjoining the old bed
shall have the right to acquire the same by paying the value
thereof, which vale shall not exceed the value of the area occupied.
GENERAL RULE: The abandoned river beds ipso facto belong to the owners
whose land are occupied by the new course in proportion of the area lost.
But the owners of the land adjoining the old bed shall have the right to
acquire the same by paying the value thereof.
REQUISITES:
1. the change must be sudden, not gradual;
2. the changing of the course must be more or less permanent and
not temporary over flooding of another’s land;
3. the change of the river bed must be natural one and not by
artificial means;
4. there must be a definite abandonment by the government. No
effort has been made to bring back the river to its old bed;
5. the river must continue to exist.
 If the river dries up, then it belongs to the public domain. It has no
effect on the private lands.
 Art. 58 of PD 1067 states that when the river or stream suddenly
changes its course to private lands, the owners of the affected
lands:
1. may not compel the government to restore
the river to its former bed;
2. they cannot restrain the gov’t. from taking
steps to revert the river or stream to its
former course; So, the owners have no right
as to the acts or omission by the government.
3. they are not entitled to compensation for any
damage sustained thereby.
 The owners of the affected lands may undertake to return the
stream or river to its bed at their own expense, provided:
1. a permit is secured from the DOH and DOTC;
2. work commence within 2 yrs from the change of the
course of the river or stream.
ARTICLE 462: Whenever a river, changing its course by natural
causes, opens a new bed thru a private estate, this bed shall
become of public dominion.
ARTICLE 463: Whenever the current of a river divides itself into
branches, leaving a piece of land or part thereof isolated, the owner
if the land retains his ownership. He also retains it if a portion of
land is separated from the estate by the current.
This refers to the ‘formation of island by the branching off a
river’ as distinguished from the ‘formation of islands by successive
accumulation of alluvial deposits (unidentifiable sediments) referred
to in Arts. 464 and 465. In the first, no accession takes place, the
owner retaining his ownership of the segregated portion; in second,
accession takes place.
ARTICLE 464: Islands which may be formed on the seas within the
jurisdiction of the Philippines, on lakes, and of navigable or
floatable rivers belong to the State.
ARTICLE 465: Islands which thru 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 owner 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 this formed be more distant from one margin than
from the other, the owner of the nearer margin shall be the sole
owner thereof.
 Who owns the island formed by unidentifiable
accumulated deposits? It depends.
i. if formed on the sea – Within the territorial
waters or maritime zone or jurisdiction of the
Philippines – State (464 – Patrimonial
property)
ii. If formed on lakes, or navigable or floatable
rivers – the State.
iii. If formed in non-navigable or non-floatable
rivers –
1. If NEARER margin to one bank,
owner of nearer margin is the sole
owner;
2. If EQUIDISTANT, the island shall be
divided longitudinally in halves, each
bank getting half.
NAVIGABLE OR FLOATABLE RIVER – if useful for floatage and
commerce, whether the tides affect the water or not should
benefit trade and commerce.
SECTION 3: RIGHT OF ACCESSION WITH RESPECT TO MOVABLE
PROPERTY
ARTICLE 466: Whenever two movable things belonging to different
owners are, without bad faith, united in such a way that they form
a single object, the owner of the principal thing acquires the
accessory, indemnifying the former owner thereof for its value.
3 TYPES OF ACCESSION WITH RESPECT TO MOVABLE
PROPERTY:
a.) adjunction
b.) mixture
c.) specification
ADJUNCTION – a process by virtue of which two movable things
belonging to different owners are untied in such a way that they
form a single object. It is also called conjunction. It may be done in
good faith or bad faith.
KINDS:
(a) inclusion
(b) soldering
(c) escritura
(d) Pintura
(e) weaving
ARTICLE 467: The principal thing, as between to things
incorporated, is deemed to be that to which the other has been
united as an ornament, or for its use or perfection.
ARTICLE 468: If it cannot be determined by the rule given in the
preceding article which of the two things incorporated is the
principal one, the thing of the greater value shall be considered, and
as between two things of equal value, that of the greater volume.
 In painting and sculpture, writings, printed matter,
engraving and lithographs, the board, metal, stone,
canvas, paper or parchment, shall be deemed the
accessory thing.
 The principal is: (order of preference)
a. that to which the other has been united as an
ornament, or for its use, or perfection;
b. that of greater volume;
c. that of greater value;
d. that which has greater merits.
ARTICLE 469: Whenever the things united can be separated without
the injury, their respective owners may demand their separation.
Nevertheless, in case the thing united for the use,
embellishment or perfection of the other, is much more precious
than the principal thing, the owner of the former may demand its
separation, even though the thing to which it has been incorporated
may suffer some injury.
In a separation without injury (1st par) there is no real accession
here. It is understood that the 1st paragraph can apply only to soldering and
inclusion because all the rest, separation would result in substantial injury.
In the 2nd par, there is separation, although with injury (but not
destruction) is allowed, if the thing united for the use, embellishment, or
perfection of the other is much more precious than the principal.
ARTICLE 470: Whenever the owner of the accessory thing has made
the incorporation in bad faith, he shall lose the thing incorporated
and shall have the obligation to indemnify the owner of the
principal thing for the damages he may have suffered.
If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall have a right
to choose between the former paying him its value or that the thing
belonging to him by separated, even though for this purpose it be
necessary to destroy the principal thing, and on both cases,
furthermore, there shall be indemnity for damages.
If either one of the owners has made the incorporation with the
knowledge and without the objection of the other, their respective
rights shall be determined as though both acted in good faith.
RULES IN CASE OF BAD FAITH IN THE ADJUNCTION
Owner of Accessory is in bad faith
If I in bad faith, will use the varnish on the chair of my brother, I
lose all rights to the varnish. Moreover, I will be responsible for
damages.
Owner of the principal in bad faith
If I, in bad faith, will use my brother’s lead in soldering my pipes,
my brother has the right to ask for payment of the lead plus damages;
or he may choose to have the lead removed from the pipes even if the
pipes be destroyed plus damages.
ARTICLE 471: Whenever the owner of the material employed
without his consent has a right to an indemnity, he may demand
that this consist in the delivery of a thing equal in kind and value,
and in all other respects, to that employed, or else in the price
thereof, according to expert appraisal.
 Indemnity – how paid?
 Either by:
a) delivery of a thing equal in kind and value (quantity,
(quality);
b) or payment of price a appraised by experts. This rule is
applicable only when the consent of the owner had not been
obtained. The material may have been the principal or
accessory.
ARTICLE 472: If by the will of the owners two things of the same or
different kinds are mixed, or if the mixture occurs by chance, and in
the latter case things are not separable without the injury, each
owner shall acquire a right proportional to the part belonging to
him, bearing in mind the value of the things mixed or confused.
ARTICLE 473: If by the will of only one owner, but in good faith, two
things of the same or different kinds are mixed or confused, the
rights of the owners shall be determined by the provisions of the
preceding article.
If the one who caused the mixture or confusion acted in
bad faith, he shall lose the thing belonging to him thus mixed or
confused, besides being obliged to pay indemnity for the damages
caused to the owner of the other thing with which his own was
mixed.
 MIXTURE - combination or union of materials where the
respective identities of the component elements are
lost. (As distinguished from adjunction, there is in
mixture greater inter-penetration or decomposition of
the objects that have been mixed.
2 KINDS OF MIXTURE:
1. COMMIXTION (if solids are mixed)
2. CONFUSION (if liquids are mixed)
RULES OF MIXTURE:
 If the mixture is caused by one owner in good faith, or
by the will of both owners, or by chance (accident), or
by a common agent, then CO-OWNERSHIP results, each
owner acquiring an interest or right proportional to the
value of his material
i) if the mixture is made by the owner in bad faith,
then --
1. he loses his material
2. and is liable for damages to
penalize his bad faith.
ii) When the things mixed or confused are of exactly
the same kind, quantity and quality, all that is
needed would be to divide the mixture into equal
parts.
SANTOS vs. BERNABE
GR No. 31163. November 6, 1929
When the palays of 2 different owners were mixed up
and it could not be determined as to who owns which.
The owners shall be paid not for the entire palay but
only a right proportional to the part belonging to him.
FACTS
In 1928, plaintiff URBANO SANTOS deposited in defendant
JOSE BERNABE’s warehouse 778 cavans and 38 kilos of palay. On
the same day, co-defendant PABLO TIONGSON also deposited
1,026 cavans and 9 kilos of the same grain.
Later, TIONGSON filed in court a complaint in against
BERNABE, to recover from the latter the 1,026 cavans and 9 kilos of
palay he deposited in the latter’s warehouse. At the same time, the
court granted him a writ of attachment. At the time of the
attachment, the sheriff only found only 924 cavans and 311 kilos of
palay in said warehouse. SANTOS intervened in the attachment of
the palay but the sheriff proceeded with the attachment upon filing
of the proper bond by TIONGSON. The attached property was sold
at public auction and the proceeds from it were delivered to
TIONGSON.
SANTOS then filed an action in court. He contended that
TIONGSON could not claim the 924 cavans and 31 ½ kilos of palay
attached by the sheriff as part of those were deposited by him.
The court ordered TIONGSON to pay SANTOS the value of the
778 cavans and 38 kilos of palay, at the rate of P3 per cavan. Hence,
TIONGSON and the PROVINCIAL SHERIFF appealed.
ISSUE
Whether or not TIONGSON should refund the value of
SANTOS’ 778 cavans and 38 kilos of palay.
RULING
NO. SANTOS should not be paid for the entire palay he
deposited but only a right proportional to the part belonging to
him.
The palay of SANTOS and TIONGSON were mixed up when
they both deposited their palays in BERNABE’s warehouse. It was
because the palays did not bear any marks or signs, nor were they
separated one from the other. At the time of the attachment and
the sheriff only found 924 cavans and 311 kilos of palay in
BERNABE’s warehouse.
There being no means of separating from said 924 cavans and
31 1/2 kilos of palay those belonging to SANTOS and those to
TIONGSON, Art. 472 (then Art. 381) of the Civil Code shall apply.
Being that the number of kilos in a cavan was not determined, each of the
owner then, SANTOS and TIONGSON shall acquire a right proportional to the
part belonging to each.
Hence, 924 cavans of palay were attached and sold. SANTOS, who deposited
778 cavans, shall have the right over 398.49 thereof or the value thereof at
the rate of P3 per cavan. TIONGSON, who deposited 1,026 cavans, shall have
the right over 525.51, or the value thereof at the rate of P3 per cavan.
ARTICLE 474: One who in good faith employs the material of
another in whole or in part in order to make a thing if a different
kind, shall appropriate the thing thus transformed as his own,
indemnifying the owner of the material for its value.
If the material is more precious than the transformed
thing or is more value, its owner may, at his option, appropriate the
new thing to himself. After first paying indemnity for the value of
the work, or demand indemnity for the material.
If in making of the thing bad faith intervened, the owner
of the material shall have the right to appropriate the work to
himself without paying anything to the maker, or to demand of the
latter that he indemnify him for value of the material and the
damages he nay have suffered. However, the owner of the material
cannot appropriate the work in case of the value of the latter, for
artistic or scientific reasons are considerably more than that of the
material.
SPECIFICATION - the giving of a new form to another’s material thru the
application of labor. The material undergoes a transformation or change of
identity.
RULE IN CASE THE OWNER AND WORKER ARE IN GOOD FAITH:
a. appropriation on the part of the owner of the work;
b. reimbursement of the materials employed by the
worker.
RULE IN CASE WORKER IS IN BAD FAITH:
1. appropriate the work without paying for labor;
2. demand payment for the material used plus damages.
EXCEPTION: The thing shall be used for scientific purposes.
ADJUNCTION MIXTURE SPECIFICATION
1. involves at least 2 1. involves at least 2 1. may involve only
things; things 1 thing (may be
more) but form is
changed
2. As a rule, 2. As a rule, co- 2. As a rule,
accessory follows ownership results accessory follows
the principal the principal
3. The things joined 3. The things mixed 3. The new object
retain their nature or confused may retains or preserves
either retain or lose the nature of the
their respective original object.
nature.
AGUIRRE vs. PHENG
GR No. l-20851. September 3, 1966
Although ordinarily, an owner of a property would be entitled to
any accession thereto, the rule is different where the works or
improvements or the accession was made on the property by one
who acted in good faith. The governing provision is Art. 474.
FACTS
In 1954, Vicente and Aldaba sold to petitioner JESUS AGUIRRE a circular
bolted steel tank with a capacity of 5,000 gallons, for the sum of P900.00.
AGUIRRE, however, failed to take physical possession of the tank, having
been prevented from doing so by the municipal authorities of Los Baños,
Laguna (where the tank was located), in view of the claim of ownership being
made by the Bureau of Public Highways.
However, 6 months after the tank was sold to AGUIRRE, Vicente and
Teresa Aldaba again sold the same tank on to Zosimo Gabriel, for P900.00.
Gabriel, in turn, sold it to the LEONORA & COMPANY on for P2,500.00. After
some alterations and improvements made on the tank, Leonora &
Company was able to sell the tank to National Shipyard & Steel
Corporation (NASSCO), for P14,500.00.
AGUIRRE immediately filed with NASSCO a formal notice of his
claim of ownership of the tank. As a consequence, NASSCO’s
payment of the purchase price to LEONORA & COMPANY was
suspended.
Then, AGUIRRE instituted a civil case against VICENTE PHENG,
in his capacity as General Manager of LEONORA & COMPANY and
the ALDABAS, for delivery to him of the tank, with damages.
On the other hand, because of the suspension of payment of
the purchase price, LEONORA & COMPANY filed a civil case against
NASSCO, praying for the delivery of the purchase price of
P14,500.00, or the reimbursement of the sum of P12,229.00
allegedly representing the actual investment and expenses made
and incurred to put the tank in usable condition. AGUIRRE
intervened in said proceeding.
These two cases were jointly heard by the trial court. The
court then declared AGUIRRE as the absolute owner of the tank
and that the subsequent sales were declared null and void and of
no effect.
Aldaba and Leonora and Co. and the National Shipyards and
Steel Corporation were ordered:
1. to deliver AGUIRRE the tank wherein the latter
would have to pay Leonora and Co. P11,299.00 which it
spent for the improvement of the tank.
2. in case that delivery is impossible, to pay AGUIRRE
P900, the original purchase price of the tank, or
From this decision, AGUIRRE appealed to the Court of
Appeals, which affirmed the same. Hence, this appeal. AGUIRRE
alleged that he should not only be paid P900 but P14,500, which
was the value of the tank at the time of its delivery to NASSCO. He
also contended that under Art. 440 of the Civil Code, his ownership
of the property entitled him to everything that is produced thereby,
or is incorporated or attached thereto, either naturally or
artificially.
ISSUE
(1) Whether or not AQUIRRE, as owner of the tank, would be
entitled to any accession thereto.
(2) Whether the value for indemnifying AGUIRRE should be
P900, which was its original value or P14,500, which was its present
value then.
RULING
(1) NO. Although ordinarily, an owner of a property would be
entitled to any accession thereto, the rule is different where the
works or improvements or the accession was made on the property
by one who acted in good faith. And it is not contended that the
making of the improvements and incurring of expenses amounting
to P11,299.00 by Leonora & Company was done in bad faith. The
governing provision is Art. 474 (then Art. 466) of the Civil Code.
(2) The reimbursement should be P900, the original value of
the tank when it was bought by AGUIRRE.
It was clear that there was an accession by specification:
LEONORA AND COMPANY, as purchaser acting in good faith,
spending P11,299.00 for the reconditioning of the tank which was
later adjudged to belong to AGUIRRE.
Furthermore, to uphold AGUIRRE's contention that he was
entitled to the sum of P14,500 for the price of the tank in its
present condition, would be to allow him to enrich himself at the
expense of another. The lower courts, therefore, acted correctly in
ordering the reimbursement to LEONORA & COMPANY for the
expenses it made on the tank.
ARTICLE 475: In the preceding articles, sentimental value shall be
duly appreciated.
QUIETING OF TITLE
ARTICLE 476: Whenever there is a cloud on title to real property or
any interest therein, by reason of any instrument, record, claim,
encumbrance or proceeding which is apparently valid or effective
but is in truth and in fact invalid, ineffective, voidable,
unenforceable, and may be prejudicial to said title, an action may
be brought to remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud from
being cast upon title to real property or any interest therein.
WHEN IS THERE A CLOUD IN THE TITLE?
1) There is an instrument (deed or contract) or record or claim or
encumbrance or proceeding;
2) Which is APPARENTLY valid or effective;
3) But in truth and in fact, invalid, ineffective, voidable, or unenforceable,
or extinguished or barred by extinctive prescription;
4) And may be prejudicial to the title.
 What would be the test? If proof is essential, the cloud exists. If
proof is not needed, cloud is not present.
 The rule merely refers to immovable or real property or any
interest therein. But by analogy, the principle may also apply to
personal property particularly the vessels which partake the
nature of real property.
Nature of the action:
a) This is an action in personam because it is directed against the
defeated party or privies.
b) It may also be considered “quasi in rem” since it involves interest
in a real property.
c) An action to quiet title against a co-owner is not res judicata as to
the other co-owners if they were not made parties thereto
WHEN DOES THE ACTION TO QUIET THE TITLE PRESCRIBE?
a. If the plaintiff is in POSSESSION of the property, the
action does not prescribe. He may wait until his
possession is disturbed or his title is attacked before
taking steps to vindicate his right.
b. If the plaintiff is not in possession of the property, the
action may prescribe. Moreover, if the action is
brought within the period of limitation, it may be
barred by laches where there is no excuse offered for
the failure to assert the title sooner. If somebody else
has possession, the period of prescription for the
recovery of land is either 10 yrs (GF) or 30 yrs (BF). But
as a GENERAL RULE, it is settled that the action to quiet
title does not prescribe.
SECUYA vs. VDA. DE SELMA
GR No. 136021. February 22, 2000
In an action to quiet title, the plaintiffs or complainants must
demonstrate a legal or an equitable title to, or an interest in, the
subject real property. Likewise, they must show that the deed,
claim, encumbrance or proceeding that purportedly casts a cloud
on their title is in fact invalid or inoperative despite its prima facie
appearance of validity or legal efficacy. If the title is not valid on
its face, an action for quieting of title cannot be given due course.
FACTS
A parcel of land was originally sold, and the covering patent issued, to
Maxima Caballero Vda. de Cariño. During her lifetime, she entered into an
Agreement of Partition with Paciencia Sabellona, whereby the former bound
herself and parted 1/3 portion of said lot in favor of the latter.
Sabellona took possession and occupation of that 1/3 portion of said lot
adjudicated to her. In 1953, Sabellona sold 3,0000 sq. m. portion thereof to
Dalmacio Secuya for P1,850 by means of a private document which was lost.
Such sale was admitted and confirmed by Ramon Sabellona, only heir of
Paciencia Sabellona in a Deed of Confirmation of Sale.
In 1972, defendant-respondent GERARDA SELMA bought a parcel of
land, which embraced the 3,000 sq. m. portion of land possessed by the
SECUYAS. SELMA lodged a complaint against the SECUYAS, asserting
ownership over the land inherited by plaintiffs-petitioners from Dalmacio
Secuya of which they had long been in possession in concept of owner.
SECUYA claimed that she was the registered owner of said lot having bough it
from one Cesaria Caballero and had been in possession of the same
since then.
An action for quieting of title was filed by the SECUYAS against
VDA. DE SELMA. They anchored their claim of ownership on two
documents: the Agreement of Partition executed by Maxima
Caballero and Paciencia Sabellona and the Deed of Confirmation of
Sale executed by Ramon Sabellona.
The appellate court debunked the SECUYAS' claim of
ownership of the land, affirming the trial court's ruling, and upheld
VDA. DE SELMA’s title thereto, since the latter's title can be traced
to a valid TCT.
Hence, this appeal by the HEIRS OF SECUYAS.
ISSUE
Whether or not the HEIRS OF SECUYAS had the requisite title
to pursue an action for quieting of title.
RULING
NO. Under Art. 476, in an action to quiet title, the plaintiffs or
complainants must demonstrate a legal or an equitable title to, or
an interest in, the subject real property. Likewise, they must show
that the deed, claim, encumbrance or proceeding that purportedly
casts a cloud on their title is in fact invalid or inoperative despite its
prima facie appearance of validity or legal efficacy.
The HEIRS OF SECUYA insisted that they had been occupying
the disputed property for 47 years before they filed their Complaint
for quieting of title. However, there was no proof that they had
exercised their rights and duties as owners of the same. They argue
that they had been gathering the fruits of such property; yet, it
would seem that they had been remiss in their duty to pay land
taxes. If petitioners really believed that they owned the property,
they should have been more vigilant in protecting their rights
thereto. As noted earlier, they did nothing to enforce whatever
proprietary rights they had over the disputed parcel of land.
The HEIRS OF SECUYA relied their ownership on the
Agreement of Partition executed by Maxima Caballero and
Paciencia Sabellona and the Deed of Confirmation of Sale executed
by Ramon Sabellona.
The Agreement of Partition was a mere Express Trust was
because there was no property to partition and the parties were
not co-owners. Being that there was a repudiation of the express
trust when the heirs of Maxima Caballero failed to deliver or
transfer the property to Paciencia Sabellona, and instead sold the
same to a third person not privy to the Agreement., all, the
subsequent sales transactions involving the land in dispute and the
titles covering it must be upheld, in the absence of proof that the
said transactions were fraudulent and irregular.
Although there was a Deed of Confirmation of Sale executed
by Ramona Sabellona, there was an absence of the Deed of Sale
itself. Moreover, the lot, including the disputed portion, had been
the subject of several sales transactions. The title thereto had been
transferred several times, without any protestation or complaint
from the HEIRS OF SECUYA.
In any case, VDA. DE SECUYA’s title was amply supported by
clear evidence, while SECUYA's claim was barren of proof.
METROPOLITAN BANK & TRUST COMPANY vs. ALEJO
GR No. 141970 . September 10, 2001
What was asked by Metrobank was for relief from the
peremptory declaration of nullity of the TCT covering the
mortgaged land, which had been issued without first
giving METROPOLITAN BANK an opportunity to be
heard. Filing an action for quieting of title will not
remedy what it perceived as a disregard of due process;
it is therefore not an appropriate remedy.
FACTS
In 1995 and 1996, Spouses Raul and Cristina Acampado
obtained loans from METROPOLITAN BANK, & TRUST COMPANY in
the amounts of P5,000,000 and P2,000,000, respectively. As
security for the payment of these credit accommodations, the
Acampados executed in favor of METROPOLITAN BANK, a real
estate mortgage over a registered parcel of land in Valenzuela City.
Later, a Complaint for Declaration of Nullity of the TCT of said lot was
filed by Respondent SY TAN SE against Spouses Acampado. Despite being the
registered mortgagee of the real property covered by the title sought to be
annulled, METROPOLITAN BANK was not made a party thereto nor was it
notified of the pending case.
Because the spouses defaulted in the payment of their loan,
extrajudicial foreclosure proceedings over the mortgaged property were
initiated in 1997. During the public auction, METROPOLITAN BANK was the
highest bidder. A Certificate of Sale was issued in its favor.
When the redemption period lapsed exactly a year after,
METROPOLITAN BANK executed an Affidavit of Consolidation of Ownership
for the issuance of a new TCT in its name. However, the Register of Deeds
informed of the existence of the civil case filed by Respondent SY TAN SE
against Spouses Acampado, where the RTC declared that the TCT of the
Spouses Acampado were null and void since it was proceeded from an
illegitimate source.
METROPOLITAN BANK then filed a petition for the annulment of the RC
decision with the Court of Appeals. The same was however denied because
there were other different remedies available but they were not resorted to
by petitioner. It ruled that petitioner ought to have filed, instead, a petition
for relief from judgment or an action for quieting of title.
Hence, this petition by METROPOLITAN BANK.
ISSUE
Whether or not METROPOLITAN BANK should have instead filed an
action for quieting of title.
RULING
NO. An action for quieting of title was not an appropriate remedy.
It should be stressed that this case was instituted to ask for relief from
the peremptory declaration of nullity of the TCT covering the mortagged
land, which had been issued without first giving METROPOLITAN BANK an
opportunity to be heard. METROPOLITAN BANK focused on the judgment in
the civil case between Respondent SY TAN SE against Spouses Acampado
which adversely affected it, and which it therefore sought to annul. Filing an
action for quieting of title will not remedy what it perceived as a disregard of
due process; it is therefore not an appropriate remedy.
Equally important, an action for quieting of title is filed only when there
is a cloud on title to real property or any interest therein. As defined, a "cloud
on title is a semblance of title which appears in some legal form but which is
in fact unfounded." In this case, the subject judgment cannot be considered
as a cloud on petitioner’s title or interest over the real property covered
bysaid TCT, which does not even have a semblance of being a title.
It would not be proper to consider the subject judgment as a cloud that
would warrant the filing of an action for quieting of title, because to do so
would require the court hearing the action to modify or interfere with the
judgment or order of another co-equal court. Well-entrenched in our
jurisdiction is the doctrine that a court has no power to do so, as that action
may lead to confusion and seriously hinder the administration of justice.
Clearly, an action for quieting of title is not an appropriate remedy in this
case.
ARTICLE 477: The plaintiff must have legal or equitable title to, or
interest in the real property which is the subject-matter of the
action. He need not be in possession of said property.
ARTICLE 478: There may also be an action to quiet title or remove a
cloud therefrom when the contract, instrument or other obligation
has been extinguished or has terminated, or has been barred by
extinctive prescription.
 There are 2 INSTANCES where the action may be used:
a) when the contract etc has ended;
b) when the action is barred by extinctive prescription.
ARTICLE 479: The plaintiff must return to the defendant all benefits
he may have received from the latter, or reimburse him for
expenses that may have redounded to the plaintiff’s benefit.
ARTICLE 480: The principles of the general law on the quieting of
title are hereby adopted insofar as they are not in conflict with this
Code.

ARTICLE 481: The procedure for the quieting of title or the removal
of a cloud therefrom shall be governed by such rules of court as the
Supreme Court shall promulgate.
ARTICLE 482: If a building, wall, column, or any other construction
is in danger of falling, the owner shall be obliged to demolish it or to
execute the necessary work in order to prevent it from falling.
If the proprietor does not comply with the obligation, the
administrative authorities may order the demolition of the structure
at the expense of the owner, or take measures to insure public
safety.
ARTICLE 483: Whenever a large tree threatens to fall in such a way
as to cause damage to the land or tenement of another or to
travellers over public or private road, the owner of the tree shall be
obliged to fell and remove it; and should he not do so, it shall be
done at his expense by order of the administrative authorities.
SAPTO vs. FABIANA
GR No. L-11285. May 16, 1958
The court will treat an action for reconveyance as an
action to quiet title provided that it has all the requisites
of the latter.
Actions to quiet title to property in the possession of the
plaintiff are imprescriptible. But if he is not in possession
thereof, the right may as well prescribe and barred by
acquisitive prescription.
FACTS
Vicente Sapto was the registered owner of a parcel of land
located in Toril, Davao. When he died, he left his children Samuel,
Constancio, and Ramon as heirs of the property in question. Ramon
pre-deceased his two brothers, leaving no other heirs. In 1931,
Samuel and Constancio Sapto executed a Deed of Sale of a portion
of 4 hectares of the said land in favor of defendant APOLONIO
FABIANA, in consideration of the amount of P245.00. The sale was
duly approved by the Provincial Governor of Davao, but was never
registered. Possession of the land conveyed was however,
transferred to FABIANA, who had been in the possession thereof
from 1931 up to the present.
Thereafter, Constancio Sapto died without any issue. When
Samuel Sapto died, he was survived by his wife DORA BAGOBA and
two children, LAUREANA and VICENTE SAPTO. In 1954, DORA
BAGOBA and LAUREANA and VICENTE SAPTO, filed an action in
court for the recovery of the parcel of land sold by their
predecessors to FABIANA in 1931.
After trial, the lower court held that although the sale
between Samuel and Constancio Sapto and defendant in 1931 was
never registered, it was valid and binding upon the parties and the
vendors' heirs. It also ordered the plaintiffs to execute the
necessary deed of conveyance in defendant's favor and its
annotation in the certificate of title.
From this judgment, DORA BAGOBA and LAUREANA and
VICENTE SAPTO appealed. They cited several cases wherein the
court has held that under the martens system, registration is the
operative act that gives validity to the transfer or creates a lien
upon the land. The also averred that it was error to require them to
execute a deed of conveyance in favor of FABIANA since the latter's
action to obtain it had long prescribed, 20 years having elapsed
since the original sale.
ISSUE
(1) Whether or not registration is the operative act that gives
validity to the transfer or creates a lien upon the land.
(2) Whether or not the right of FABIANA to obtain a deed of
conveyance has already prescribed since 20 years had already
elapsed since the original sale.
RULING
(1) NO. No enforcement of the contract was in fact needed, since the
delivery of possession of the land sold had consummated the sale and
transferred title to the purchaser, registration of the contract not being
indispensable as between the parties. Actually the action for reconveyance
was one to quiet title, i.e., to remove the cloud cast upon appellee's
ownership by the refusal of the appellants to recognize the sale made by
their predecessors. This action accrued only when appellants initiated their
suit to recover the land in 1954.
In this case, the sale entered into was valid and binding upon the
vendors, one of whom was Samuel Sapto and is equally binding and effective
against his heirs, DORA BAGOBA and LAUREANA and VICENTE SAPTO. To hold
otherwise would make of the martens system a shield for the commission of
fraud by the vendors or his heirs, who would then be able to reconvey the
same property to other persons.
(2) NO. Actions to quiet title to property in the possession of the
plaintiff are imprescriptible.
Art. 480 of the Civil Code, states that “the principles of the general law
on the quieting of title are hereby adopted insofar as they are not in conflict
with this Code”. The general law referred to is American jurisprudence.
Under American jurisprudence, actions to quiet title to property in the
possession of the plaintiff are imprescriptible.
The prevailing rule is that the right of a plaintiff to have his title to
land quieted is not barred while the plaintiff or his grantors remain in actual
possession of the land, claiming to be owners thereof. But the rule that the
statute of limitations is not available as a defense to in action to remove a
cloud from title can only be invoked by a complaint when he is in possession.
If the plaintiff is not in possession of the property, the action to quite title
may also prescribe.
BUCTON vs. GABAR
GR No. L-36359. January 31, 1974
The court will treat an action for specific performance as an action
to quiet title provided that it has all the requisites of the latter.
Actions to quiet title to property in the possession of the plaintiff
are imprescriptible. But if he is not in possession thereof, the right
may as well prescribe and barred by acquisitive prescription.
FACTS
In 1946, defendant JOSEFINA LLAMOSO GABAR bought a parcel of land
from the spouses Villarin on installment basis. JOSEFINA entered into a verbal
agreement with her sister-in-law, plaintiff NICANORA GABAR BUCTON, that
the latter would pay ½ of the purchase price (P1000) and would then own ½
of the land. Then, NICANORA gave JOSEFINA the initial amount of P1,000 and
a receipt was issued. NICANORA also paid P400 and P1,000 respectively on
successive dates, for which, receipts were also issued.
Afterwards NICANORA and her husband FELIX BUCTON took possession
of the portion of the land indicated to them by defendants and built a
modest nipa house therein. 2 years after, they built another house for rent
behind the nipa house. Later, they demolished the nipa house and in its place
constructed a house of strong materials, with three apartments in the lower
portion for rental purposes. They occupied the upper portion of this house as
their residence until 1969, when they moved to another house, converting
and leasing the upper portion as a dormitory.
In 1947, the spouses Villarin executed the deed of sale of the land
abovementioned in favor of JOSEFINA. Hereafter, NICANORA and FELIX
BUCTON sought to obtain a separate title for their portion of the land in
question. But despite several demands, JOSEFINA and his husband ZOSIMO
GABAR declined to accommodate them on the excuse that the entire land
was still mortgaged with the Philippine National Bank as guarantee for their
loan of P3,500. Nevertheless, NICORA still paid JOSEFINA P400 and P1,000
respectively, as payment for the remaining balance for their half of the land.
For said payment, separate receipts were also issued.
NICANORA and FELIX BUCTON continued enjoying their portion of the
land, planting fruit trees and receiving the rentals of their buildings. In 1953,
with the consent of defendants JOSEFINA and ZOSIMO GABAR, they had the
entire land surveyed and subdivided preparatory to obtaining their separate
title to their portion. Upon demand for their separate title to the property,
however, JOSEFINA and ZOSIMO GABAR still refused, giving the same excuse.
Despite the employment of 2 lawyers, the same title was not issued.
Hence, NICANORA and FELIX BUCTON filed in court an action for specific
performance to compel JOSEFINA and ZOSIMO GABAR to execute in a deed
of sale of the western half of a parcel of land in their favor. The
lower court, ordered the execution of a deed of conveyance in
favor of NICANORA and FELIX BUCTON. The Court of Appeals
however, reversed the judgment of the lower court on the premise
that NICANORA and FELIX BUCTON’S right of action had already
prescribed being that 22 years and 26 days had already elapsed
from the time the receipt in 1946 was issued until 1968 when they
filed the action for specific performance. It was then barred by Art.
1144 of the Civil Code, which provides that an action arising from a
written contract prescribes after 10 years.
Hence, this appeal by NICANORA and FELIX BUCTON.
ISSUE
Whether or not the right of NICANORA and FELIX BUCTON for
specific action for the execution of a deed of conveyance has
already prescribed.
RULING
NO. Actions to quiet title to property in the possession of the
plaintiff are imprescriptible.
The real and ultimate basis of petitioners' action is their
ownership of one-half of the lot coupled with their possession
thereof, which entitles them to a conveyance of the property.
Under the circumstances no enforcement of the contract is
needed, since the delivery of possession of the land sold had
consummated the sale and transferred title to the purchaser, and
that, actually, the action for conveyance is one to quiet title, i.e., to
remove the cloud upon the appellee's ownership by the refusal of
the appellants to recognize the sale made by their predecessors.
Art. 480 of the Civil Code, states that “the principles of the
general law on the quieting of title are hereby adopted insofar as
they are not in conflict with this Code”. The general law referred to
is American jurisprudence. Under American jurisprudence, actions
to quiet title to property in the possession of the plaintiff are
imprescriptible.
The prevailing rule is that the right of a plaintiff to have his
title to land quieted is not barred while the plaintiff or his grantors
remain in actual possession of the land, claiming to be owners
thereof. But the rule that the statute of limitations is not available
as a defense to in action to remove a cloud from title can only be
invoked by a complaint when he is in possession. If the plaintiff is
not in possession of the property, the action to quite title may also
prescribe.
By the delivery of the possession of the land, the sale was
consummated and title was transferred to NICANORA and FELIX
BUCTON. The action was actually not for specific performance,
since all it sought is to quiet title, to remove the cloud cast upon
their ownership as a result of JOSEFINA and ZOSIMO GABAR's
refusal to issue the deed of conveyance. Being that NICANORA and
FELIX BUCTON was in possession of the land, the action is
imprescriptible. Only in a case that the buyer did not possess the
land, that their right may be subject to prescription.
CORONEL vs. IAC
GR No. L-70191. October 29, 1987
The court will treat an action for recovery of possession
of land as an action to quiet title provided that it has all
the requisites of the latter.
Actions to quiet title to property in the possession of the
plaintiff are imprescriptible and are not barred by
laches. But if he is not in possession thereof, the right
may as well prescribe and barred by acquisitive
prescription and laches as well.
FACTS
Petitioner RODOLFO CORONEL filed a complaint for recovery
of a registered possession of a parcel of land, situated in Naic,
Cavite. The complaint was filed against the ELIAS MERLAN, BRIGIDO
MERLAN, JOSE MERLAN, TEODORICO NOSTRATES, SEVERO JECIEL,
SANTIAGO FERNAN and FORTUNATO OCAMPO (PRIVATE
RESPONDENTS). CORONEL alleged that at the time he purchased
the subject parcel of land, the PRIVATE RESPONDENTS were already
occupying a portion thereof as "tenants at will" and that despite demands to
vacate the premises, the defendants failed and refused to move out from the
land.
The PRIVATE RESPONDENTS denied that CORONEL was the owner of the
whole parcel of land and alleged that:
the lots occupied by them form part of a 1/3 undivided share of
brothers Brigido Merlan and Jose Merlan which they inherited
from their deceased father,
the 3 heirs never sold their undivided 1/3 share of the lot to anybody,
it was actually their other co-heirs who sold their undivided portions,
plaintiff's claim of ownership of the whole parcel of land, if ever it has
basis, was fraudulent, void, and without effect,
that the Merlans have always been in open and peaceful possession
of their undivided share of the lot throughout the years from the
first sale by their co-heirs,
the other defendants were legitimate tenants and
the plaintiff should respect their rights over 1/3 of the land.
PRIVATE RESPONDENTS included as third-party defendant, Mariano
Manalo whom they charged might have connived with others including
CORONEL to deprive them of their share in the subject parcel of land. During
trial, the court found that the co-owners of PRIVATE RESPONDENTS sold to
Ignacio Manalo their 2/3 share of the same lot; and that Ignacio Manalo sold
only the 2/3 share to third-party defendant Mariano Manalo, the
predecessor-in-interest of CORONEL. Consequently, there was a mistake
when the Transfer Certificate of Title was issued to Mariano Manalo since it
covered not only the 2/3 portion sold but the whole area of the land.
The lower court dismissed the complaint of CORONEL and ruled in favor
of PRIVATE RESPONDENTS.
On appeal, CORONEL contended that the claim of the private
respondents over their 1/3 undivided portion of the land, 25 years after the
registration of the deed of sale in favor of Ignacio Manalo in 1950 and more
than five (5) years after the registration of the deed of sale in favor of
Mariano Manalo is barred by prescription or laches.
ISSUE
Whether or not the claim was barred by prescription or laches.
RULING
NO. The claim was neither barred by prescription nor laches.
The claim was not barred by prescription. As lawful possessors and
owners of the lot in question, PRIVATE REPSPODNENT’s cause of action fell
within the settled jurisprudence that an action to quiet title to property in
one's possession is imprescriptible. Their undisturbed possession over a
period of more than 25 years gave them a continuing right to seek the aid of
a court of equity to determine the nature of the adverse claim of a third
party and the effect of his own title. If at all, the PRIVATE RESPONDENTS'
right to quiet title accrued only in 1975 when they were made aware of a
claim adverse to their own, it was only at that time that the statutory period
of prescription may be said to have commenced to run against them.
The claim was not also barred by laches. Laches has been defined as the
failure or neglect, for an unreasonable and unexplained length of time, to do
that which by exercising due diligence could or should have been done
earlier, it is negligence or omission to assert a right within a reasonable time,
warranting a presumption that the party entitled to assert it either has
abandoned it or declined to assert it. The facts of the case show that the
private respondents have always been in peaceful possession of the 1/3
portion of the subject lot, exercising ownership thereto for more than 25
years disrupted only in 1975, when the petitioner tried to remove them by
virtue of his title. It was only at this point that private respondents knew
about the supposed sale of their 1/3 portion of Lot 1950-A of the Naic Estate
and they immediately resisted.
FERNANDEZ vs. CA
GR 83141. September 21, 1990
The court will treat an action for reconveyance as an action to
quiet title provided that it has all the requisites of the latter.
Actions to quiet title to property in the possession of the plaintiff
are imprescriptible. But if he is not in possession thereof, the right
may as well prescribe and barred by acquisitive prescription.
FACTS
In 1966, SPOUSES FLORENTINO and VIVENCIA FERNANDEZ
and SPOUSES ZENAIDA and JUSTIANO FERNANDEZ, purchased in
common a parcel of land in Pag-asa Subdivision, Quezon City. The
parcel of land was purchased for P15,500. SPOUSES FLORENTINO
and VIVENCIA advanced the downpayment of P5,500 to the
vendors. A Deed of Conditional Sale was executed by the vendors in
favor of the two couples.
In 1967, the vendors executed a Deed of Absolute Sale in
favor of SPOUSES ZENAIDA and JUSTINIANO only. When SPOUSES
FLORENTINO and VIVENCIA learned that the Absolute Deed of Sale
did not include their names as vendees, they confronted SPOUSES
ZENAIDA and JUSTIANO. Hence, the latter spouses executed an
affidavit in which they acknowledged the sale to petitioners
SPOUSES FLORENTINO and VIVENCIA.
A duplex building was constructed on the subject land. The 2
units were occupied by the 2 couples. In 1970, SPOUSES ZENAIDA
and JUSTINIANO caused the issuance of a certificate of title only in
their names.
In 1976, SPOUSES ZENAIDA and JUSTINIANO filed a Petition
for voluntary dissolution of their conjugal partnership. In the
petition, the couple prayed for judicial approval of their
compromise agreement wherein Justiniano waived all his rights to
the conjugal properties including the subject parcel of land. The
court awarded said land to ZENAIDA. In 1977, ZENAIDA demanded
that SPOUSES FLORENTINO and VIVENCIA vacate the premises of
the lot awarded to her.
In 1981, SPOUSES FLORENTINO and VIVENCIA filed an action
to quiet title and damages against ZENAIDA. The Court of Appeals
ruled in favor of JUSTIANA on the ground that the cause of action
of SPOUSES FLORENTINO and VIVENCIA had already prescribed in
view of the issuance in 1970 of a certificate of title in the name of
the Spouses JUSTINIANO and ZENAIDA FERNANDEZ.
Hence, this appeal.
ISSUE
Whether or not the right of SPOUSES FLORENTINO and
VIVENCIA had already prescribed in view of the issuance in 1970 of
a certificate of title in the name of the SPOUSES JUSTINIANO AND
ZENAIDA.
RULING
NO. Actions to quiet title to property in the possession of the
plaintiff are imprescriptible.
The issuance of a certificate of title in the name appearing
therein did not preclude SPOUSES FLORENTINO and VIVENCIA from
asserting their right of ownership over the land in question. Time
and again it has been ruled that the torrens system should not be
used as a shield to protect fraud. Moreover, prescription could not
be considered against SPOUSES FLORENTINO and VIVENCIA who
had been in possession of subject premises from the time it was
purchased from the vendors in 1967 and continue to possess the
same under claim of ownership.
Prescription cannot be invoked in an action for reconveyance,
which is, in effect an action to quiet title against the plaintiff
therein who is in possession of the land in question. As lawful
possessor and owner of the disputed portion, her cause of action
for reconveyance which, in effect, seeks to quiet title to property in
one's possession is imprescriptible.
While the owner in fee continues liable to an action,
proceeding, or suit upon the adverse claim, he has a continuing
right to the aid of a court of equity to ascertain and determine the
nature of such claim and its effect on his title, or to assert any
superior equity in his favor. He may wait until his possession is
disturbed or his title is attacked before taking steps to vindicate his
right. But the rule that the statute of limitations is not available as a
defense of an action to remove a cloud from title can only be
invoked by a complainant when he is in possession.
MAMADSUAL vs. MOSON
GR No. 92557. September 27, 1990
Actions to quiet title to property in the possession of the plaintiff
are imprescriptible. But if he is not in possession thereof, the right
may as well prescribe and barred by acquisitive prescription.
It is not necessary that the person seeking to quiet his title is
the registered owner of the property in question because the law
embraces both legal and equitable owners.
FACTS
In 1988, SPOUSES HADJI ALI and HADJI SALIKA MAMADSUAL filed a
complaint against SPOUSES KAGUI ABDULA and KAGUI RAKMA MACARAPAN
for Quieting of Title To Property and Annulment of Original Certificate of Title,
with the Shari'a District Court in Cotabato City. They claimed that they have
been in open, continuous, exclusive and notorious possession of the land
since time immemorial in the concept of owners though the same was
registered in the name of SPOUSES MACARAPAN.
The SPOUSES MACARAPAN, on the other hand, prayed that the case be
dismissed because:
SPOUSES MAMADSUAL had no title to the property,
they were not the proper parties to ask for the annulment or
cancellation of the Certificates of Title of SPOUSES MACARAPAN
and
the action, being based on an implied trust, had already prescribed
and could not therefore be maintained.
SPOUSES MAMADSUAL rebutted that:
1. the title referred to by them in the complaint meant the legal title
or ownership or dominion over the land in dispute acquired by
them from their ancestors by operation of the law on succession;
2. they are real party in interest because they will be benefited by
the judgment or entitled to the avails of the suit in their own right,
independent of any other interest, but with the authority of the
law; and
3. since they are in possession of the land, an action to quiet title
does not prescribe.
The lower court dismissed the complaint on the ground that the action
had prescribed. It also held that in an action to quiet title the plaintiff must
have legal or equitable title to, or interest in the real property which is the
subject matter of the action. It interpreted legal title to mean registered
ownership and equitable title to mean beneficial ownership.
ISSUE
(1) Whether or not the right of SPOUSES MAMADSUAL had already
prescribed.
(2) Whether or not the person seeking to quiet his title must be the
registered owner of the property in question.
RULING
(1) NO. An action to quiet title is imprescriptible if the plaintiffs are in
possession of the property.
It is an established rule of American jurisprudence (made
applicable in this jurisdiction by Art. 480 of the New Civil Code) that actions
to quiet title to property in the possession of the plaintiff am imprescriptible.
The prevailing rule is that the right of a plaintiff to have his title to
land quieted as against one who is asserting some adverse claim thereon, is
not barred while the plaintiff or his grantors remain in actual possession of
the land, claiming to be owners thereof. The reason for this rule being that
while the owner in fee continues liable to an action, proceeding, or suit upon
the adverse claim, he has a continuing right to the aid of a court of equity in
his favor to ascertain and determine the nature of such claim and its effect
on his title, or to assert any superior equity in his favor. He may wait until his
possession is disturbed or his title is attacked before taking steps to vindicate
his right. But the rule that the statute of limitations is not available as a
defense to an action to remove a cloud from title can only be invoked by a
complainant when he is in possession. One who claims property which is in
the possession of another must, it seems, invoke his remedy within the
statutory period.
(2) NO. It is not necessary that the person seeking to quiet his title is the
registered owner of the property in question.
Thus, "title'' to property does not necessarily mean the original
transfer certificate of title. It can connote acquisitive prescription by
possession in the concept of an owner thereof. Indeed, one who has an
equitable right or interest in the property may also file an action to quiet title
under the law.
 Since the action in this case is one to quiet title to
property whereby petitioners claim to have acquired title to the
same by prescription, the property was thereby effectively
withdrawn from the public domain and became property of private
ownership. Thus, the ruling of the trial court that the action being
one for reversion only the Solicitor General can institute the same
has no cogent basis.
PINGOL vs. CA
GR No. 102909. September 6, 1993
The court will treat an action for specific performance as
an action to quiet title provided that it has all the
requisites of the latter.
Actions to quiet title to property in the possession of the
plaintiff are imprescriptible. But if he is not in possession
thereof, the right may as well prescribe and barred by
acquisitive prescription.
FACTS
VICENTE PINGOL was the owner of a registered land in
Caloocan City. In 1969, he executed a Deed of Sale of ½ of an
undivided portion of said land in favor Francisco N. Donasco which
was acknowledged before a notary public. The agreed price was
P25,000 where P2,000 shall be paid as advance payment and the
remaining balance, on equal installment basis for 6 years.
Thereafter, Donasco immediately took possession of the
subject lot and constructed a house thereon. In January 1970, he
started paying the monthly installments but was able pay only up
to 1972. When Donasco died in 1984, he left an unpaid balance of
P10,161 for the contract price of said land. But the possession
thereof, still remained with DONASCO’s HEIRS, MELINDA D.
PELAYO, MARIETTA D. SINGSON, MYRNA D. CUEVAS, NATIVDAD D.
PELAYO, YOLANDA D. CACERES and M ARY DONASCO.
In 1988, the HEIRS OF DONASCO filed an action for Specific
Performance to compel VICENTE PINGOL to accept their offer to
pay the balance of P10,161 plus the stipulated legal rate of interest
thereon and to execute the final deed of sale on the ½ portion of
the lot. It was alleged that VICENTE PINGOL rebuffed their offer and
had been demanding for a bigger and unreasonable amount, in
complete variance to what was lawfully due and payable. VICENTE
PINGOL however claimed that the HEIRS OF DONASCO's cause of
action had already prescribed.
The Court of Appeals ruled in favor of the HEIRS OF DONASCO
and ordered VICENTE PINGOL to accept the payment of P10,161
and to execute the final deed of sale on the ½ portion of the lot. It
also ruled that THE HEIRS OF DONASCO’s action was
imprescriptible since it was akin to an action to quiet title to
property in one's possession.
Hence, this appeal by SPOUSES VICENTE and LOURDES
PINGOL.
ISSUE
Whether or not the action of the HEIRS OF DONASCO had
already prescribed being based upon a written contract, has
prescribed since it was brought only in 1988 or more than ten years
from the time when the latter could have lawfully demanded
performance.
RULING
NO, the action had not prescribed. Although the private
respondents' complaint before the trial court was denominated as
one for specific performance, it is in effect an action to quiet title.
The real and ultimate basis of the HEIRS OF DONASCO’s'
action was their ownership of one-half of the lot coupled with their
possession thereof, which entitled them to a conveyance of the
property. That a cloud has been cast on the title of the HEIRS OF
DONASCO’s was indubitable. Despite the fact that the title had
been transferred to them by the execution of the deed of sale and
the delivery of the object of the contract, the SPOUSES PINGOL
adamantly refused to accept the tender of payment by HEIRS OF
DONASCO and steadfastly insisted that their obligation to transfer title had
been rendered ineffective.
Prescription thus could not be invoked against the HEIRS OF DONASCO
for it is aphoristic that an action to quiet title to property in one's possession
is imprescriptible. The owner of real property who is in possession thereof
may wait until his possession is invaded or his title is attacked before taking
steps to vindicate his right. A person claiming title to real property, but not in
possession thereof, must act affirmatively and within the time provided by
the statute.
Possession is a continuing right as is the right to defend such
possession. So it has been determined that an owner of real property in
possession has a continuing right to invoke a court of equity to remove a
cloud that is a continuing menace to his title.
Such a menace is compared to a continuing nuisance or trespass which
is treated a successive nuisances or trespasses, not barred by statute until
continued without interruption for a length of time a sufficient to affect a
change of title as a matter of law.
HEIRS OF OLVIGA vs. CA
GR No. 104813. October 21, 1993
The court will treat an action for reconveyance as an action to
quiet title provided that it has all the requisites of the latter.
Actions to quiet title to property in the possession of the plaintiff
are imprescriptible. But if he is not in possession thereof, the right
may as well prescribe and barred by acquisitive prescription.
FACTS
In 1950, a parcel of land was still forest land when Eutiquio Pureza, then
only twelve years old, and his father cleared and cultivated it. In 1954, they
introduced improvements such as fruit trees thereon. When the area was
released for disposition, the Bureau of Lands surveyed the same in 1956 in
the name of Pureza and since then, the land had been known as Lot 13.
In 1960, Pureza filed a homestead application over Lot 13. Without his
application having been acted upon, he transferred his rights in said lot to
CORNELIO GLOR in 1961. Neither the homestead application of Eutiquio nor
the proposed transfer of his right to GLOR was acted upon by the Director of
Lands.
GLOR’s neighbor was JOSE OLVIGA. OLVIGA occupied Lot 12 while GLOR
occupied Lot 13. In 1967, OLVIGA obtained a registered title for said lot in a
cadastral proceeding when he claimed both Lots 12 and 13, in fraud of the
rights of GLOR and family, who were the real and actual occupants of the
land. As a result, both Lots 12 and 13 were declared as uncontested in the
name of OLVIGA.
Then, THE HEIRS OF GLOR, Angelita Glor and her children, filed a case
for reconveyance of said land against the HEIRS OF OLVIGA. The HEIRS OF
OLVIGA contended that the right of action by the HEIRS OF GLOR had already
been barred by prescription. The appellate court ruled in favor of the HEIRS
OF GLOR and declared that such action was really one for quieting of title.
Thus, it did not prescribe.
Hence,this appeal by the HEIRS OF OLVIGA.
ISSUE
Whether or not the action of the HEIRS OF OLVIGA had already
prescribed.
RULING
NO. An action for reconveyance of a parcel of lands based on implied or
constructive trust prescribed in ten years, the point of reference being the
date of registration of the deed or the date of the issuance of the certificate
of title over the property. But this rule applies only when the plaintiff is not in
possession of the property, since if a person claiming to be the owner thereof
is in actual possession of the property, the right to seek reconveyance which
in effect seeks to quiet title to the property, does not prescribe.
In the case at bar, the HEIRS OF OLVIGA and their predecessors-in-
interest were in actual possession of the property since 1950. Their
undisturbed possession gave them the continuing right to seek the aid of a
court of equity to determine, the nature of the adverse claim of petitioners,
who in 1988 disturbed their possession.
 CO-OWNERSHIP
ARTICLE 484: There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons.
In default of contracts, or special provisions, co-
ownership shall be governed by the provisions of this Title.
Co-ownership - state where an undivided thing or right belongs to
two or more persons. A co-ownership is not a juridical person, nor
is it granted any form of juridical personality.
 WHAT GOVERNS CO-OWNERSHIP?
1) Contracts
2) Special legal provisions
3) Provisions of the title on co-ownership
 SOURCES OF CO-OWNERSHIP
a. by law – Art. 144 of the New Civil Code –
where marriage that is void;
b. by contract – stipulation of the parties;
c. by chance – commixtion, confusion, hidden
treasure
d. by occupation
e. by succession or will – in case of interests of
heirs before partition.
KINDS OF OWNERSHIP
 From the viewpoint of the subject matter:
(1) Co-ownership of an undivided thing;
(2) Co-ownership of an undivided right.
 From the viewpoint of source:
(1) Contractual co-ownership (stipulation not to
divide the property for 10 yrs)
(2) Non-contractual co-ownership (if the source
is not a contract)
 From the viewpoint of the rights of the co-owners:
(1) Tenancy in common
(2) Joint tenancy
Characteristics:
1. plurality of subjects: Undivided thing owned by several persons..
lets say A B C: 1/3 interest each but there is no boundary, no
division only undivided interest. Unidentified noh.. hindi alam ang
metes and bounds.
2. singularity of object or unity of object. Only one object:
undivided thing
3. recognition of ideal shares : A recognizes B and C as the co-
owners; B recognizes A and C as co-owners and C recognizes A and
B as co-owners. If one does not recognize the ideal shares of the
other co-ownership. as a matter of fact, if he repudiates their
shares, then there is no co-ownership, because of the characteristic
of ideal shares.
Rules regarding ideal shares
1. Each co-owner has full ownership of his part and to the fruits of
that ideal shares. So that if he owns 1/3, he would also share 1/3 of
the proceeds.
2. The co-owner may alienate, assign or encumber his ideal share
even without consent of other co-owners. Of course this is the
general rule, there are exceptions like when personal rights are
involved.
SPOUSES SI vs. CA
GR No. 122047. October 12, 2000
After the physical division of the lot among the brothers,
the community ownership terminated, and the right of
preemption or redemption for each brother was no longer
available.
Co-owners with actual notice of the sale are not entitled to written
notice.
FACTS
Escolastica, wife of Severo Armada, Sr. originally owned a 340-sq. m.
of land situated in San Jose District, Pasay City. This was covered by a
Transfer Certificate of Title (TCT). In 1954, during the lifetime of the spouses,
Escolastica, with the consent of her husband, transferred the property to
their children. She executed 3 separate deeds of sale conveying 113.34
square meters of the property to and Dr. Severo R. Armada, and 113.33
square meters each to Crisostomo R. Armada and JOSE R. ARMADA.
Thereafter, the Registry of Deeds issued another TCT in the names of the
three sons. Also in the title is an annotation for the cancellation of said title
by virtue of the Deed of Sale dated 1979. It was executed by Cresenciana V.
Alejo, as attorney-in-fact of Crisostomo R. Armada, conveying 113.34 sq. m.
of his inherited portion of the property in favor of ANITA BONODE SI, married
to Serafin D. Si for the sum of P75,000. The Registry of Deeds then issued
another TCT in lieu of the other.
In 1980, spouses JOSE ARMADA and REMEDIOS ALMANZOR (SPOUSES
ARMADA) filed a complaint for Annulment of Deed of Sale and Reconveyance
against ANITA and SERAFIN SI (SPOUSES SI). Conrado Isada, brother-in-law of
Cresenciana was also included in the complaint as he brokered the sale.
The complaint alleged when the SPOUSES SI registered the deed of
absolute sale, they inserted the phrase that the co-owners were not
interested in buying the same in spite of notice to them when in fact, the
other co-owners, JOSE and Severo, Jr., had no written notice of the sale.
The SPOUSES SI on the other hand, alleged that in 3 deeds of sale
excuted by the 3 sons’ mother Escolastica, it particularly described the
portion conveyed to each son in metes and bounds. They contended that
that since the property was already 3 distinct parcels of land, there was no
longer co-ownership among the brothers. Hence, Jose and Severo, Jr. had no
right of redemption when Crisostomo sold his share to the SPOUSES SI.
The trial court ruled for the SPOUSES SI and dismissed the complaint.
On appeal with the Court of Appeals, said court reversed the decision of the
trail court and ruled for SPOUSES ARMADA. It ruled that there was still co-
ownership between the 3 brothers since the TCT issud by Escolastico to his 3
sons did not indicate the particular area sold. The court also stated that what
was then sold to the SPOUSES SI were still undetermined and unidentifiable,
as the area sold remains a portion of the whole. The brothers JOSE and
SEVERO, who were co-owners were not informed of the notice and are then
entitled to redeem the sold property.
Hence, this appeal by the SPOUSES SI.
ISSUES
(1) Whether or not co-ownership existed between the brothers SEVERO
JR., CRISOSTOMO and JOSE.
(2) Whether or not SEVERO has the right of redemption.
RULING
(1) NO, the co-ownership did not exist.
Under Art. 484 of the Civil Code, there is co-ownership whenever
the ownership of an undivided thing or right belongs to different persons.
There is no co-ownership when the different portions owned by different
people are already concretely determined and separately identifiable, even if
not yet technically described.
In the present case, the lot in question had already been
partitioned extrajudicially when their parents executed 3 deeds of sale in
favor of Jose, Crisostomo and Severo. The disputed land was not part of an
undivided estate. The portion sold to SPOUSES SI by Crisostomo and
Cresenciana Armada was concretely determined and identifiable. The
following facts support such claim:
(1) the 3 deeds of absolute sale technically described the
portion sold to each son,
(2) the portions belonging to the 3 sons were separately
declared for taxation purposes, and
(3) JOSE's wife testified that they had been receiving rent
from the property specifically allotted to Jose.
The fact that the three portions are embraced in one certificate of
title did not make said portions less determinable or identifiable or
distinguishable, one from the other, nor that dominion over each portion less
exclusive, in their respective owners.
(2) NO, they did not have the right of redemption. After the
physical division of the lot among the brothers, the community
ownership terminated, and the right of preemption or redemption
for each brother was no longer available.
Moreover, JOSE ARMADA was well-informed of the
impending sale of Crisostomo's share in the land when the latter
sent the former a letter. Co-owners with actual notice of the sale
are not entitled to written notice. A written notice is a formal
requisite to make certain that the co-owners have actual notice of
the sale to enable them to exercise their right of redemption within
the limited period of thirty days. But where the co-owners had
actual notice of the sale at the time thereof and/or afterwards, a
written notice of a fact already known to them, would be
superfluous. The statute does not demand what is unnecessary.
MERCADO-FEHR vs. FEHR
GR No. 122047. October 12, 2000
A man and a woman who are capacitated to marry but
are living together under a marriage declared as void ab
initio by the court for the husband’s psychological
incapacity,shall be coverned by co-ownership as to the
properties they acquired during the cohabitation. As
regards the settlement of the common properties, the
Civil Code provisions on co-ownership should apply.
FACTS
ELNA MERCADO-FEHR filed a petition for declaration of nullity
of marriage against respondent BRUNO FRANZ FEHR on the ground
of psychological incapacity to comply with the essential marital
obligations under Article 36 of the Family Code. After due
proceedings, the trial court declared the marriage between
petitioner and respondent void ab initio under Article 36 of the
Family Code. The court also ordered the dissolution of their
conjugal partnership of property and in lieu thereof, a regime of
complete separation of property between the said spouses was
established. The custody over the 2 minor children, MICHAEL
BRUNO MERCADO FEHR and PATRICK FRANZ FEHR was hereby
awarded to ELNA MERCADO-FEHR, she being the innocent spouse.
ELNA MERCADO-FEHR then filed a motion for reconsideration
of said Order. She alleged that Suite 204 was purchased on
installment basis at the time when she and BRUNO FRANZ FEHR
were living exclusively with each other as husband and wife
without the benefit of marriage. Hence the rules on co-ownership
should apply in accordance with Article 147 of the Family Code and
not the complete separation of property. She also proposed that
the Upper Basement and the Lower Ground Floor of the LCG
Condominium be adjudicated to her so that she could use the
income from the lease of said premises for the support of the
children, for the latter’s best interest.
The trial court held that since the marriage between
petitioner and respondent was declared void ab intio, the rules on
co-ownership should apply in the liquidation and partition of the
properties they own in common pursuant to Article 147 of the
Family Code. The court, however, affirmed its previous ruling that
Suite 204 of LCG Condominium was acquired prior to the couple’s
cohabitation and therefore pertained solely to BRUNO FRANZ
FEHR. On appeal with the Court of Appeals, ELNA MERCADO-FEHR’s
petition was dismissed for lack of merit.
Hence, this appeal. She contended that the trial court’s order
was erronoeous when it held that Suite 204 of the LCG
Condominium was the exclusive property of BRUNO FRANZ FEHR,
although it was established that they lived together as husband and
wife beginning March 1983, before the execution of the Contract to
Sell on July 1983.
BRUNO FRANZ FEHR however claimed that Suite 204 of LCG
Condominium to be his exclusive property as it was acquired on
July 1983, prior to their marriage on March 1985.
ISSUES
(1) Whether or not Suite 204 of LCG Condominium was exclusively
owned by BRUNO FRANZ FEHR.
(2) Being that the marriage of ELNA MERCADO-FEHR and BRUNO FRANZ
FEHR were declared to be void ab initio for the latter’s psychological
incapacity, what economic regime of property shall govern them?
RULING
(1) NO, it was not exclusively owned by BRUNO FRANZ FEHR.
It appears from the facts, as found by the trial court, that in March
1983, after two years of long-distance courtship, petitioner left Cebu City and
moved in with respondent in the latter’s residence in Metro Manila. Their
relations bore fruit and their first child, Michael BRUNO FRANZ FEHR, was
born in 1983. The couple got married on March 14, 1985. In the meantime,
they purchased on installment a condominium unit, Suite 204, at LCG
Condominium, as evidenced by a Contract to Sell dated 1983 executed by
respondent as the buyer and J.V. Santos Commercial Corporation as the
seller. Petitioner also signed the contract as witness, using the name “Elna
Mercado Fehr”. Upon completion of payment, the title to the condominium
unit was issued in the name of petitioner.
Hence, Suite 204 was acquired during the parties’ cohabitation.
Accordingly, under Article 147 of the Family Code, said property should be
governed by the rules on co-ownership.
(2) What shall govern them is co-ownership.
Article 147 applies to unions of parties who are legally capacitated and
not barred by any impediment to contract marriage, but without the benefit
of marriage, or whose marriage is nonetheless void, as in the case at bar.
This provision creates a co-ownership with respect to the properties they
acquire during their cohabitation.
Any property acquired during the union is prima facie presumed to have
been obtained through their joint efforts. A party who did not participate in
the acquisition of the property shall still be considered as having contributed
thereto jointly if said party’s “efforts consisted in the care and maintenance
of the family household.”
The disputed property, Suite 204 of LCG Condominium, was purchased
on installment basis on July 26, 1983, at the time when petitioner and
respondent were already living together. Hence, it should be considered as
common property of petitioner and respondent.
The property regime of the parties should be divided in accordance with
the law on co-ownership. As regards the settlement of the common
properties of petitioner and respondent, the Civil Code provisions on co-
ownership should apply. Under Art. 484, in default of contracts or special
provisions, co-ownership shall be governed by the provisions of Title III of the
Civil Code.
ARTICLE 485: The share of the co-owners, in the benefits as well as
in charges, shall be proportional to their respective interests. Any
stipulation in contract to the contrary shall be void.
RULES IN BENEFITS AND SHARES:
1. The share in the benefits and charges is proportional to interest of
each. Hence, if one co-owner owns 2/3, he shares 2/3 of the taxes.
2. Contrary stipulation is void. To do so would be to run against the nature
of co-ownership.
3. Each co-owner share proportionally in the accretion or alluvium of the
property. This is because an increase in the area benefits all.
JIMENEZ vs. FERNANDEZ
GR No. L-46364. April 6, 1990
A property held in common, upon the death of a co-owner who
died without any issue or heir shall be owned by the other co-
owner. The portions belonging to each are presumed to be equal.
FACTS
Fermin Jimenez owned a parcel of residential land in Pangasinan.
Fermin Jimenez had 2 sons named Fortunato and Carlos Jimenez. This
Fortunato Jimenez who predeceased his father had only one child, petitioner
SULPICIA JIMENEZ. After the death of Fermin Jimenez, the entire parcel of
land was registered under Act 496 in the name of Carlos Jimenez and
SULPICIA JIMENEZ (uncle and niece) in equal shares pro-indiviso. As a result,
an OCT was issued in their names.
Later, Carlos Jimenez and his illegitimate daughter, Melecia Cayabyab,
also known as Melecia Jimenez, took possession of the eastern portion of the
property consisting of 436 sq. m. Melecia Jimenez sold said portion
of the property to Edilberto Cagampan. The latter also sold the
same property to respondent TEODORA GRADO, who has been in
occupation since.
Subsequently, petitioner SULPICIA JIMENEZ executed an
affidavit adjudicating unto herself the other half of the property
appertaining to Carlos Jimenez, upon manifestation that she is the
only heir of her deceased uncle. Consequently a TCT was issued in
her name alone. Then, SULPICIA JIMENEZ and her husband,
TORIBIO MATIAS instituted an action for the recovery of the
eastern portion of the property consisting of 436 square meters
occupied by respondent TEODORA GRADO and her son.
The trial court dismissed said complaint and held TEODORA
GRADO as the absolute owner of the property. On appeal with the
Court of Appeals, the same decision was affirmed in toto.
Hence, this appeal.
ISSUE
Whether or not the disputed portion of the property was
owned by SULPICIA JIMENEZ as a co-owner.
RULING
YES. SULPICIA JIMENEZ's title over her 1/2 undivided property
remained good and continued to be good when she segregated it
into a new title. She should be entitled for the relief of recovery of
the disputed property and be declared as its sole and absolute
owner with right to its possession and enjoyment. Since her uncle
Carlos Jimenez died in 1936, his pro-indiviso share in the properties
then owned in co-ownership with his niece Sulpicia descended by
intestacy to Sulpicia Jimenez alone because Carlos died without any
issue or other heirs.
Melecia Jimenez, who sold the property in question to
TEODORA GRADO was not the daughter of Carlos Jimenez and
therefore, had no right over the property in question. Melecia
Cayabyab in the absence of any voluntary conveyance to her by
Carlos Jimenez or Sulpicia Jimenez of the litigated portion of the
land could not even legally transfer the parcel of land to Edilberto
Cagampan who accordingly, could not also legally transfer the
same to herein private respondents HOSPICIO FERNANDEZ and
TEODORA GRADO.
ARTICLE 486: Each co-owner may use the thing owned in common,
provided he does so in accordance with the purpose for which it is
intended and in such way as not to injure the interest if the co-
ownership or prevent the other co-owners from using it according
to their rights. The purposes of the co-ownership may be changed
by agreement, express or implied.
4. This article grants each co-owner the right to use the property
for the purpose intended (said purpose being alterable by
express or implied agreement). But:
1) the interest of the co-ownership must not be
injured or prejudiced;
2) and the other co-owners must not be prevented
from using it.
ARTICLE 487: Any one of the co-owners may bring an action in
ejectment.
5. It is believed that ‘ejectment’ covers the following actions:
a) forcible entry
b) unlawful detainer
c) accion publicianca
d) accion reinvindicatoria
e) quieting of title
f) replevin
PUNSALAN vs. BOON LIAT
GR No. 18009. January 10, 1923
Co-owners file an action for recover not only against
strangers but also against a co-owner, when the latter
performs with respect to the thing held in common, acts
for their exclusive benefit, or of exclusive ownership, or which are
prejudicial to, and in violation of, the right of the community.
FACTS
In 1920, TAMSI saw from the Cawit-Cawit shores in the Province of
Zamboanga, a big bulky object in the distance which attracted his attention.
Thereupon, together with BAYRULA, he went in a small boat to investigate
and found it to be a large fish. They then returned to shore and requested
others to held them catch the fish. 22 people rode in 3 small boats to catch
said fish, among them was respondent AHAMAD. After having arrived at the
place where the fish was, which was found to be a whale, they proceeded to
pull it toward the shore up to the mouth of the river, where they quartered
it. They found in its abdomen a great quantity of ambergris, which was
placed in 3 sacks, 2 of which were full and the other half full. It was then
taken to the house of Maharaja Butu, where they left it to the care of
AHAMAD.
All of these twenty-two persons made an agreement that they were to
be the sole owners of this ambergris and that none of them could sell it
without the consent of the rest. The contents of the 2 full sacks were placed
in three trunks. As to the half sack of ambergris they agreed that some of
them should take it to Zamboanga to sell for the purpose of ascertaining the
market price of the ambergris, in order that they might dispose of the rest
accordingly.
TAMSI, together with some of the co-owners went to Zamboanga to sell
the half sack of ambergris where they disposed of it to Chinamen Lim Chiat
and Cheong Tong. They also offered to sell the rest of the ambergris to them.
After the Chinamen agreed so, they back to Cawit-Cawit to get the ambergris
so sold.
It appeared however that HENRY E. TECK also knew of the existence of
the ambergris in the house of Maharaja Butu. Knowing that some of the co-
owners were away, he proposed to the master of the revenue cutter
Mindoro to go to Cawit-Cawit to seize some supposedly contraband opium.
They then immediately proceeded to Cawit-Cawit, among them were HENRY
E. TECK, Chinamen C. BOON LIAT, ONG CHUA and GO TONG, and some others
who were to assist in the arrest of the smugglers.
Upon arrival in the house of Maharaja Butu, the master proceeded to
search the house. He found 3 large trunks containing a black substance which
had a bad odor, stating that it was opium. When he asked the owner of the
house to whom those trunks belonged to, the latter pointed to AHAMAD.
The latter stated that the contents came from the abdomen of a large fish
but the master, however insisted that it was opium and told AHAMAD that
he would take the 3 trunks on board the ship to Zamboanga. AHAMAD and
others asked permission of the master to accompany him on the voyage to
Zamboanga, to which the master consented.
When already on board and during the voyage, the master became
convinced that the contents of the three trunks were not opium. During the
voyage, HENRY E. TECK offered to purchase the ambergris contained in the 3
trunks, but AHAMAD refused to sell it for the reason that he was not the sole
owner thereof, but owned it in common with other persons who were in
.Zamboanga. However, upon telling AHAMAD that he would answer
whatever might happen, AHAMAD sold the ambergris to HENRY E. TECK and
the Chinamen C. BOON LIAT, ONG CHUA and GO TONG. He received down
payment immediately and the remaining balance was paid later.
When the other co-owners arrived at the house of Maharaja Butu,
together with the Chinamen buyers LIM CHIAT and CHEONG TONG, they
found out that the ambergris was no longer there. The 21 plaintiffs who had
caught the whale (PUNSALAN ET AL.) and the Chinamen buyers, Lim Chiat
and Cheong Tong, who had purchased from Tamsi the ambergris filed an
action against C. BOON LIAT, ONG CHUA, GO TONG, HENRY E. TECK and
AHAMAD. They claimed the 801 kilos of ambergris contained in the 3 trunks
or its value in the amount of P60,000 and damages in the sum of P20,000.
ISSUES
(1) Whether or not the action was barred because one of the
respondents AHAMAD was a co-owner.
(2) Whether or not the sales made by TAMSI and AHAMAD were valid.
RULING
(1) NO. It was no bar to the bringing of this action that the respondent
AHAMAD is one of the co-owners. The action for recovery which each co-
owner has, derived from the right of ownership inherent in the co-
ownership. The right may be exercised not only against strangers but also
against co-owners themselves, when the latter perform with respect to the
thing held in common, acts for their exclusive benefit, or of
exclusive ownership, or which are prejudicial to, and in violation of,
the right of the community.
In this case, the selling of the ambergris by the respondent
AHAMAD as his exclusive property and his attitude in representing
himself to be the sole owner thereof placed him in the same
position as the stranger who violated any right of the community.
Hence, he was not sued as a co-owner for the cause of action is
predicated upon the fact that he has acted not as a co-owner but as
an exclusive owner of the ambergris sold by him.
(2) NO. The sales were not valid. The ambergris in question was
the undivided common property of the plaintiffs and the
respondent AHAMAD. This common ownership was acquired by
occupancy, so that neither TAMSI, IMAM LUMUYOD, or IMAM
ASAKIL had any right to sell it, as they did, to LIM CHIAT and
CHEONG TONG, nor had the Moro Ahamad any right to sell this
same ambergris, as he did, to C. BOON LIAT, ONG CHUA, GO TONG,
and HENRY E. TECK. There was an agreement between the
coowners not to sell this ambergris without the consent of all. Both
sales having been made without the consent of all the owners, the
same have no effect, except as to the portion pertaining to those
who made them.
Note: An ambergris is a solid, opaque, waxy, ash-
colored secretion from whales, which is used in
perfumery.
DE GUIA vs. CA
GR No. 120864. October 8, 2003
Art. 487 covers all kinds of actions for the recovery of
possession. A co-owner may file an action for recovery of
possession against a co-owner who takes exclusive
possession of the entire co-owned property. However,
the only effect of such action is a recognition of the co-
ownership.
Before partition, co-owners have joint right of dominion
over property.
FACTS
2 parcels of land covering a fishpond with a total area of
79,220 sq. m., situated in Meycauayan, Bulacan was equally owned
by Primitiva Lejano and Lorenza Araniego. The property was
registered in both their names.
In 1974, the whole fishpond was the subject of a “Salin ng
Pamumusisyong ng Palaisdaan” executed by the heirs of Primitiva
Lejano in favor of one Aniano Victa and petitioner MANUEL DE
GUIA. Said Lease Contract was with the knowledge and consent of
Teofilo Abejo, sole heir of Lorenza Araniego. The contract provided
that the period of lease shall be until 1979.
Later, Teofilo Abejo acquired Lorenza Araniego Abejo’s ½
undivided share in the FISHPOND by intestate succession. In 1983,
½ of the undivided portion owned by Araniego corresponding to
39,611 sq. m. was later purchased by JOSE ABEJO from his father
Teofilo Abejo.
When the contract expired and DE GUIA failed to surrender
the fishpond, written demands were made for him to pay back
rental and to vacate the premises in question. However, DE GUIA
refused to deliver possession and also to pay the rentals due.
In anticipation, however, that DE GUIA wouldl vacate the
fishpond, JOSE ABEJO in 1983 entered into a 2-year “Kasunduan ng
Buwisan ng Palaisdaan” with Ruperto C. Villarico for P50,000. This
contract had to be cancelled and the consideration was also
returned because DE GUIA refused to vacate the fishpond.
Hence, in 1986 ABEJO filed an action for recovery of
possession of ½ of his share of the said fishpond with damages
against DE GUIA.
On the other hand, DE GUIA contended that ABEJO was not
the owner of the entire FISHPOND but one Maxima Termulo who
died intestate with Primitiva Lejano as her only heir. The entire
fishpond with an area of 79,200 sq. m. was leased to him by the
heirs of Primitiva Lejano. Subsequently, he became the absolute owner of ½
of the undivided area of the fishpond from the heir of Lejano and he
questioned ABEJO’s ownership of the other half as void and fraudulent. As to
the area pertaining to ABEJO, DE GUIA claimed that he introduced
improvements worth P500,000 and being a builder in good faith, he asked
that he should be reimbursed by ABEJO.
The court rendered judgment in favor of ABEJO and ordered DE GUIA to
return to the former, the ½ undivided portion of the 79,200 sq. m. fishpond
and to equally enjoy its benefits and fruits until such time that partition of the
property be effected. On appeal, with the Court of Appeals, the court
dismissed the petition for lack of merit.
Agrrieved, DE GUIA petitioned the Supreme Court for review. He
claimed that an action for recovery of possession and turn-over of the ½
undivided portion of a common property is not proper before partition and
that the recovery of rent was also erroneous since the exact identity of the
portion in question had not yet been clearly defined and delineated.
ISSUES
(1) Whether an action for recovery of possession and turn-over of the ½
undivided portion of a common property is proper before partition.
(2) Whether or not the recovery of rent is proper even if the exact identity
of the portion in question had not yet been clearly defined and delineated.
RULING
(1) NO, partition is necessary to effect physical division of the FISHPOND
between ABEJO and DE GUIA.
Article 487 of the Civil Code provides, “[a]ny one of the co-owners may
bring an action in ejectment.” This article covers all kinds of actions for the
recovery of possession. Article 487 includes forcible entry, unlawful detainer,
recovery of possession (accion publiciana), and recovery of ownership (accion
de reivindicacion).
A co-owner may file an action for recovery of possession against a co-
owner who takes exclusive possession of the entire co-owned property.
However, the only effect of such action is a recognition of the co-ownership.
The courts cannot proceed with the actual partitioning of the co-owned
property.
Thus, judicial or extra-judicial partition is necessary to effect physical
division of the FISHPOND between ABEJO and DE GUIA. An action for
partition is also the proper forum for accounting the profits received by DE
GUIA from the FISHPOND.
However, as a necessary consequence of such recognition of co-
ownership, ABEJO shall exercise an equal right to possess, use and enjoy the
entire FISHPOND. Hence, ABEJO and DE GUIA had become owners of the
whole and over the whole, they exercise the right of dominion. However,
they were at the same time individual owners of a ½ portion, which is truly
abstract because until there is partition, such portion remains indeterminate
or unidentified. As co-owners, ABEJO and DE GUIA may jointly exercise the
right of dominion over the entire FISHPOND until they partition the
FISHPOND by identifying or segregating their respective portions.
(2) YES, recovery of rent is proper even if the exact identity of the portion
in question had not yet been clearly defined and delineated was proper.
The Lejano Heirs and Teofilo Abejo agreed to lease the entire FISHPOND
to DE GUIA. After DE GUIA’s lease expired in 1979, he could no longer use
the entire FISHPOND without paying rent. To allow DE GUIA to continue
using the entire FISHPOND without paying rent would prejudice ABEJO’s right
to receive rent, which would have accrued to his ½ share in the FISHPOND
had it been leased to others.
Since ABEJO acquired his ½ undivided share in the FISHPOND on 22
November 1983, DE GUIA should pay ABEJO reasonable rent for his
possession and use of ABEJO’s portion beginning from that date.
ARTICLE 488: Each co-owner shall have the right to compel the
other co-owners to contribute o the expenses of preservation of the
thing or right owned in common and to the taxes. Any one of the
latter may exempt himself from this obligation by renouncing so
much of his undivided interest as may be equivalent to his share of
the expenses and taxes, no such waiver shall be made if it is
prejudicial to the co-ownership.
ARTICLE 489: Repairs for preservation may be made at the will of
one of the co-owners, but he must, if practicable, first notify his co-
owners of the necessity for such repairs. Expenses to improve or
embellish the thing shall be decided upon by a majority as
determined in Article 492.
 Two (2) kinds of repair:
(1) repair for the preservation of the thing;
o These are necessary expenses to preserve
the thing owned in common.
o They may be made by the will of one of the
co-owners. A co-owner can actually go ahead
and repair the thing owned in common but
he must notify his co-owners of the necessity
for such repairs. So he does not need to
acquire the consent.
(2) Repair for improvement or embellishment.
 These are not necessary repairs but
repairs to improve the thing co-owned.
REQUIREMENT: It must be made by the financial majority, as
determined under Art. 492.
o Financial majority - co-owners who represent the
controlling interest of the object of the co-
ownership.
o Rule if notification was practicable but not made:
o The other co-owners may claim that had they been
notified they could have found cheaper materials
and therefore they should pay less than what is
being charged. But because of Art 488, they still
have to reimburse. The co-owner who failed to
make notification has the burden of proof to prove
the reasonableness of the expenses. And if he
failed to prove the reasonableness of the expenses
then he must take care of the difference, he must
take care of the excess.
ADILLE vs. CA
GR No. 44546. January 29, 1988
When a co-owner has repurchased a property held in
common with his own funds alone, it did not terminate
the co-ownership. The expenses he incurred shall be
subject to reimbursement from the remaining co-
owners.
FACTS
Leliza Alzul originally owned a lot of the Cadastral Survey of
Albay in Legaspi City, containing an area 11,325 sq. m. Alzul
married twice in her lifetime. The first, marriage was with one
Bernabe Adille, with whom she had as an only child, herein
petitioner RUSTICO ADILLE. The second, was with one Procopio
Asejo, with whom she has 5 children, herein respondents
EMETERIA ASEJO, TEODORICA ASEJO, DOMINGO ASEJO, JOSEFA
ASEJO, and SANTIAGO ASEJO (ASEJOs).
In 1939, Alzul sold the property in pacto de retro to certain
3rd persons with a period of 3 years for repurchase. She died in
1942 without being able to redeem said property. However, after
her death, but during the period of redemption, RUSTICO ADILLE
repurchased by himself alone said property. In 1955, he executed a
deed of extra-judicial partition representing himself to be the only
heir and child of his mother that he was able to secure a title,
transferring the said property registered in the name of his mother,
in his name alone.
After some efforts of compromise had failed, ADILLE’s half-
brothers and sisters, the ASEJOs filed an action for partition with
accounting on the position that he was only a trustee on an implied
trust when he redeemed said property. ADILLE also filed a
counterclaim against her half-sister and one of the defendants
herein EMETERIA ASEJO, who was found to be in possession of a
portion of said property to vacate the premises.
The trial court declared ADILLE as absolute owner of the
property in question and condemned EMETRIA ASEJO to vacate the
property. The Court of Appeals though, ruled in favor of the
ASEJOs. Aggrieved, ADILLE file this petition. He contended that the
property subject of dispute devolved upon him upon the failure of
his coheirs to join him in its redemption within the period required by law.
ISSUE
Whether or not a ADILLE who was a co-owner may acquire
exclusive ownership over the property he held in common with the ASEJOs?
RULING
NO. The right of repurchase may be exercised by a co-owner with
respect to his share alone. While the records show that the petitioner
redeemed the property in its entirety, shouldering the expenses therefore,
that did not make him the owner of all of it. In other words, it did not put to
end the existing state of co-ownership.
There is no doubt that redemption of property entails a necessary
expense. Necessary expenses then may be incurred by one co-owner, subject
to his right to collect reimbursement from the remaining co-owners under
Art. 488.
The redemption by one co-heir or co-owner of the property in its
totality does not vest in him ownership over it. Failure on the part of all the
co-owners to redeem it entitles the vendee a retro to retain the property and
consolidate title thereto in his name. But the provision does not give to the
redeeming co-owner the right to the entire property. It does not provide for
a mode of terminating a co-ownership.
Neither does the fact that the petitioner had succeeded in securing title
over the parcel in his name terminate the existing co-ownership. While his
half-brothers and sisters are, as we said, liable to him for reimbursement as
and for their shares in redemption expenses, he cannot claim exclusive right
to the property owned in common. Registration of property is not a means of
acquiring ownership
ARTICLE 490: Whenever the different stories of a house belong to
different owners, if the titles of ownership do not specify the terms
under which they should contribute to the necessary expenses and
there exists no agreement on the subject, the following rules shall
be observed:
(1.) The main and party walls, the roof and the other things
used in common, shall be preserved at the expense of all
the owners in proportion to the value of the story
belonging to each;
(2.) Each co-owner shall bear the cost of maintaining the
floor of his story; the floor of the entrance, front door,
common yard and sanitary works common to all, shall
be maintained at the expense of all the owners pro rata.
(3.) The stairs from the entrance to the first story shall be
maintained at the expense of all the owners pro rata,
with the exception of the owner on the ground floor, the
stairs from the first to the second story shall be
preserved at the expense of all, except the owner of the
ground floor and the owner of the first story, and so on
successively.
 Art. 490 talks about perpendicular co-ownership.
Condominium Act, RA 4726.
 Condominium - It is an interest in a real property consisting of:
 Separate interest in a unit of a building as sole ownership. Sole
ownership with respect to the unit.
 An individual interest with respect to the common areas like the
land, stairs, beams, elevators, and other common areas. And, this
is co-ownership.
 In condominium, there is sole ownership and co-ownership at the
same time.
 A condominium is actually a corporation. When you a buy a unit in
a condo, you become a member of the condominium corporation.
 A condominium is the exception to the constitutional provision
that ‘aliens cannot own properties in the Philippines.’
 Condo units can be sold to aliens provided that 60% of the condo
is owned by Filipinos
SUNSET VIEW vs. CAMPOS
 GR Nos. 52361 & 52524. April 27, 1981
Ownership over a condominium unit is acquired by the
buyer only after he had paid the purchase price. The
ownership of the unit is what makes the buyer a
shareholder in the condominium.
FACTS
The petitioner SUNSET VIEW CONDOMINIUM CORPORATION
was a Condominium Corporation within the meaning of The
Condominium Act (RA 4726). It filed 2 separate cases against
private respondents AGUILAR-BERNARES REALTY and LIM SIU
LENG. The court consolidated the 2 cases being that it involved
similar facts and raised identical questions of law.
GR No. 52361
Private respondent AGUILAR-BERNARES REALTY was a
registered business owned and operated by the spouses Emmanuel
and Zenaida B. Aguilar. It was the assignee of a unit, "Solana", in
the SUNSET VIEW CONDOMINIUM PROJECt with LA PERLA
COMMERCIAL INCORPORATED, as assignor. LA PERLA bought the
"Solana" unit on installment from the Tower Builders, Inc. In 1979,
SUNSET VIEW CONDO, filed for the collection of assessments levied
on the unit against AGUILAR REALTY. The latter filed a motion to
dismiss.
GR No. 52524
In 1977, Private respondent LIM SIU LENG was assigned a unit
called "Alegria" of the Sunset View Condominium Project by
Alfonso Uy who had entered into a "Contract to Buy and Sell" with
Tower Builders, Inc. over the said unit on installment basis. In 1979,
SUNSENT VIEW CONDO filed an action for the collection of overdue
accounts on assessments and insurance premiums and the interest
thereon from LIM. LIM filed a motion to dismiss on the ground that
by having purchased the condominium unit, she has automatically
become a stockholder of SUNSET VIEW CONDO, pursuant to Sec. 2
of The Condominium Act. Hence, the dispute being intra-corporate
should have been under the exclusive jurisdiction of the Securities
& Exchange Commission as provided in Sec. 5 of P.D. No. 902-A.
The respondent JUDGE JOSE C. CAMPOS dismissed the 2 cases
and opined that AGUILAR REALTY and LIM, respectively were
holders of a separate interest pursuant to Sec. 2 of The
Condominium Act. Thus, being a shareholder of SUNSET VIEW
CONDO, the case should have been filed with the Securities &
Exchange Commission which had exclusive original jurisdiction on
controversies arising between shareholders of the corporation. A
motion for reconsideration was also denied.
Aggrieved, SUNSET VIEW CONDO filed a petition to review
with the Court of Appeals. In both cases, private respondents
therein AGUILAR REALTY and LIM argued that every purchaser of a
condominium unit, regardless of whether or not he has fully paid
the purchase price, is a "holder of a separate interest" mentioned in
Sec. 2 of The Condominium Act and is automatically a shareholder
of the Condominium Corporation.
ISSUE
Whether or not AGUILAR REALTY and LIM, who had not yet
fully paid the purchase price of the condominium units they
respectively bought from SUNSET VIEW CONDO had automatically
become a stockholder of the Condominium Corporation.
RULING
NO. Sec. 5 of The Condominium Act (RA 4726) expressly
provides that the shareholding in the Condominium Corporation
will be conveyed only in a proper case. It is clear then that not
every purchaser of a condominium unit is a shareholder of the
Condominium Corporation.
The court held that a purchaser of a condominium unit shall
only become a shareholder of the Condominium Corporation. The
court premised it on the Master Deed of the condominium, the
deed of conveyance and The Condominium Act itself.
First. The Condominium Act leaves to the Master Deed the
determination of when the shareholding will be transferred to the purchaser
of a unit. The Master Deed states that the shareholding in the Condominium
Corporation is inseparable from the unit to which it is only appurtenant, and
that only the owner of a unit is a shareholder in the Condominium
Corporation.
Second. In both deeds of conveyance entered into by AGUILAR REALTY
and LIM, it was provided that only after the full payment of the purchase
price shall the buyer of the condominium unit be granted shares of stocks.
Consequently, even under the contract, it is only the owner of a unit who is a
shareholder of the Condominium Corporation. Hence, a purchaser of a unit
who has not paid the full purchase price thereof is not the owner of the unit
and consequently is not a shareholder of the Condominium Corporation.
Third. Under The Condominium Act, ownership of a unit is a condition
sine qua non to being a shareholder in the Condominium Corporation. It
follows that a purchaser of a unit who is not yet the owner thereof for not
having fully paid the full purchase price, is not a shareholder. By necessary
implication, the "separate interest" in a condominium, which entities the
holder to become automatically a shareholder in the Condominium
Corporation, as provided in Sec. 2 of the Condominium Act, can be no other
than ownership of a unit. This is so because nobody can be a shareholder
unless he is the owner of a unit and when he ceases to be the owner, he also
ceases automatically to be a shareholder.
The private respondents, therefore, who have not fully paid the
purchase price of their units and are consequently not owners of their units
are not members or shareholders of the petitioner Condominium
Corporation. Being that they were not shareholders in the Condominium
Corporation, the Securities and Exchange Commission did not have
jurisdiction over the case.
Art. 491: None of the co-owners shall, without the consent of the
others, make alterations in the thing owned in common, even
though benefits for all would result therefrom. However, if the
withholding of the 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 is an act of ownership, not merely an act of
administration.
 there is a need for the unanimity of consent
 Consent here may be tacit or express
Effect of a tacit consent:
the co-owner who is deemed to have tacitly consented to the alteration
cannot ask for its demolition, neither can he be held liable to
answer for any part of the expenses incurred therein because the
obligation to pay such expenses cannot be deemed to be the
subject of his tacit consent, unless he wants or if he derives
benefit out of the new undertaking, then the other co-owners
may compel him to contribute.
Alteration: Characteristics:
1) Alteration is a change which is more or less permanent
in character.
2) It changes the use of the thing owned in common.
3) It prejudices the condition of co-ownership or the
enjoyment by others.
Examples of alteration:
sale, donation, mortgage, voluntary easement
When is the alteration illegal?
1. When the co-owner does not ask for the consent of the
other co-owners;
2. when he asks for the consent of the other co-owners
but they object;
3. When he proceeds with the alteration even though the
other c0-owners object.
 So, what is the effect of illegal alteration without the consent? The
co-owner responsible may lose what has spent; the demolition
may be compelled; the co-owner responsible will be liable for
losses and damages to the other co-owners.
 But whatever benefits the co-ownership derives belong to it. For
example, the house has already been built, B and C were abroad,
 they were not informed about the construction and
when they came back, they saw the house, can B and C
benefit? YES.
 In case a house is constructed on a common lot, all the
co-owners will be entitled to a proportionate share of
the rent.
 Take note of the unanimity of consent. If it involves acts
of ownership, there must be unanimity of consent. If it
merely involves acts of administration, then majority
may suffice.
THE FF. ARE ACTS OF ADMINISTRATION:
1) They are those that do not involve an alteration;
2) Those that maybe renewed from time to time. What are the
acts of administration which may be renewed from time to
time? For example, the co-ownership, A and B own a hotel
and they want to change the manager, that’s an act of
administration.
3) Those that have transitory effect, that is, do not bind the co-
ownership for a long time in the future;
4) Those that do not give rise to a real right over the thing
owned in common;
5) Those, which even if called an alteration, do not affect the
substance or nature of the thing.
JAVIER vs. JAVIER
GR No. 2812. October 18, 1906
The ownership of a house by one person, and of the land
on which it stands by another, does not create a
community of property.
If a co-owner has constructed an improvement on the
land without the consent of the other co-owners, he
shall have no right of reimbursement.
FACTS
Since 1860, a parcel of lot locate in Malate, Manila was
owned by Manuel Javier, father of petitioner LONGINOS JAVIER
and respondent SEGUNDO JAVIER. Since then, it had been occupied
by his children and that no one of these children ever made any
claim to the ownership thereof, and no one of them ever occupied
the property as owner. Thereon, SEGUNDO and his wife ISABEL
HERNANDEZ constructed a house thereon.
Subsequently, LONGINOS, as administrator of the estate of his
father filed an action in court contesting ownership over the house
and lot. The lower court ruled that the land belonged to LONGINOS
as administrator of the estate of his father while the house was
owned by respondents ISABEL HERNANDEZ and her son MANUEL
RAMON JAVIER. Judgment was rendered in favor of LONGINOS for
the possession of the property but SEGUNDO ET AL. were given a
reasonable opportunity to remove the house.
On appeal, SEGUNDO ET AL. contended that the case should
be decided by an application of the principles of law relating to the
community of property because a community of property existed
as the house was owned by them while the land by the LONGINOS.
They also declared that they were possessors in good faith and that
they should be reimbursed for the construction of the house.
ISSUES
(1) Whether or not there is a co-ownership when the house
and the land are owned by different persons.
(2) Whether or not SEGUNDO ET AL. was entitled for
reimbursement for the construction of the house.
RULING
(1) NO. The ownership of a house by one person, and of the land
on which it stands by another does not create a community of
property Such a condition of affairs did not create a community of
property. If, on the other hand, it was meant that community of
property existed because the land itself belonged to the heirs of
Manuel Javier, and that two of the respondents were such heirs, it
can be said that the decision of the court below was fully as favorable to the
appellants as it could be.
(2) NO, he should not be entitled for reimbursement of the house he
constructed thereon.
SEGUNDO could not claim for reimbursement a builder in good faith
since he was in bad faith as he and his wife had always believed that the land
did not belong to them but belonged to the estate of Manuel Javier.
He could not also be reimbursed under Art. 491 (then Art. 397) of the
Civil Code, which relates to improvements made upon the common property
by one of the co-owners. The burden of proof was on SEGUNDO ET AL. to
show that the house was built with the consent of their co-tenants.
According to Manresa, Even if a tacit consent was shown, this would not
require such co-tenants to pay for the house.
ARTICLE 492: For the administration and better employment of the
thing owned in common, the resolutions of the majority of the co-
owners shall be binding.
There shall be no majority unless the resolution is
approved by the co-owners who represent the controlling interest in
the object of the co-ownership.
Should there by no majority, or should the resolution of
the majority be seriously prejudicial to those interested in the
property owned in common, the court, at the instance of an
interested party, shall order such measures as it may deem proper,
including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to one
of the co-owners and the remainder is owned in common, the
preceeding provisions shall apply only to the part owned in
common.
 The phrase "administration and better enjoyment" contemplates
acts or decisions for the common benefit of all the co-owners and
not for the benefit of only one of the co-owner or some of them.
 Financial majority refers to those who represent a controlling
interest in the object of co-ownership. So you look at the
percentage of ownership of the particular co-owner.
 The general rule is a financial majority's decision is sufficient, only
that it requires notice to such minority. Exception, in cases of
extreme urgency and the impracticability of giving notice, as one
of the co-owners is nowhere to be found.
Now, when may the court interfere with the division spend
for improvement or embellishment?
1. when there is no financial majority or
according to provision; or
2. even if there is financial majority, if the
resolution of the majority is seriously
prejudicial to those interested in the property
owned in common.
 However, the court cannot interfere motu propio without any
case filed by an interested party.
ARTICLE 493: Each so-owner shall have the full ownership of his
part, and of the fruits and benefits pertaining thereto and he may
therefore alienate, assign, or mortgage it, and even substitute
another person in its enjoyment, except when the personal rights
are involved. But the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which
maybe allotted to him in the division upon the termination of the
co-ownership.
 What are the rights of the co-owner with respect to his ideal
share?
1. He has full ownership of his part.
2. He has full ownership of the fruits of their part and the benefits.
3. Each co-owner may alienate, assign, or mortgage his undivided
share. When a co-owner alienates his undivided share to a
stranger, the other co-owner has the right of legal redemption.
4. He may even substitute another person in its enjoyment except
when personal rights are involved. For example, my 1/3 share
shall be given to my son, I can do that.
 5. He may exempt himself from necessary expenses and
taxes by renouncing part of his interest in the co-
ownership.
 Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the
alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be
allotted to him in the division upon the termination of
the co-ownership.
MERCADO vs. LIWANAG
GR No. L-14429. June 30, 1962
What a co-owner may dispose of under Article 493 is
only his undivided aliquot share, which shall be limited
to the portion which may be allotted to him upon the
termination of the co-ownership. He has no right to
divide the property into parts and then convey one part
by metes and bounds.
FACTS
Petitioner RAMON MERCADO and his wife, BASILIA
MERCADO, as co-owners, owned a parcel of land in Quezon City,
with an area of 4,392 sq. m. Said land was registered in both their
names. In 1956, without the consent of his wife, RAMON
MERCADO sold half of the said land with an area of 2,196 sq. m. at
P70 per sq. m. to respondent PIO D. LIWANAG. A Deed of Sale was
subsequently executed which described the sold property in metes
and bounds.
When LIWANAG registered the Deed of Sale, he found out
that out of the total area of 4,392 sq. m., an area consisting of 391
sq. m. was expropriated by the National Power Corporation
sometime in 1953 at a price of P10 per sq. m. Pursuant to the Deed
of Sale, aTCT was issued in the name of LIWANAG and BASILIA
MERCADO.
Later, RAMON and BASILIA MERCADO filed an action in court
to annul the Deed of Sale based on Art. 493 of the Civil Code. For
his part, LIWANAG submitted a receipt of a check signed by
RAMON MERCADO and a promissory note. However, RAMON
MERCADO disclaimed payment and receipt of such check and
promissory note, the check being un-encashed and is still in the
possession of one Atty. de Gracia.
The trial court however, held that under Art. 493 of the Civil
Code, the sale in question was valid and so it dismissed the
complaint.
Hence, this appeal. SPOUSES MERCADO alleged that the Deed
of Sale sought to be annulled because RAMON MERCADO disposed
of a divided and determinate half of the land under co-ownership
when in the TCT, only stated that what was merely sold was an
undivided half-share of the property
ISSUE
Whether or not a Deed of Sale may be validly annulled.
RULING
NO, the Deed of Sale may not be validly annulled.
What a co-owner may dispose of under Article 493 is only his
undivided aliquot share, which shall be limited to the portion which
may be allotted to him upon the termination of the co-ownership.
He has no right to divide the property into parts and then convey
one part by metes and bounds.
In the deed of sale, MERCADO transferred and conveyed to
LIWANAG his title and interests on half of the portion of said
property in metes ad bounds. Nevertheless, upon registration of
the sale, the new TCT did not reproduce the description in the
instrument but carried the names of PIO D. LIWANAG and BASILIA
MERCADO as co-owners pro-indiviso.
As far as Basilia Mercado is concerned she retained in all their integrity
her rights as co-owner which she had before the sale, and consequently she
had no cause to complain. Much less has Ramon Mercado, for it was he who
was responsible for whatever indicia there may be in the deed of sale that a
determinate portion of the property was being sold.
The title is the final and conclusive repository of the rights of the new
co-owners. The question of whether or not the Deed of Sale should be
annulled must be considered in conjunction with the title issued pursuant
thereto. Since, according to the title, what LIWANAG acquired by virtue of
the sale is only an undivided half-share of the property, which under the law
the vendor RAMON MERCADO had the absolute right to dispose of, the trial
court committed no error in dismissing the action. The end-result of the
transaction is in accordance with Article 493 of the Civil Code.
ACEBEDO vs. ABESAMIS
GR No. 102380. January 18, 1993
It is within the jurisdiction of the probate court to approve the sale
of properties of a deceased person by his prospective heirs before
final adjudication.
An heir can sell his ideal share including the rights, interests, or
participation he may have in the property held in common under
administration.
FACTS
The late Felix Acebedo left an estate consisting of several real estate
properties located in Quezon City and Caloocan City, with a conservative
estimated value of about P30 million. His estate has several unsettled claims.
He was succeeded by eight heirs. Two of whom, were petitioners
HERODOTUS (administrator) and DEMOSTHENES (PETITIONER HEIRS) and the
others, private respondents MIGUEL, ALEXANDER, NAPOLEON, RIZALINO,
REPUBLICA and FILIPINAS (RESPONDENT HEIRS), all of whom were surnamed
ACEBEDO.
In 1989, due to the prolonged pendency of the settlement of the estate
of the deceased before the respondent court under JUDGE BERNARDO P.
ABESAMIS for 16 years, RESPONDENT HEIRS filed a Motion for Approval of
Sale. The said sale involved the properties, which formed part of the estate.
The consideration for said lots was twelve P12 million and by that time, they
already had a buyer. In the motion, it was also alleged by the RESPONDENT
HEIRS that they had already received their proportionate share of the P6
million paid by the buyer, YU HWA PING, as earnest money. They also
averred that the remaining balance of P6 million was more than enough to
pay the unsettled claims against the estate. Thus, they prayed for the Court
to direct the administrator, HERODOTUS ACEBEDO to sell the properties, to
pay all the claims against the estate with the balance of P6 million, and to
distribute the residue among the Heirs in final settlement of the Estate.
However, Petitoner-administrator HERODOTUS ACEBEDO, interposed
an Opposition to Approval of Sale, wherein he contended that some of the
real properties left by their father was sold at a shockingly low price without
the consent of the court. PETITIONER HEIRS also moved that they be given 45
days to look for a buyer who was willing to pay the properties at a price
higher than P12 million. However, during hearing, the PETITIONER HEIRS did
not find any buyer offering better terms that they asked for a 30-day
extension.
After having miserably failed to find a better buyer for 7 months,
Petitoner-administrator HERODOTUS ACEBEDO filed another Opposition to
Approval of Sale. The court issued an order denying the petition of the
RESPONDENT HEIRS to sell the properties in favor of YU HWA PING.
Later, the court issued an order resolving to call the parties to a
conference but during the conference, still, the parties were unable to arrive
at an agreement. Later, it was agreed by the he parties that the heirs be
allowed to sell their shares of the properties to YU HWA PING for the price
already agreed upon while herein PETITIONER HEIRS negotiated for a higher
price with YU HWA PING.
Subsequently, PETITIONER HEIRS instead filed a Supplemental
Opposition to the approval of the Deed of Conditional Sale. However, the
Court in its decision, approved the Conditional Sale executed by the
REPONDENT HEIRS in favor of YU HWA PING, pertaining to their respective
shares in the properties. Petitioner-administrator Herodotus Acebedo was
then ordered to sell the remaining portions of the said properties also in
favor of Yu Hwa Ping at the same price.
 Pending resolution the Motion for Execution of the Order filed
by RESPONDENT HEIRS, PETITIONER HEIRS filed a petition for
certiorari. They maintained that said Conditional Sale was null and
void for lack of prior court approval.
ISSUES
(1) Whether or not the lower court acting as a probate court
may validly issue an order approving the Deed of Conditional Sale
executed by RESPONDENT HEIRS without prior court approval and
to order PETITIONER-ADMINISTRATOR to sell the remaining portion
of said properties.
(2) Whether or not an heir can sell whatever right, interest, or
participation he may have in the property under administration r
RULING
(1) YES. it is within the jurisdiction of the probate court to
approve the sale of properties of a deceased person by his
prospective heirs before final adjudication. This authority is
necessarily included in its capacity as a probate court. Therefore, it
is clear that the probate court in the case at bar, acted within its
jurisdiction in issuing the Order approving the Deed of Conditional
Sale.
The position maintained by herein petitioners that said
conditional sale is null and void for lack of prior court approval was
erroneous. The sale precisely was made conditional, the condition
being that the same should first be approved by the probate court.
This is a matter, which comes under the jurisdiction of the
probate court.
(2) YES, an heir can sell whatever right, interest, or participation
he may have in the property under administration. The right of an
heir to dispose of the decedent's property, even if the same is
under administration, is based on the Civil Code provision stating
that the possession of hereditary property is deemed transmitted
to the heir without interruption and from the moment of the death
of the decedent, in case the inheritance is accepted. Where there
are however, two or more heirs, the whole estate of the decedent
is, before its partition, owned in common by such heirs.
The Civil Code, under the provisions on co-ownership, further
qualifies this right. Although it is mandated that each co-owner
shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and thus may alienate, assign or
mortgage it, and even substitute another person in its enjoyment,
the effect of the alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be allotted to
him in the division upon the termination of the co-ownership. In
other words, the law does not prohibit a co-owner from selling,
alienating or mortgaging his ideal share in the property held in
common.
BAILON vs. CA
GR No. L-18178. April 15,1988
Since a co-owner is entitled to sell his undivided share, a
sale of the entire property by one co-owner without the
consent of the other co-owners is not null and void.
However, only the rights of the co-owner-seller are
transferred, thereby making the buyer a co-owner of the
property.
FACTS
A parcel of land with an area of 48,849 square meters was
covered by an OCT in the names of Rosalia, Gaudencio, SABINA,
Bernabe, Nenita and Delia Bailon, as co-owners, each with a 1/6
share. Gaudencio and Nenita were then dead, the latter being
represented in this case by her children Luz, Emma and Nilda.
Bernabe went to China in 1931 and had not been heard from since
then.
In 1948, Rosalia and Gaudencio Bailon sold a portion of the
said land consisting of 16,283 square meters to Donato Delgado. A
year after, Rosalia alone sold the remainder of the land consisting
of 32,566 square meters to Ponciana V. Aresgado de Lanuza. On
the same date, Lanuza acquired from Delgado the 16,283 sq. m. of
land, which the latter had earlier acquired from Rosalia and Gaudencio. In
1975, John Lanuza, acting under a special power of attorney given by his
wife, Ponciana V. Aresgado de Lanuza, sold the two parcels of land to
CELESTINO AFABLE.
In all these transfers, it was stated in the deeds of sale that the land was
not registered under the provisions of Act No. 496 when the fact was that it
was.
In 1981, petitionners DELIA BAILON-CASILAO, LUZ PAULINO-ANG,
EMMA PAULINO-YBANEZ, NILDA PAULINO-TOLENTINO, and SABINA BAILON
(BAILONs) filed a case for recovery of property and damages with notice of lis
pendens herein private respondent, CELESTINO AFABLE.
In his defense, AFABLE claimed that he had acquired the land in
question through prescription and contended that the BAILONs were guilty of
laches. He later filed a third-party complaint against Rosalia for damages
allegedly suffered as a result of the sale to him of the land.
After trial, the lower court declared AFABLE as a co-owner of the land,
having validly bought 2/6 respective undivided shares of Rosalia and
Gaudencio. It also ordered the termination of the co-ownership and the
delineation of the specific part of each owner though a Geodetic Engineer.
On appeal, the respondent Court of Appeals affirmed the decision of the
lower court. Hence, this appeal.
ISSUE
Whether or not the sale of the entire property made by 2 co-owners
Rosalia and Gaudencio was invalid beause it was made without the consent of
the other co-owners.
RULING
NO. The rights of a co-owner of a certain property are clearly specified
in Article 493 of the Civil Code.
Even if a co-own sells the whole property as his, the sale will affect only
his own share but not those of the other co-owners who did not consent to
the sale. This is because under Art. 493, the sale or other disposition affects
only his undivided share and the transferee gets only what would correspond
to his grantor in the partition of the thing owned in common.
Consequently, by virtue of the sales made by Rosalia and Gaudencio,
which were valid with respect to their proportionate shares, and the
subsequent transfers which culminated in the sale to private respondent
AFABLE, the latter thereby became a co-owner of the disputed parcel of land.
The sales produced the effect of substituting the buyers in the enjoyment
thereof.
Hence, since a co-owner is entitled to sell his undivided share, a sale of
the entire property by one co-owner without the consent of the other co-
owners is not null and void. However, only the rights of the co-owner-seller
are transferred, thereby making the buyer a co-owner of the property.
Thus, it is now settled that the appropriate recourse of co-owners in
cases where their consent were not secured in a sale of the entire property
as well as in a sale merely of the undivided shares of some of the co-owners
is an action for partition. Neither recovery of possession nor restitution can
be granted since the defendant buyers are legitimate proprietors and
possessors in joint ownership of the common property claimed.
SPOUSES CRUZ vs. LEIS
GR No. 125233. March 9, 2000
The right of repurchase may be exercised by a co-owner with
respect to his share alone. Although Gertrudes redeemed the
property in its entirety, shouldering the expenses therefor, that did
not make her the owner of all of it.
FACTS
Adriano Leis and Gertrudes Isidro were married in1923. In 1955,
Gertrudes acquired from the then Department of Agriculture and Natural
Resources (DANR), a parcel of land with an area of 100 sq. m. situated in
Marikina, Rizal. The Deed of Sale, Gertrudes was described as a widow.
Hence, a TCT was issued in her name, which described her as a widow.
In 1973, Adriano died intestate. In 1985, Gertrudes obtained a P15,000
loan from petitioners SPOUSES ALEXANDER AND ADELAIDA CRUZ at 5%
interest. The loan was secured by the a mortgage over the Rizal property.
Gertrudes however, failed to pay the loan on the due date.
Unable to pay her obligation, Gertrudes in 1986 executed 2 contracts in
favor of ALEXANDER CRUZ. The first was a Kasunduan, which the parties
conceded was a pacto de retro sale, granting Gertrudes 1 year within which
to repurchase the property. The was a Kasunduan ng Tuwirang
Bilihan, a Deed of Absolute Sale covering the same property for the
price of P39,083, the same amount stipulated in the Kasunduan.
For failure of Gertrudes to repurchase the property, ownership
thereof was consolidated in the name of ALEXANDER CRUZ. In
1987, A TCT was issued in his name, canceling the TCT in the name
of Gertrudes.
In 1987 Gertrudes died. Thereafter, her heirs, herein private
respondents, ELEUTERIO LEIS, RAYMUNDO LEIS, ANASTACIO L.
LAGDANO, LORETA L. CAYONDA (LEIS ET AL.) received demands
from SPOUSES CRUZ to vacate the premises as they were already
new owners of the property.
In response, LEIS ET AL. filed an action seeking the
nullification of the contracts of sale executed by their mother
Gertrudes in favor of petitioner ALEXANDER CRUZ, as well as the
TCT subsequently issued in the name of the latter. They claimed
that the contracts were vitiated by fraud as Gertrudes was illiterate
and already 80 years old at the time of the execution of the
contracts. They also contended that the price for the land was
insufficient as it was sold lower than its fair market value. They
added that the property subject of the sale was conjugal and,
consequently, its sale without the knowledge and consent of
private respondents was in derogation of their rights as heirs.
The trial court rendered a decision in favor of LEIS ET AL. It
concluded that the land was conjugal property thus Gertrudes
could only sell to SPOUSES CRUZ her one-half share in the property.
However, it also ruled that there was no fraud in the execution of
the contract but nullified the same because the SPOUSES CRUZ
failed to comply with certain procedural requirements in its
registration. The same decision was affirmed when the case was
appealed with the Court of Appeals.
Hence, the SPOUSES CRUZ filed a petition for review with the
Supreme Court. They alleged that the property was not conjugal
but was owned exclusively by Gertrudes as described in the TCT.
They also averred that assuming the property was conjugal, the
same became exclusive since Gertrudes mortgaged the same
property but redeemed the same in 1983.
ISSUE
Whether or not the property was exclusively owned by
Gertrudes since she redeemed the property over the exclusion of
her co-owners.
RULING
NO. The redemption of the land by Getrudes did not
terminate the co-ownership nor give her title to the entire land
subject of the co-ownership.
The right of repurchase may be exercised by a co-owner with
respect to his share alone. Although Gertrudes redeemed the
property in its entirety, shouldering the expenses therefor, that did
not make her the owner of all of it. In other words, it did not put to
end the existing state of co-ownership. Under Art. 493, a co-owner
such as Gertrudes could only dispose of her share in the property
owned in common.
However, being that neither Gertrudes nor her co-owners,
LEIS ET AL. were able to redeem the same within the one-year
period stipulated in the Kasunduan, ownership then remained with
the SPOUSE CRUZ. The essence of a pacto de retro sale is that title
and ownership of the property sold are immediately vested in the
vendee a retro, subject to the resolutory condition of repurchase
by the vendor a retro within the stipulated period. Failure thus of
the vendor a retro to perform said resolutory condition vests upon
the vendee by operation of law absolute title and ownership over
the property sold.
SPOUSES DEL CAMPO vs. CA
GR No. 108228. February 1, 2001
A co-owner is entitled to sell his undivided share in the
property held in common.
However, a co-owner cannot alienate more than his share in the
co-ownership.
If a co-owner had an undisturbed possession for a considerable
number of years, it had the effect of a partial partition of the co-
owned property, which entitled the possessor to the definite
portion which he occupies.
FACTS
Lot 162 of the Cadastral Survey in Pontevedra, Capiz, consisting of
27,179 sq. m. were co-owned by the 8 Bornales brothers and sisters, the
same registered in their names. Said lot was divided in aliquot shares among
them.
In 1940, SALOME, one of the co-owners sold part of her 4/16 share in
for P200.00 to Soledad Daynolo. In the Deed of Absolute Sale signed by
SALOME and two other co-owners, CONSORCIA and ALFREDO, the portion of
the sold lot was delineated in metes and bounds.
Thereafter, Soledad immediately took possession of the land and built
a house thereon. A few years later, she and her husband, Simplicio Distajo,
mortgaged the property as security for a P400 debt to respondent JOSE
REGALADO, SR.
In 1948, 3 of the 8 co-owners, specifically SALOME, CONSORCIA and
ALFREDO sold 24,993 sq. m. of Lot 162 to REGALADO, SR.
In 1951, Simplicio Distajo, heir of Soledad Daynolo who had since died,
paid the mortgage debt and redeemed the mortgaged portion the lot from
REGALADO, SR. The latter, in turn, executed a Deed of Discharge of Mortgage
in favor of Soledad’s heirs. On same date, the heirs of Soledad sold the
redeemed portion for P1,500 to herein petitioners, SPOUSES MANUEL DEL
CAMPO AND SALVACION QUIACHON (SPOUSES DEL CAMPO).
Meanwhile, REGALADO, SR. caused the transfer of the title in his name
and subdivided the entire property into smaller lots, each covered by a
respective title in his name. One of these small lots is Lot No. 162-C-6 with an
area of 11,732 sq. m.
In 1987, the SPOUSES DEL CAMPO brought a complaint for repartition,
resurvey and reconveyance against the heirs of the now deceased
REGALADO, SR. They claimed that they owned an area of 1,544 square
meters located within Lot 162-C-6, which was erroneously included in the
issued in the name of Regalado. They alleged that they occupied the disputed
area as residential dwelling ever since they purchased the property from the
Distajos way back in 1951. They also declared the land for taxation purposes
and paid the corresponding taxes.
In 1990, however, the trial court dismissed the complaint. It held that
while Salome could alienate her pro-indiviso share in Lot 162, she could not
validly sell an undivided part thereof by metes and bounds to Soledad, from
whom petitioners derived their title. The trial court also reasoned that
petitioners could not have a better right to the property even if they were in
physical possession of the same and declared the property for taxation
purposes, because mere possession cannot defeat the right of the Regalados
who had a Torrens title over the land. The same judgment was affirmed by
the Court of Appeals on appeal.
Hence, this petition.
ISSUES
(1) Whether or not a sale by co-owner Salome of a portion of an
undivided property held in common in favor of Soledad was valid.
(2) Whether or not co-owners Salome, Consorcia and Alfredo could
validly sell the shares of the common property pertaining to Soledad.
(3) Whether or not the SPOUSES DEL CAMPO may rightfully claim the
specific 1,544 sq. m. located within Lot 162-C-6.
RULING
(1) NO. The mere fact that Salome purportedly transferred a definite
portion of the co-owned lot by metes and bounds to Soledad, did not per se
render the sale a nullity. This much is evident under Article 493 of the Civil
Code and pertinent jurisprudence on the matter.
Salome’s right to sell part of her undivided interest in the co-owned
property is absolute in accordance with the well-settled doctrine that a co-
owner has full ownership of his pro-indiviso share and has the right to
alienate, assign or mortgage it, and substitute another person in its
enjoyment. Since Salome’s clear intention was to sell merely part of her
aliquot share in Lot 162, no valid objection can be made against it and the
sale can be given effect to the full extent.
In the case at bar, the transaction entered into by Salome and Soledad
could be legally recognized in its entirety since the object of the
sale did not even exceed the ideal shares held by the former in the
co-ownership. In such sale, Soledad stepped into the shoes of the
Salome as co-owner and acquired a proportionate abstract share in
the property held in common.
(2) NO. Based on the principle that “no one can give what he
does not have,” Salome, Consorcia and Alfredo could not legally sell
the shares pertaining to Soledad since a co-owner cannot alienate
more than his share in the co-ownership.
Being that the sale entered into by Salome and Soledad did not
even exceed the ideal shares held by the former in the co-
ownership, it was deemed valid. It follows then that Salome,
Consorcia and Alfredo could not have sold the entire Lot 162 to
Jose Regalado, Sr. in 1948 because at that time, the ideal shares
held by the three co-owners/vendors were equivalent to only
10/16 of the undivided property less the aliquot share previously
sold by Salome to Soledad.
Even if a co-owner sells the whole property as his, the sale will
affect only his own share but not those of the other co-owners who
did not consent to the sale. Since a co-owner is entitled to sell his
undivided share, a sale of the entire property by one co-owner will
only transfer the rights of said co-owner to the buyer, thereby
making the buyer a co-owner of the property.
In this case, Regalado merely became a new co-owner of Lot
162 to the extent of the shares which Salome, Consorcia and
Alfredo could validly convey. Soledad retained her rights as co-
owner and could validly transfer her share to her heirs in 1951.
(3) YES. The area subject matter of this petition had already been
effectively segregated from the ‘mother lot’ even before title was
issued in favor of REGALADO.
The SPOUSES DEL CAMPO enjoyed uninterrupted possession
thereof for a total of 36 years until the complaint was filed. Prior to
that, at no instance did REGALADO nor his HEIRS question the
SPOUSES DEL CAMPO’s right over the land in dispute.
Such undisturbed possession had the effect of a partial
partition of the co-owned property, which entitled the possessor to
the definite portion which he occupies. Conformably, petitioners
are entitled to the disputed land, having enjoyed uninterrupted
possession thereof for a total of 49 years up to the present.
SANCHEZ vs. CA
GR No. 152766. June 20, 2003
Although assigned an aliquot but abstract part of the
property, the metes and bounds of LILIAN’s lot has not
been designated. As she was not a party to the Deed of
Absolute Sale voluntarily entered into by the other co-
owners, her right to 1/6 of the property must be
respected.
FACTS
Petitioner LILIAN SANCHEZ, constructed a house on a 76-
square meter lot owned by her parents-in-law. The lot was
registered in the name of 6 co-owners: Eliseo, Sanchez, LILIAN,
Nenita, Susana and Felipe, all surnamed Sanchez.
In 1995, the lot was registered in the name of private
respondent VIRGINIA TERIA by virtue of a Deed of Absolute Sale
supposed to have been executed by all 6 co-owners in her favor.
However, LILIAN claimed that she did not affix her signature on the
document. For her subsequent refusal to vacate the said lot, TERIA
filed an action for recovery of possession of the said lot.
The MeTC ruled in favor of TERIA declaring that the sale was
valid only to the extent of 5/6 of the lot and the other 1/6
remaining as the property of LILIAN, on account that her signature
in the Deed of Absolute Sale was forged.
In 1998, the MeTC issued an order for the issuance of a writ of
execution in favor of TERIA as the buyer of the property. A year
later, a Notice to Vacate was served by the sheriff upon LILIAN who
however refused to heed the Notice. In 1999, TERIA demolished
LILIAN’s house without any special permit of demolition from the
court. Due to the demolition of her house, LILIAN was forced to
inhabit the portion of the premises that used to serve as the
house’s toilet and laundry area.
LILIAN filed her Petition for Relief from Judgment with the RTC on the
ground that she was not bound by the inaction of her counsel who failed to
submit petitioner’s appeal memorandum. However, the RTC denied the
Petition and the subsequent Motion for Reconsideration. She subsequently
filed a petition for certiorari with the Court of Appeals but it was denied, the
same with a following Motion for Reconsideration.
Hence, this appeal.
ISSUE
Whether or not LILIAN SANCHEZ could validly claim ownership over her
1/6 undivided share in the property.
RULING
YES. Being that LILIAN was not a part of the Deed of Sale, she was not
bound by it. Hence her 1/6 share should be respected.
In co-ownership, the relationship of such co-owner to the other co-
owners is fiduciary in character and attribute. Whether established by law or
by agreement of the co-owners, the property or thing held pro-indiviso is
impressed with a fiducial nature so that each co-owner becomes a trustee for
the benefit of his co-owners and he may not do any act prejudicial to the
interest of his co-owners.
Thus, the legal effect of an agreement to preserve the properties in co-
ownership is to create an express trust among the heirs as co-owners of the
properties. Co-ownership is a form of trust and every co-owner is a trustee
for the others.
Before the partition of a land or thing held in common, no individual or
co-owner can claim title to any definite portion thereof. All that the co-owner
has is an ideal or abstract quota or proportionate share in the entire land or
thing.
Article 493 of the Civil Code gives the owner of an undivided interest in
the property the right to freely sell and dispose of it, i.e., his undivided
interest. He may validly lease his undivided interest to a third party
independently of the other co-owners. But he has no right to sell or alienate
a concrete, specific or determinate part of the thing owned in common
because his right over the thing is represented by a quota or ideal portion
without any physical adjudication.
Although assigned an aliquot but abstract part of the property, the
metes and bounds of LILIAN’s lot has not been designated. As she was not a
party to the Deed of Absolute Sale voluntarily entered into by the other co-
owners, her right to 1/6 of the property must be respected. Partition needs
to be effected to protect her right to her definite share and determine the
boundaries of her property. Such partition must be done without prejudice
to the rights of TERIA as buyer of the 5/6 portion of the lot under dispute.
Note:
Definitions of Co-ownership
Sancher Roman: It is “the right of common dominion
which two or more persons have in a spiritual part of a thing,
not materially or physically divided.
Manresa: It is the “manifestation of the private right of
ownership, which instead of being exercised by the owner in an
exclusive manner over the things subject to it, is exercised by
two or more owners and the undivided thing or right to which it
refers is one and the same.”
The characteristics of co-ownership are:
(a) plurality of subjects, who are the co-owners,
(b) unity of or material indivision, which means that there
is a single object which is not materially divided, and
which is the element which binds the subjects, and
(c) the recognition of ideal shares, which determines the
rights and obligations of the co-owners.
DE GUIA vs. CA
GR No. 120864. October 8, 2003
(refer to Page 3)
HEIRS OF SPOUSES BALITE vs. LIM
GR No. 152168. December 10, 2004
 When a co-owner sold a concrete portion of an
undivided property held in common, it did not per se
render the sale void. The sale is valid, but only with
respect to the aliquot share of the selling co-owner.
FACTS
The spouses Aurelio and Esperanza Balite were owners of a
registered parcel of land, located at Catarman, Northern Samar,
with an area of 17,551 sq. m. In 1985, Aurelio died intestate.
Hence, by inheritance, said property was then co-owned by his
wife Esperanza and their children, herein petitioners ANTONIO
BALITE, FLOR BALITE-ZAMAR, VISITACION BALITE-DIFUNTORUM,
PEDRO BALITE, PABLO BALITE, GASPAR BALITE, CRISTETA (TITA)
BALITE and AURELIO BALITE, JR. (HEIRS OF BALITE). Each of then
inherited an undivided share of 9,751 sq. m.
Later, Esperanza became ill and was in dire need of money
for her hospital expenses. She, through her daughter, CRISTETA,
offered to sell to respondent RODRIGO LIM, her undivided share
for the price of P1 million. A Deed of Absolute Sale was executed,
wherein it was stated therein that the property sold to LIM was an
area of 10,000 sq. m. A Joint Affidavit was also executed, wherein
it was agreed that P30,000 should be paid by LIM and the
remaining purchase price be paid in installments. Only Esperanza
and two of her children, namely, ANTONIO and CRISTETA knew
about the said transaction.
A Geodetic Engineer conducted a subdivision survey of the
property and prepared a Sketch Plan. Said Sketch Plan was signed
by LIM and Esperanza. Thereafter, LIM took actual possession of
the property and introduced improvements thereon.
When the other heirs, GASPAR, VISITACION, FLOR, PEDRO
and AURELIO, JR. learned of the sale, they wrote a letter to the
Register of Deeds saying that they were not informed of the sale
of a portion of the said property by their nor did they give their
consent thereto. They then requested that the registration of the
property in the name of LIM be held in abeyance until the validity
of the sale had already been cleared.
Later, ANTONIO received from LIM, the amount of P30,000 in
partial payment of the property and signed a Receipt for the said
amount. Esperanza signed a letter addressed to LIM informing the
latter that her children did not agree to the sale of the property to
him and that she was withdrawing all her commitments until the
validity of the sale is finally resolved. However, a few days later,
Esperanza died intestate and was survived by her children.
In 1997, the HEIRS OF BALITE filed a complaint against
Rodrigo for the Annulment of Sale, Quieting of Title, Injunction
and Damages. In the meantime, the Registry of Deeds had issued a
TCT under the name of LIM over said property as LIM had been
granted a writ of mandamus against the former for its refusal to
register the property in his name. Subsequently, LIM secured a
loan from the Rizal Commercial Banking Corporation in the
amount of P2 million and executed a Real Estate Mortgage over
the subject property as security therefor.
The trial court dismissed the Complaint filed by the HEIRS OF
BALITE. It held that, pursuant to Art. 493 of the Civil Code, a co-
owner has the right to sell his/her undivided share. The sale made
by a co-owner is not invalidated by the absence of the consent of
the other co-owners. Hence, the sale by Esperanza of the 10,000-
sq. m. portion of the property was valid; the excess from her
undivided share should be taken from the undivided shares of
Cristeta and Antonio, who expressly agreed to and benefited from
the sale.
On Appeal, with the court of Appeals, judgment was still
unfavorable to them. Hence, this appeal.
ISSUE
Whether or not the Deed of Sale executed by co-owner
Esperanza was valid despite absence of consent of some of the
other co-owners.
RULING
YES, it was valid but only insofar as the pro indiviso share of
Esperanza was concerned.
Art. 493 of the Civil Code gives the owner of an undivided
interest in the property the right to freely sell and dispose of such interest.
The co-owner, however, has no right to sell or alienate a specific or
determinate part of the thing owned in common, because such right over the
thing is represented by an aliquot or ideal portion without any physical
division. Nonetheless, the mere fact that the deed purports to transfer a
concrete portion does not per se render the sale void. The sale is valid, but
only with respect to the aliquot share of the selling co-owner. Furthermore,
the sale is subject to the results of the partition upon the termination of the
co-ownership.
Hence, the transaction between Esperanza and LIM could be legally
recognized only in respect to the former’s pro indiviso share in the co-
ownership. As a matter of fact, the Deed of Absolute Sale executed between
the parties expressly referred to the 10,000-square-meter portion of the land
sold to respondent as the share of Esperanza in the conjugal property. Her
clear intention was to sell merely her ideal or undivided share in it. No valid
objection can be made against that intent. Clearly then, the sale can be given
effect to the extent of 9,751 square meters, her ideal share in the property as
found by both the trial and the appellate courts.
ARTICLE 494: No co-owner shall be obliged to remain in the co-
ownership. Each co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the partition of
the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided
for 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 twenty 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 so long as he expressly or impliedly
recognizes the co-ownership.
 What is the rationale behind the general rule?
1) The law discourages co-ownership;
2) To avoid conflicts in management; and
3) More significantly the disposition or enjoyment of the
thing owned in common is subject to the desires of all
the co-owners
GENERAL RULE: No co-owner shall be obliged to remain in the co-ownership.
He may demand that his share may be taken out from the co-ownership. Any
co-owner may demand partition anytime.
EXCEPT:
1. If there is a contract prohibiting partition for a certain period of
time. It is the contract which shall prevail under Art. 494, upon the
expiration of the period, partition may be demanded
 The law allows non-partition not exceeding 10 years but this can
be extended for another 10 years upon the expiration of the
period.
 NB: there is no automatic renewal.
 If the agreement is more than 10 years, then the agreement is
void as to the excess.
 If the agreement is perpetual, valid only up to 10 years.
 If the agreement is subject to a resolutory condition, the
agreement ends upon the fulfillment of the condition provided it
does not exceed 10 years
2. By the existence of a will, in cases of donation or a testamentary
succession.
3. When the prohibition is prohibited by law.
4. Physical partition would render the property unserviceable.
Physical partition is not allowed but there are ways of dividing the
property.
5. Legal nature of the common property does not allow partition.
But this is not absolute because there are ways of dividing the
property.
Prescription:
GR: prescription against a co-owner does not lie. Ceniza vs. CA 181
SCRA 552
Exceptions:
1) When a co-owner gives notice to the co-
owners that he is repudiating the co-
ownership and that he is claiming ownership
of the entire property.
2) The requirement of the open, continuous,
public and adverse possession for a period of
time required by law must be met. (30
years). So there must first be repudiation and
the prescriptive period is met.
REQUISITIES OF REPUDIATION:
1. He must make known to the other co-owners that he is
definitely repudiating the co-ownership. He is claiming
complete ownership over the entire property. He does
not recognize co-ownership. Hence, he must make it
known to the other co-owner.
2. There must be evidence of repudiation by the owner
and knowledge on the part of the other co-owners.
3. The other requirements of prescription must exist.
OCEAN (open, continuous, exclusive, adverse, notorious)
possession over the property.
4. The period of prescription starts to run from the time of
repudiation.
 When there is repudiation, it means that he is no longer
recognizing the co-ownership and he is claiming
ownership over the entire property and so that his
possession must be adverse.
 Adverse means that he does not recognize ownership in
somebody else, particularly the co-owners.
 Notorious, open: making known to the public that he is
the owner of the property to the exclusion of the other
co-owners
Aguilar vs. CA 227 SCRA 470
Fx: In 1969, Brothers Virgilio and Semen purchased a house and lot
where his father would live for the rest of his years in a peaceful
environment. They signed a memorandum agreeing that their
shares are equal and that Semen could live in the house as long as
he would take care of the needs of his father. In 1974, their father
died. Consequently, in 1975 Virgilio demanded from Semen to
vacate the premises so that the property could be sold to third
parties and the proceeds divided between them in accordance with
their respective shares. S refused, so in '79, Virgilio instituted an
action against S to compel the sale, praying for the payment of
monthly rentals beginning 1975. The court rendered judgment
ordering S to vacate the house so that the same may be sold, and
ordered to him to pay rentals from 1975 upto the date of the
decision.
Issue: W/N court was correct in ordering Semen to vacate the
property and the payment of rents.
Held: SC said lower court was correct except as to the payment of
rents (kailangan mag start). Art. 494 corollary to this rule is Art.
498. Being a co-owner of the property, S is entitled to use the
house without paying any rent to V as he may use the property
owned in common so long as it is in accordance with the purpose
for which it was intended and in a manner not injurious to the
interest of the other co-owners. Each co-owner of the property
held pro indiviso exercises his right over the whole property and
may use and enjoy the same with no other limitation than that he
will not injure the rights of the co-owners. The reason being that
until a division is made, the respective shares of each cannot be
determined and each co-owner exercises together with his co-
participants joint ownership over the pro-indiviso property in addition to his
use and enjoyment of the same. In fairness, S should pay a rental of Php
1,200.00 per month with legal interest from the time the lower court ordered
him to vacate for his use and enjoyment of the other half of the property
pertaining to V. When petitioner (V) filed an action to compel the sale of the
property, and trial court granted the petition and ordered the ejectment of
respondent (S), the ownership was deemed terminated and the right to enjoy
the property jointly also ceased. Thereafter, the continued stay of S in the
house prejudiced the interest of V as the property should have been sold and
the proceeds divided equally between them.
ARTICLE 495: Notwithstanding the provisions of the preceding
article, the co-owners cannot demand a physical division of the
thing owned in common, when to do so would render it
unserviceable for the use for which it is intended. But the co-
ownership may be terminated in accordance with Article 498.
ARTICLE 496: Partition may be made by agreement between the
parties or by judicial proceedings. Partition shall be governed by the
Rules of Court insofar as they are consistent with this Code.
2 KINDS OF PARTITION:
1. EXTRA-JUDICIAL PARTITION
2. JUDICIAL PARTITION
FABIAN vs. FABIAN
GR No. L-20449. January 29, 1968
GEN. RULE: An action for partition among co-owners does not
prescribe. EXCEPTION: If a co-owner had
(1) adverse claim in the concept of an owner, (2) in open,
continuous, exclusive and notorious possession and (3) in the span
of more than 10 years, he had acquired the property by
prescription against all the other co-owners.
FACTS
In 1909, Pablo Fabian bought from the Philippine Government, Lot 164
of the Friar Lands Estate in Muntinlupa, Rizal. The lot had an area 1 hectare,
42 ares and 80 centares and the consideration for the sale was P112, which
was agreed to be paid in installments. He was able to pay 5 installments. By
virtue of this purchase, a Sale Certificate was issued in Pablo Fabian’s favor.
In 1928, Pablo Fabian died and was survived by 4 children, namely Esperanza,
Benita I, Benita II and Silbina.
In 1928, respondents SILBINA (daughter) TEODORA FABIAN (niece)
executed an Affidavit. In said document, it was stated therein that SILBINA
was the only daughter of the deceased Pablo Fabian and that she and
TEODORA, as niece were his only heirs. On the strength of this Affidavit, the
Sale Certificate previously issued to Pablo Fabian was assigned to them.
Thereafter, the Director of Lands sold Lot 164 to SILBINA (married to
FELICIANO LANDRITO) and TEODORA (married to FRANCISCO DEL MONTE)
for the price of P120.
In 1929, RESPONDENTS SPOUSES then took physical possession of Lot
164, cultivated it and appropriated the produce therefrom. Since 1929, they
has been paying the real estate taxes thereon. In 1937, the Register of Deeds
issued a TCT over Lot 164 in their names. In 1945, after they have caused the
subdivision of the lot into 2 equal parts, Lot A and Lot B. 2 separate TCTs
were subsequently issued in the names of SILBINA and TEODORA.
In 1960, petitioners ESPERANZA, BENITA and DAMASO FABIAN filed an
action for reconveyance against the RESPONDENTS SPOUSES. They averred
that SILBINA and TEODORA perpetrated fraud in the Affidavit as what was
contained therein was a false narration of facts. It was because SILBINA knew
that she was not the only daughter and heir of the deceased Pablo Fabian
and TEODORA likewise knew all along that, as a mere niece of the deceased,
she was precluded from inheriting from him in the presence of his 4 surviving
daughters. Because of said Affidavit, the Sale Certificate was assigned and
transferred to them, which thereafter caused the issuance of certificate of
titles in their favor.
RESPONDENTS SPOUSES on the other hand claimed that Pablo Fabian
was not the owner of Lot 164 at the time of his death because he had not
paid in full the amortizations on the lot. They alleged that it was them who
were the absolute owners thereof, having purchased it from the Government
for the sum of P120, and from that year having exercised all the attributes of
ownership thereof up to the present. They alleged that the action
for reconveyance filed against them had long prescribed.
The trial court dismissed their action for reconveyance.
Hence, PETITIONER FABIANS appealed for review.
ISSUE
Whether or not RESPONDENTS SPOUSES as co-owners of the
land had acquired it through prescription against the PETITIONERS
FABIANS, the other co-owners.
RULING
YES, they had acquired the land against the co-owners
through prescription.
The Court concluded that Lot 164 was the property of Pablo
Fabian. When he died intestate in 1928, his 4 daughters had
acquired said property by succession and they commonly owned
the property under the principle of co-ownership.
General Rule & Exception. Although, as a general rule, an
action for partition among co-heirs does not prescribe. As an
exception, this is true only as long as the respondents do not hold
the property in question under an adverse title.
REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY
OWNED IN COMMON BY PRESCRIPTION:
(1) Co-owner has made known to the other co-owners that he
has: repudiated the co-ownership and claimed complete ownership
over it. SILBINA, one of the co-owners had repudiated the co-
ownership by executing the Affidavit with TEODORA, which bore
that they were the sole heirs of the late Pablo Fabian. SILBINA
claimed complete ownership over it by securing title in her name to
the exclusion of the other 3 sisters.
(2) There is evidence of repudiation and knowledge on the part
of other co-owners. The evidence of the repudiation was the
Affidavit, which excluded all the other co-owners as to ownership
over the property. Upon the registration of the Affidavit and the
issuance of the title, already served as a constructive notice to the
whole world.
(3) There is an open, continuous, exclusive, adverse and
notorious possession of the property. RESPONDENT SPOUSES
occupied the property in the concept of owners since 1929 since
they took physical possession of the land up to 1960. They had
cultivated it, harvested and appropriated the fruits for themselves.
Such acts logically meant the adverse character of the possession
they exercised.
(4) Possession of the Property has started from the time of
repudiation until the filing of the action in court should be at least
10 years. It was in 1928 when SILBINA executed the Affidavit which
made possible the issuance of title in her favor. The action for
reconveyance was only made in 1960 or 32 big years later after.
Said 32 years is even beyond the 10-year requirement under the
law.
Hence, acquisitive prescription of ownership acquired by one
of the co-owners, co-heirs, and administrator, depositary, or lessee
by means of an adverse possession under claim of title and after
the lapse of the time fixed by law can completely extinguish the
right of the other co-owners, co-heirs, or owners of the property in
the possession of the one claiming ownership by prescription.
CENIZA vs. CA
GR No. 46345. January 30, 1990
In a case where the co-owners had agreed that the title
to the property be named after only one of them, there
existed a trust relation. Thus, prescription could not run
in favor of the co-owner in whose name the title was
registered to except from the time that he repudiated
the co-ownership and made the repudiation known to
the former.
FACTS
Petitioners RESTITUTO and JESUS CENIZA were the
descendants of Manuel Ceniza. Respondents on the other hand,
MAGNO, VICENTA, TERESITA, EUGENIA and TOMAS DABON were the
descendants of Vicente Dabon.
Hacienda de Mandaue of the Seminario de San Carlos de Cebu was
located in Madaue, Cebu City. In 1929, it was subdivided for resale to the
occupants therein. Jose Ceniza and Vicente Dabon, who were residing in the
hacienda, jointly purchased Lot 627 on installment basis and they agreed for
convenience, to have the land registered in the name of Dabon. Since then,
Jose Ceniza, Vicente Dabon and their heirs had possessed their respective
portions of the land, declared the same for taxation, paid real estate taxes on
their respective shares, and made their respective installment payments to
the Seminario de San Carlos de Cebu. In 1939, a title was issued in the name
of Vicente Dabon.
In 1957, Vicente Dabon died and heirs continued to remain in
possession of the property.
In 1961, a private land surveyor, on the request of Jacinta Dabon and
Restituto Ceniza who jointly defrayed the cost, divided Lot 627 into three
parts, Lot A to Marcelo Ceniza, Lot B to Restituto Ceniza and Lot C to Nemesis
Ceniza Albina, who later bequeathed her share to her brother, Jesus Ceniza.
The DABONs refused to convey Lots B and C to the CENIZAs. They
claimed that their predecessor-in-interest Vicente Dabon was the sole and
exclusive owner of Lot 627.
Hence, in 1967, RESTITUTO and JESUS CENIZA filed an action for
recovery of their title to Lots B and C. The DABONs on the other hand, alleged
that the CENIZA’s right of action had already prescribed. However, the
CENIZAs alleged that Vicente Dabon held the property in trust for them, as
co-owners, hence, their action for reconveyance was imprescriptible.
In 1970, the trial court rendered judgment for the CENIZAs. It found that
there existed a co-ownership among the parties and ordered the DABONs the
B to execute deeds of conveyance of Lots B -C in favor of CENIZAs. On appeal
of the DABONs, the Court of Appeals reversed that decision of the trial court.
It ruled that the petitioners' right of action had prescribed after the lapse of
20 years from the date of registration of the land in 1939 in Vicente Dabon's
name.
Hence, this instant petition.
ISSUES
(1) Whether or not the DABONs has acquired the property by
prescription against the other co-owners, the CENIZAS.
(2) Whether or not the registration of the title of the land in the name
of one of Vicente Dabon constituted a repudiation of the co-ownership for
purposes of acquisitive prescription.
RULING
(1) NO, the action of the CENIZAs had not prescribed.
Since a trust relation and co-ownership were proven to exist between
the predecessors-in-interest of both the CENIZAs and DABONs, prescription
did not run in favor of the latter except from the time that they repudiated
the co-ownership and made the repudiation known to the former.
Paragraph 5 of Article 494 of the Civil Code provides:
"No prescription shall run in favor of a co-owner or co-heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership."
The registration of Lot No. 627 in the name of Vicente Dabon created a
trust in favor of his co-owner Jose Ceniza, and the latter's heirs.
Article 1452 of the Civil Code states:
"If two or more persons agree to purchase property and by common
consent the legal title is taken in the name of one of them for the benefit of
all, a trust is created by force of law in favor of the others in Proportion to
the interest of each.
As a general rule, the trustee's possession is not adverse and therefore
cannot ripen into a title by prescription. Adverse possession requires the
concurrence of the following circumstances:
a) that the trustee has performed unequivocal acts of
repudiation amounting to the ouster of the cestui que trust;
b) that such positive acts of repudiation have been made known
to the cestui que trust; and
c) that the evidence thereon should be clear and conclusive.
The above elements were not present here for the co-owners CENIZAs
had not been ousted from the land. They continued to possess their
respective shares of Lot 627 and they had been paying the realty taxes
thereon. In fact, RESTITUTO CENIZA's house stands on his portion of the land.
Where title to land was issued in the name of a co-heir merely with the
understanding that he would act as a trustee of the other co-owners, and
there is no evidence that this trust relation had ever been
repudiated by said trustee, the relation then cannot be barred by
prescription, despite the lapse of a big number of years from the
date of registration of the land in the trustee's name.
The courts have the duty to shield fiduciary relations "against
every manner of machinery or fiduciary design cloaked by legal
technicalities and to guard against misuse of the Torrens system "to
foment betrayal in the performance of a trust."
(2) NO, the registration was not a repudiation of the co-
ownership. Assuming that the DABON’s rejection of the
subdivision plan for the partition of the land was an act of
repudiation of the co-ownership, prescription had not yet set in
when the petitioners instituted the action for reconveyance.
In this case, since the statutory period of limitation within
which to file an action for reconveyance, after the defendants had
repudiated the co-ownership in 1961, had not yet run its course
when the petitioners filed said action in 1967, the action was not
barred by prescription.
BICARME vs. CA
GR No. 51914. June 6, 1990
The right of a co-owner for partition against another co-
owner, who holds a common property in trust may be
barred by prescription provided that it is being held in
trust. In the case at bar, MARIA had not proved her
adverse claim over the property against her co-owner
CRISTINA that the existence of the co-ownership was
sustained.
FACTS
Spouses Juan Bicarme and Florencia Bidaya were the original
co-owners of two parcels of land: a cornland and a riceland, both in
Benguet, Abra. The spouses died intestate and were survived by 3
children, Victorina, Sebastian and petitioner MARIA BICARME.
Sebastian Bicarme died when he was a little boy and without any
issue. Later, Victorina Bicarme died intestate, survived by her only
daughter, respondent CRISTINA BICARME.
CRISTINA claimed that upon the death of her grandparents,
Spouses Juan and Florencia, her mother Victorina and her aunt,
MARIA, became co-owners or co-heirs of the litigated parcels of
land. Upon the death of her mother Victorina, she became co-heirs
with MARIA, having inherited the share and interest of her mother
corresponding to ½ of the 2 parcels of land. MARIA however
refused to share with CRISTINA the yearly fruits of the 2 parcel of
lands. Hence, in 1974, CRISTINA filed an action for partition against
her aunt MARIA.
Maria, however, maintained that she acquired these 2 parcels
of land from the deceased spouses Placido Bidays and Margarita
Bose, the cornland in 1925 and the riceland in 1926. She averred
that since then, she had been in open, public, peaceful, continuous,
adverse possession and enjoyment and in the concept of absolute
owner thereof. She further claimed that Cristina, her niece, never
shared or contributed to the payment of taxes of said 2 parcels of
land and that CRISTINA was presumed already dead.
The trial court ruled that MARIAN and CRISTINA were co-heirs.
It held that MARIA was as trustee with respect to CRISTINA's share.
As such, prescription, as a mode of acquiring title, could not apply.
It also added that co-owners/trustees even if they possess the land
held in common could never acquire the property through
prescription because of the presence of a trust relation. The Court
of Appeals affirmed the same decision. Hence, this petition.
MARIA alleged that assuming that CRISTINA was indeed a co-
heir, her rights over the 2 parcels of land had already prescribed.
She alleged that from the moment she ignored and repudiated
CRISTINA's hereditary rights in 1940, the latter's right of action
already accrued and the period of prescription began to run.
CRISTINA’s action for partition was only filed in 1974 or 34 years
after. CRISTINA’s action then was barred by prescription as she
slept on her rights.
ISSUES
1. Whether or not MARIA and CRISTINA were indeed co-owners.
2. Whether or not the lower court erred in stating that MARIA and
CRISTINA were co-owners because the right of a co-owner for partition
against another co-owner, who holds a common property in trust with
adverse possession cannot be barred by prescription.
3. Whether or not the MARIA acquired the property by prescription.
RULING
(1) YES, they were co-owners.
The trial court theorized that Victorino and MARIA Bicarme never
partitioned even orally the two parcels of lands which were then owned in
common by them. It remained undivided even after the death of Victorino.
Without the knowledge of CRISTINA, MARIA sold the cornland and executed
3 Deeds of Sales in favor of 3 third persons.
In these 3 Deeds of Sale, MARIA admitted that she inherited and
acquired the lands from his late father Juan Bicarme. Said provision in the
Deeds of Sale was in the nature of a trust provision in favor of Cristina as a
co-owner/co-heir.
(2) YES, the lower court erred as in such case, the right to partition may
still be barred by prescription.
An action for partition implies that the thing is still owned in common. If a
co-owner or co-heir holds the property in exclusive adverse possession as
owner, asserting sole and exclusive dominion for the required period, he can
acquire sole title to it as against the co-heirs or co-owners. The
imprescriptibility of an action for partition cannot thus be invoked when one
of the coowners has possessed the property as exclusive owner, and for a
period sufficient to acquire it by prescription. From the moment one of the
co-owners claims that he is the absolute and exclusive owner of the
properties and denies the others any share therein, the question involved is
no longer one of partition, but of ownership. In this sense, the trial court
erred in saying that there can be no prescription (as a mode of acquiring title)
in favor of a co-owner/ trustee.
(3) NO, she had not acquired the property by prescription.
Acts which are adverse to strangers may not be sufficiently adverse to
the co-owners. A mere silent possession by a co-owner, his receipt of rents,
fruits or profits from the property, the erection of buildings and fences and
the planting of trees thereon, and the payment of land taxes, cannot serve as
proof of exclusive ownership, if it is not borne out by clear, complete and
conclusive evidence that he exercised acts of possession which unequivocally
constituted an ouster or deprivation of the rights of the other co-owners.
MARIA had not complied the requisites for a co-owner to own a
common property held in common through prescription.
REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN
COMMON BY PRESCRIPTION:
(1) Co-owner has made known to the other co-owners that he has:
repudiated the co-ownership and claimed complete ownership over it. [not
complied] In the present case, MARIA disclaimed the co-ownership by
denying that subject properties are the inherited properties. Although MARIA
paid land taxes, it did not constitute sufficient repudiation of the co-
ownership, as it was not an act adverse to CRISTINA's rights. Her refusal to
share with CRISTINA the yearly profits merely stemmed from CRISTINA's
failure to share in the yearly taxes. Moreover, CRISTINA, being a minor until
she claimed her rights, was not even aware thereof. Neither did MARIA made
known her repudiation to CRISTINA, because all along, Maria presumed her
to be dead.
(2) There is evidence of repudiation and knowledge on the part of other
co-owners. [not complied] There was no evidence of the repudiation. Other
than the tax declarations in MARIA’s name, there was no written evidence
that the 2 parcels of land were acquired/purchased from Spouses Placido
Biduya and Margarita Bose as she insisted on. Payment of land taxes was not
sufficient evidence of repudiation.
(3) There is an open, continuous, exclusive, adverse and notorious
possession of the property. [not complied] Although MARIA was in
possession of the property, she merely held the property in trust in favor of
CRISTINA.
(4) Possession of the property has started from the time of repudiation
until the filing of the action in court should be at least 10 years. [not
complied] Being that her possession of the property was by reason of a trust
relationship, MARIA could not have acquired the property no matter how
long she occupied it.
DE LIMA vs. CA
 GR No. 46296 September 24, 1991
A co-owner had registered a property held in common
only in his name and possessed it in the concept of an
owner. After the lapse of 10 years, without action from
the other co-owners, he could then acquire it through
acquisitive prescription.
FACTS
During his lifetime, Lino Delima acquired Lot No. 7758 of the
Talisay-Minglanilla Friar Lands Estate in Cebu by sale on
installments from the government. He later died in 1921 and was
survived by his only heirs, 3 brothers and a sister namely: Eulalio,
Juanita, Galileo and Vicente Delima. After his death, in 1953, the
title of the property was issued in the name of The Legal Heirs of
Lino Delima, deceased, represented by Galileo Delima.
Later, Galileo Delima, who was substituted by RESPONDENTS
FLAVIANA VDA. DE DELIMA ET AL., executed an affidavit of Extra-
judicial Declaration of Heirs. Based on this affidavit, the title over
the lot was cancelled and another title was issued in 1954 but only
in the name of Galileo Delima to the exclusion of the other heirs.
Thereon, Galileo Delima declared the lot for taxation purposes and
paid the taxes thereon from 1954 to 1965.
In 1968, PETITIONERS EPITACIO DELIMA ET AL. who were the
surviving heirs of Eulalio and Juanita Delima, filed an action for
reconveyance and/or partition of property and for the annulment
of the title issued only in the name of Galileo Delima. Vicente
Delima, who was 1 of the 4 original heirs of Lino Delima was joined
as party-defendant by the PETITIONERS for his refusal to join the
latter in their action.
In 1970, the trial court held that the 4 original heirs of Lino
Delima should be entitled to ¼ of the property. It also declared null
and void the title in the name of Galileo Delima only.
Not satisfied with the decision, RESPONDENTS HEIRS
appealed to the Court of Appeals, which revered the decision of the
trial court and upheld the claim of Galileo Delima that all his 3
other siblings had already relinquished and waived their rights to
the property in his favor considering that he (Galileo Delima) alone
paid the remaining balance of the purchase price of the lot and the
realty taxes thereon.
Aggrieved, PETITIONERS filed this instant petition.
ISSUE
Whether or not PETITIONERS' action for partition was already
barred that Galileo Delima had perfected his claim of ownership by
acquisitive prescription over the disputed lot.
RULING
YES, prescription had already set in.
As a rule, possession by a co-owner will not be presumed to
be adverse to the others, but will be held to benefit all. It is
understood that the co-owner or co-heir who is in possession of an
inheritance pro-indiviso for himself and in representation of his co-
owners or co-heirs, if, as such owner, he administers or takes care
of the rest thereof with the obligation of delivering it to his co-
owners or co-heirs, is under the same situation as a depository, a
lessee or a trustee. Thus, an action to compel partition may be filed
at any time by any of the co-owners against the actual possessor. In
other words, no prescription shall run in favor of a co-owner
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership.
However, from the moment one of the co-owners claims that
he is the absolute and exclusive owner of the properties and denies
the others any share therein, the question involved is no longer one
of partition but of ownership. In such case, the imprescriptibility of
the action for partition can no longer be invoked or applied when
one of the co-owners has adversely possessed the property as
exclusive owner for a period sufficient to vest ownership by
prescription.
It is settled that possession by a co-owner or co-heir is that of
a trustee. When a co-owner of the property in question executed a
deed of partition and on the strength thereof obtained the
cancellation of the title in the name of their predecessor and the
issuance of a new one wherein he appears as the new owner of the property,
thereby in effect denying or repudiating the ownership of the other co-
owners over their shares, the statute of limitations started to run for the
purposes of the action instituted by the latter seeking a declaration of the
existence of the co-ownership and of their rights thereunder. Since an action
for reconveyance of land based on implied or constructive trust prescribes
after ten (10) years, it is from the date of the issuance of such title that the
effective assertion of adverse title for purposes of the statute of limitations is
counted.
The requisites for a co-owner to own a common property held in
common through prescription had been complied with by RESPONDENTS.
REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN
COMMON BY PRESCRIPTION:
(1) Co-owner has made known to the other co-owners that he has:
repudiated the co-ownership and claimed complete ownership over it.
[complied] Evidence showed that the title in the name of the legal heirs of
Lino Delima, represented by Galileo Delima, was cancelled by virtue of an
affidavit executed by Galileo Delima. In 1954, Galileo Delima obtained the
issuance of a new title in his name to the exclusion of his co-heirs. As the
certificate of title was notice to the whole world of his exclusive title to the
land, such rejection was binding on the other heirs and started as against
them the period of prescription.
(2) There is evidence of repudiation and knowledge on the part of other
co-owners. [complied] The issuance of the new title in the name of Galileo
Delima only constituted an open and clear repudiation of the trust or co-
ownership. Upon registration of the title, it already served as a constructive
notice to the other heirs.
(3) There is an open, continuous, exclusive, adverse and notorious
possession of the property. [complied] Galileo Delima and his heirs had been
in possession of the land after Lino Delima died.
(4) Possession of the property has started from the time of repudiation
until the filing of the action in court should be at least 10 years. [complied] It
was in February 4, 1954 that Galileo Delima obtained the issuance of a new
title in his name. Hence, when petitioners filed their action for reconveyance
and/or to compel partition on February 29, 1963, such action was already
barred by prescription. The lapse of ten (10) years of adverse possession by
Galileo Delima from February 4, 1954 was sufficient to vest title in him by
prescription. Hence, whatever claims the other co-heirs could had validly
asserted before could no longer be invoke by them at this time.
TRINIDAD vs. CA
GR No. 118904. April 20, 1998
A co-owner cannot acquire by prescription the share of the other
co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners.
FACTS
Patricio Trinidad, married to Anastacia Briones, was the original owner
of 4 parcels of land located in Kalibo, Aklan. He later died in 1940 and was
succeeded by his 3 children: Inocentes and private respondents LOURDES
and FELIX, all surnamed TRININDAD.
In 1970, Petitioner ARTURIO TRINIDAD, born in 1943, claimed that he
was the son of the late Inocentes Trinidad with his mother Felicidad Molato.
He then demanded from private respondents FELIX and LOURDES TRINIDAD
to partition the land into 3 equal shares and to give him the 1/3 individual
share of his late father but the FELIX and LOURDES TRINIDAD refused.
Hence, in 1978, ARTURIO TRINIDAD filed a complaint for partition and
damages against FELIX and LOURDES TRINIDAD. The latter however denied
that ARTURIO was the son of the late Inocentes Trinidad as he was still single
when he died in 1941, before ARTURIO 's birth in 1943. FELIX and LOURDES
also denied that ARTURIO had lived with them and claimed that the 4 parcels
of land had been in their possession since the death of their father in 1940
and that they had not given ARTURIO a share in the produce of the land.
Later, FELIX died without issue and he was survived by his only sister,
LOURDES, who claimed exclusive ownership over the 4 parcels of land.
In 1989, the trial court rendered a decision in favor of ARTURIO and
held that he was a co-owner with FELIX and LOURDES.
The Court of Appeals ruled in favor of FELIX and LOURDES, contending
that ARTURIO was not a recognized legitimate child of Inocentes. It also
states that the 4 parcels of land had already been acquired by FELIX and
LOURDES by acquisitive prescription. The 2 had been in possession of the
property since 1940 when their father died. Even if possession be
counted from 1964, when ARTURIO attained the age of majority,
still, FELIX and LOURDES TRINIDAD possessed the land for more
than 10 years.
ISSUE
Whether or not ARTURIO’s action for partition had already
prescribed that FELIX and LOURDES had acquired the property
through acquisitive prescription.
RULING
NO, it had not prescribed. FELIX and LOURDES did not acquire
the property through acquisitive prescription.
The partition of the late Patricio Trinidad’s real properties
required preponderant proof that ARTURIO was a co-owner or co-
heir of the decedent's estate. His right as a co-owner would, in
turn, depend on whether he was born during the existence of a
valid and subsisting marriage between his mother Felicidad Molato
and his putative father Inocentes Trinidad. In the present case,
ARTURIO had proved by preponderant evidence that he was the
legitimate son of Felicidad and Inocentes as the two were married.
Hence, he had right to claim ownership by inheritance as to the 4
parcels of land.
The trial court found out that ARTURIO, after the death of his
father and mother, had lived with FELIX nad LOURDES and enjoyed
the status of being their nephew. When ARTURIO had gotten
married and had a family of his own, he started to demand for the
partition of the share of his father, Inocentes. His demand
provoked the ire of the FELIX and LOURDES, thus, they disowned
him as their nephew.
FELIX and LOURDES TRINIDAD did not acquire ownership of
the property in question by acquisitive prescription. Under Art. 494
of the Civil Code, in a co-ownership, the act of one benefits all the
other co-owners, unless the former repudiates the co-ownership.
Thus, no prescription runs in favor of a co-owner or co-heir against
his or her co-owners or co-heirs, so long as he or she expressly or
impliedly recognizes the co-ownership.
A co-owner cannot acquire by prescription the share of the
other co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners.
In the case at bar, FELIX and LOURDES had not complied the
requisites for a co-owner to own a common property held in
common through prescription.
REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY
OWNED IN COMMON BY PRESCRIPTION:
(1) Co-owner has made known to the other co-owners that he
has: repudiated the co-ownership and claimed complete ownership
over it. [not complied] Prior to his demand for partition, ARTURIO,
in the concept of a co-owner, was receiving from FELIX and
LOURDES his share of the produce of the land in dispute. Until such
time, recognition of the co-ownership by FELIX and LOURDES
TRINIDAD was beyond question. There was no evidence, either, of
their repudiation, if any, of the co-ownership of petitioner's father
Inocentes over the land. Although FELIX and LOURDES had
possessed these parcels openly since 1940 and had not shared with
petitioner the produce of the land during the pendency of this case,
still, they manifested no repudiation of the co-ownership. FELIX nad
LOURDES did not even register the property in their names.
(2) There is evidence of repudiation and knowledge on the
part of other co-owners. [not complied] There was no evidence of
repudiation. In fact, the title over the 4 parcels of land was still in
the name of the oririginal owner, Patricio Trinidad.
(3) There is an open, continuous, exclusive, adverse and
notorious possession of the property. [not complied] Although FELIX
and LOURDES had been in possession of the property since 1940,
prescription did not run against ARTURIO with respect to the filing
of the action for partition because the former had not expressly or
impliedly repudiated the co-ownership. In the other words,
prescription of an action for partition does not lie except when the
co-ownership is properly repudiated by the co-owner.
(4) Possession of the property has started from the time of
repudiation until the filing of the action in court should be at least
10 years. [complied] It is undisputed that FELIX and LOURDES had
been in possession of the property since 1940 when their father died. Even if
possession be counted from 1964, when ARTURIO attained the age of
majority, still, FELIX and LOURDES TRINIDAD possessed the land for more
than 10 years. However, even so, prescription could not still run in the
absence of repudiation.
TOMAS CLAUDIO MEMORIAL COLLEGE vs. CA
GR No. 124262. October 12, 1999
An action for partition is imprescriptible. It cannot be barred by
prescription.
FACTS
In 1993, private respondents CRISANTA, ELPIDIA, EFRINA, IRENEO DE
CASTRO and ARTEMIO DE CASTRO ADRIANO, filed an action for partition
against petitioner TOMAS CLAUDIO MEMORIAL COLLEGE, INC. They alleged:
1. that their father and predecessor-in-interest, Juan De Castro
owned a parcel of land located at Morong, Rizal with an area of 2,269
sq. m.
2. that Juan De Castro died intestate in 1993 and they are his
only surviving and legitimate heirs
3. that in 1979, without their knowledge and consent, said lot
was sold by their brother Mariano to TOMAS CLAUDIO MEMORIAL
COLLEGE, INC. when Mariano represented himself as the sole heir to
the property.
4. that the said sale affected only Mariano’s undivided share to
the lot in question but not the shares of the other co-owners
equivalent to 4/5 of the property.
Both the trial court and the Court of Appeals ruled against TOMAS
CLAUDIO MEMORIAL COLLEGE, INC. that it filed a petition via certiorari with
the Supreme Court.
ISSUE
Whether or not the right of the DE CASTROs for partition had already
prescribed.
RULING
NO, it had not prescribed.
Even if a co-owner sells the whole property as his, the sale will affect
only his own share but not those of the other co-owners who did not consent
to the sale. Since a co-owner is entitled to sell his undivided share, a sale of
the entire property by one co-owner without the consent of the other co-
owners is not null and void. However, only the rights of the co-owner/seller
are transferred, thereby making the buyer a co-owner of the property.
The proper action in a case like this, is not for the nullification of the
sale, or for the recovery of possession of the property owned in common
from the third person, but for division or partition of the entire property if it
continued to remain in the possession of the co-owners who possessed and
administered it. Such partition should result in segregating the portion
belonging to the seller and its delivery to the buyer.
In the light of the foregoing, TOMAS CLAUDIO MEMORIAL COLLEGE,
INC.'s defense of prescription against an action for partition is a vain
proposition. Pursuant to Article 494 of the Civil Code, "no co-owner shall be
obliged to remain in the co-ownership. Such co-owner may demand at
anytime the partition of the thing owned in common, insofar as his share is
concerned." In Budlong vs. Bondoc (1977), the Supreme Court had
interpreted said provision of law to mean that the action for partition is
imprescriptible. It cannot be barred by prescription.
SANTOS vs. SANTOS
GR No. 139524. October 12, 2000
A co-owner cannot acquire by prescription the share of the other
co-owners absent a clear repudiation of co-ownership duly
communicated to the other co-owners.
Exclusive possession of a co-owner of a property owned in
common by mere tolerance of the other co-owner did not amount
to a repudiation. It must be understood that by culture, Filipino
family ties are close and well-knit and that the tolerance was
natural.

FACTS
Bonifacio Santos was the owner of a property located in San
Mateo, Rizal. He died intestate and was survived by his 3 children:
petitioner LADISLAO, respondent ELISEO and their sister Isidra. In
1964, during a cadastral survey, the said property, with an area of
6,340 square meters was identified as Lot 1522.
In 1967, LADISLAO and his wife, Leonila Mateo executed a
Deed of Absolute Conveyance with Right of Way over the
southwestern portion of Lot 1522, with an area of 3,000 square
meters, in favor of his brother, ELISEO for the price of P500.00, with
a provision for a right of way.
In the same year of 1967, Isidra died intestate and was
survived by her 2 brothers: LADISLAO and ELISEO. AFTER THE
DEATH OF Isidra, it was Virgilio Santos, son of ELISEO who
possessed the property.
In 1969, LADISLAO and ELISEO and their respective Spouses
executed a Combined Deed of Partition covering the Lot 1522 and
the Isidra Property, wherein it was covenanted that the Isidra
Property was deeded to ELISEO.
In 1969, the Provincial Assessor issued a tax declaration,
over the Isidra property, under the name of Virgilio (son of ELISEO)
and Virginia Santos, thereby canceling the one under the name of
Isidra. In 1972, 1974 and 1980, tax declarations were also issued in
the names of the said spouses.
In 1980, Virgilio executed Deed of Absolute Sale of
Unregistered Residential Land in favor of his brother, PHILIP over
the Isidra property in exchange of another property owned by the
latter. On the basis of said deed, in 1981, a tax declaration under
the name of PHILIP was issued. Since then, PHILIP occupied the
Isidra property and had his shop constructed thereon and he had
been paying the realty taxes therefor. In 1984, VIRGILIO Santos
died intestate and was survived by his wife Virginia.
In the meantime, LADISLAO and PHILIP left the Philippines
and resided in the USA.
Despite the Deed of Absolute Conveyance With Right of Way
executed by LADISLAO in favor of ELISEO, the latter and the
children of the LADISLAO signed an Application and sought in court
for the registration of “their title” over Lots 1522 and 2433. The
application alleged that Lot 1522 was occupied by the heirs of
LADSILAO (3,430 sq. m.) and ELISEO (3,000 sq. m.), as a site of
cockpit building. In 1986, the court granted the application. Later, a
title was issued in their names.
Later, the children of LADISLAO and ELISEO executed a
Partition Agreement where Lot 1522 was subdivided into 2 lots, Lot
A (3,000 sq. m. in favor of Eliseo) and Lot B (3,387 sq. m. in favor of
the children of LADILAO).
In 1993, LADISLAO had discovered that the Isidra property
he and ELISEO inherited had been declared, for taxation purposes,
under the name of PHILIP, on the basis of a Deed of Sale executed
by Virgilio Santos.
In the same year, LADISLAO filed an action for the judicial
partition of the Isidra property against ELISEO and the latter’s son,
PHILIP. The trial court dismissed the petition on the ground of
acquisitive prescription. On appeal, the Court of Appeals declared
that LADISLAO and ELISEO were co-owners and hence entitled to ½
pro indiviso shares in the Isidra.
Hence, this petition. It was alleged by petitioners PHILIP and
the HEIRS OF ELISEO the right of action of LADISLAO has already
prescribed.
ISSUE
Whether or not the action for partition was already barred by
acquisitive prescription against LADISLAO.
RULING
NO, it had not prescribed.
Considering that ELISEO and PHILIP disputed the status of
LADISLAO as co-owner on the ground that the brothers entered
into a Combined Deed of Partition wherein the entire Isidra
property was conveyed to ELISEO, It was then incumbent upon
them to present the best evidence obtainable to prove the same.
However, the claim of a subsisting co-ownership by LADISLAO over
the Isidra property has not been effectively refuted by ELISEO and PHILIP,
and that ELISEO and his successors-in-interest (Virgilio and PHILIP) did not
acquire exclusive title over the entire Isidra property.
Considering that there was no proof that LADISLAO executed any
Combined Deed of Partition in tandem with ELISEO, co-ownership still
subsisted between the brothers over the Isidra property. This being the case,
Article 494 of the Civil Code should be applied which states that,
“prescription does not run in favor of a co-owner or co-heir against his co-
owners or his co-heirs so long as he expressly or impliedly recognizes the co-
ownership.”
Prescription, as a mode of terminating a relation of co-ownership must
have been preceded by repudiation of the co-ownership. There was no
showing that ELISEO had complied with the following requisites.
REQUISITES FOR A CO-OWNER TO ACQUIRE A PROPERTY OWNED IN
COMMON BY PRESCRIPTION:
(1) Co-owner has made known to the other co-owners that he has:
repudiated the co-ownership and claimed complete ownership over it. [not
complied] ELISEO had not repudiated the co-ownership, and even if he did,
there is no showing that the same had been clearly made known to
LADISLAO. Indeed, Filipino family ties being close and well-knit as they are,
and considering that Virgilio was the ward of Isidra Santos ever since when
Virgilio was still an infant, it was but natural that the LADISLAO did not
interpose any objection to the continued stay of Virgilio and his family on the
property and even acquiesce thereto. LADISLAO must have assumed too, that
his brother, ELISEO, allowed his son to occupy the property and use the same
for the time being. Hence, such possession by Virgilio Santos and Philip
Santos of the property does not constitute a repudiation of the co-ownership
by the Appellee Eliseo Santos and of his privies for that matter.
It is probable that said conduct was simply tolerated by the
plaintiffs on account of his being their uncle, and they never thought that by
said conduct the defendant was attempting to oust them forever from the
inheritance, nor that the defendant would have so intended in any way,
dealing as we do here with the acquisition of a thing by prescription, the
evidence must be so clear and conclusive as to establish said prescription
without any shadow of doubt. This does not happen in the instant case, for
the defendant did not even try to prove that he has expressly or impliedly
refused plaintiff’s right over an aliquot part of the inheritance.
(2) There is evidence of repudiation and knowledge on the part of other
co-owners. [not complied] There was no evidence of the repudiation. There
was no proof that LADISLAO executed any Combined Deed of Partition in
tandem with ELISEO. Also the evidence consisting of the tax declarations in
Virgilio’s name and then in Philip’s name were not conclusive and
indisputable evidence to show that the lot in question was conveyed to
Virgilio Santos, Philip’s predecessor-in-interest. A mere tax declaration does
not vest ownership of the property upon the declarant. Neither do tax
receipts nor declarations of ownership for taxation purposes constitute
adequate evidence of ownership or of the right to possess realty.
(3) There is an open, continuous, exclusive, adverse and notorious
possession of the property. [complied] It was Virgilio Santos (son of ELISEO)
who was in possession of the subject property since after the death of Isidra
Santos in 1967. Thereafter, PHILIP took possession of the subject property in
1980 upon its sale even until the action for partition filed by LADISLAO.
Despite this, prescription did not commence in the absence of repudiation.
(4) Possession of the property has started from the time of repudiation
until the filing of the action in court should be at least 10 years. [complied]
PHILIP and the HEIRS OF ELISEO reasoned out that more than 13 years had
lapsed from 1967 when Isidra died, to 1980 when PHILIP took possession of
the property. In fact, they also argued that more than 12 years had lapsed
from the time PHILIP took possession of the property in 1980 up to the time
LADISLAO filed the action for partition in 1993. They concluded that the
action of LADISLAO was already barred by ordinary acquisitive prescription of
10 years. Further, it is argued that the possession of Virgilio Santos could be
tacked with the possession of Philip Santos bringing to a total of 26 years the
time that elapsed before the filing of the case in 1993. However, being that
there was no repudiation, prescription did not run.
ARTICLE 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.

2 RIGHTS OF THE CREDITOR
1. To take part in the partition;
2. To object to the partition being
affected without their concurrence
 The creditors cannot impugn the partition that has
already been executed, except:
1) if there has been fraud on the part of the co-
owners;
2) despite the formal opposition made by them
to prevent it, the partition was still made.
ARTICLE 498: Whenever the thing is essentially indivisible and the
co-owners cannot agree that it be allotted to one of them who shall
indemnify the others, it shall be sold and its proceeds distributed.
 What is the SITUATION in Art. 498?
1. the thing owned in common is
essentially indivisible; and
2. the owners cannot agree that it
may be allotted to one of them who
shall indemnify the others.
AGUILAR vs. CA
GR No. 76351. October 29, 1993
Art. 498 of the Civil Code states that whenever the thing
is essentially indivisible and the co-owners cannot agree
that it be allotted to one of them who shall indemnify
the others, it shall be sold and its proceeds accordingly
distributed.
Rental for the exclusive use and enjoyment of a co-
owner which is not necessarily prejudicial to the
interests of the other co-owners should only be ordered
after partition because prior to partition, the former has
the right to use and enjoy the entire property as a co-
owner.
FACTS
Petitioner VIRGILIO AGUILAR and respondent SENEN AGUILAR
were brothers. In 1969, they purchased a house and lot in
Parañaque where their father, Maximiano Aguilar, could spend and
enjoy his remaining years in a peaceful neighborhood. Initially, the
brothers agreed that VIRGILIO's share in the co-ownership was 2/3
while that of SENEN was 1/3.
In 1970, the brothers executed a Memorandum wherein it
was agreed upon that their interests in the house and lot should be
equal. It was also stated therein that in exchange for SENEN’S
possession and enjoyment of the house together with their father,
he should assume the remaining mortgage obligation of the
original owners with the Social Security System (SSS).
Also, since VIRGILIO was then disqualified from obtaining a
loan from SSS, the brothers agreed that the Deed of Sale would be
executed and the title registered in the meantime in the name of
SENEN. It was further agreed that Senen would take care of their
father and his needs since Virgilio and his family were staying in
Cebu.
In 1974, their father Maximiano Aguilar died. Afterwards,
VIRGILIO demanded from SENEN that the latter should vacate the
house and that the property be sold and proceeds thereof be
divided among them. However, SENEN refused to do so.
Because of the refusal of SENEN to give in to VIRGILIO's
demands, in 1979, the latter filed an action to compel the sale of
the house and lot so that they could divide the proceeds between
them. In his complaint, he prayed that the proceeds be divided in
the following manner: 2/3 in his favor and 1/3 in favor of SENEN.
He also prayed that SENEN be ordered to pay for monthly rentals
for his use of the house after their father died. He claimed that
SENEN's continued stay in the property hindered its disposal to his
prejudice.
SENEN on the other hand alleged that he had no objection to
the sale as long as the best selling price could be obtained. He also
prayed that should the sale would be effected, the proceeds thereof should
be divided equally. He further added that his use and enjoyment of the house
was lawful since he was co-owner than he should not be ordered to pay
monthly rentals.
The trial court ordered that SENEN should vacate the property so that it
could be sold to third persons and that the proceeds of the sale be divided
equally between him and VIRGILIO. It also ordered that SENEN should pay
monthly rentals, which should be counted after the death of their father.
The Court of First Instance reversed the decision. However, the Court of
Appeals affirmed the decision of the trial court. Hence, this petition by
VIRGILIO.
ISSUES
1. Whether or not it was proper for SENEN to vacate the property so
that it could be sold to third persons.
2. Whether or not SENEN should pay rentals after the time his father
died.
RULING
(1) YES, SENEN should vacate the property so that it could be sold to third
persons.
Art. 498 of the Civil Code states that whenever the thing is essentially
indivisible and the co-owners cannot agree that it be allotted to one of them
who shall indemnify the others, it shall be sold and its proceeds accordingly
distributed.
This is resorted to when:
(1) the right to partition the property is invoked by any of the
co-owners but because of the nature of the property it cannot be
subdivided or its subdivision would prejudice the interests of the co-
owners, and
(b) the co-owners not in agreement as to who among them shall
be allotted or assigned the entire property upon proper
reimbursement or the co-owners.
In the present case, the right to partition of the property was invoked
by VIRGILIO but SENEN refused to vacate it. The only recourse then is to sell
the property and the proceeds of the sale be distributed to the both of them
in equal shares.
(2) NO, SENEN should not start paying rentals after the death of their
father but only after the trial court ordered him to vacate the property until
he should actually vacate.
SENEN was a co-owner. Hence, under Article 486 of the Civil Code, he had
the right to use the house and lot without paying any compensation to
VIRGILIO, as he may use the property owned in common so long as it is in
accordance with the purpose for which it is intended and in a manner not
injurious to the interest of the other co-owners.
However, since VIRGILIO had decided to effect partition of the house and
lot in court. After the trial court granted the petition for partition and
ordered the ejectment of SENEN, the co-ownership was deemed terminated
and the right to use and enjoy the possession jointly ceased. Thereafter, the
continued stay of SENEN and his family in the house was prejudicial to the
interest of VIRGILIO as the property should have been sold and the proceeds
divided equally between them. To this extent and from then on respondent
should be held liable for monthly rentals until he and his family vacate.
REYES vs. CONCEPTION
GR No. 56650. October 1, 1990
A co-owner has no the preemptive right to purchase the pro
indiviso share being offered for sale by another co-owner. What
he has is the right of redemption which must be exercised for a
span of period after the sale to a 3rd person by the other co-owner
involving the latter’s share was made.
Under Art. 498, the sale of the property held in common referred
to in the above article is resorted to when: (1) the right to
partition the property among the co-owners is invoked by any of
them but because of the nature of the property, it cannot be
subdivided or its subdivision would prejudice the interests of the
co-owners and (2) the co-owners are not in agreement as to who
among them shall be allotted or assigned the entire property upon
reimbursement of the shares of the other co-owners.
FACTS
Peitioners MARINA REYES, AUGUSTIN ZABALLERO and
SOCORRO FRANCISCO (REYES ET AL.) and private respondents
SOCORRO MARQUEZ VDA. DE ZABALLERO, EUGENIA ZUNA,
LEONARDO ZABALLERO and ELENA FRONDA ZABALELRO (VDA. DE
ZABALLERO ET AL.) were pro indiviso co-owners of 8 parcels of land
totaling to 9 hectares located in the province of Cavite.
In 1980, REYES ET AL. received a written notice from VDA. DE
ZABALLERO ET AL. that VOLCANO SECURITIES TRADERS AND AGRI-
BUSINESS CORP. offered to buy their share in the properties and
that they had agreed thereto. The terms stated that VOLCANO
SECURITIES was also willing to purchase not only the aliquot shares
of VDA. DE ZABALLERO ET AL. but also that of REYES ET AL. for the
price of P12.50 per sq. m.
In the same year, REYES ET AL. filed a case in court seeking to
enjoin VDA. DE ZABALLERO ET AL. from selling their pro indiviso
shares as co-owners of the property. They also claimed:
1. that the subject property was incapable of
division,
2. that as co-owners, they had a preferential
right to purchase the shares of VDA. DE ZABALLERO ET
AL. for a reasonable price, and
3. that P12.50 per sq. m. was grossly excessive
being that they have a preemptive right to purchase the
property, it was unreasonable.
VDA. DE ZABALLERO ET AL. refuted said allegations. Later,
they alleged that they did not know any other party who was
willing and able to purchase the property under a more favorable
condition than offered by VOLCANO SECURITIES. They however,
also expressed that they were willing to sell the property to REYES
ET AL. at the same rate of P12.50 per sq. m. as offered by VOLCANO
SECURITIES.
The trial court ruled that REYES ET AL. as co-owners did not
have a preemptive right to purchase VDA. DE ZABALLERO ET AL.’s
property. Pursuant to Art. 498, it also ordered a public sale of the
entire property as it was indivisible.
Hence, this present action.
ISSUES
1. Whether or not a co-owner has the preemptive right to
purchase the pro indiviso share being offered for sale by another
co-owner.
2. Whether or not the property should be sold to third
persons.
RULING
(1) NO, a co-owner has such no right. The legal provisions on co-
ownership do not grant to any of the owners of a property held in
common a preemptive right to purchase the pro indiviso shares of
his co-owners.
Art. 1620 of the Civil Code only allows a co-owner to exercise
a right of redemption should the other co-owner sell his share in
the property to a third person. However, it could not be applied in
the present case. This is not present in the case at bar since no sale
of VDA. DE ZABALLERO ET AL.’s pro indiviso shares had been made
yet. It only applies should a sale had been made.
Neither did REYES ET AL. had the legal right to enjoin VDA. DE
ZABALLERO ET AL. from alienating their pro indiviso shares to a
third party. The law does not prohibit a co-owner from selling,
alienating or mortgaging his ideal share in the property held in
common. The law merely provides that the alienation or mortgage
shall be limited only to the portion of the property which may be
allotted to him upon termination of the co-ownership. The only
remedy of the remaining co-owners then is to exercise their right to
redeem, within a specified period, the shares which may have been
sold to the third party.
(2) YES, under Art. 498 of the Civil Code, it should be.
Under Art. 498, the sale of the property held in common
referred to in the above article is resorted to when:
1. the right to partition the property among the co-
owners is invoked by any of them but because of the
nature of the property, it cannot be subdivided or its
subdivision would prejudice the interests of the co-owners and
2. the co-owners are not in agreement as to who among them
shall be allotted or assigned the entire property upon reimbursement
of the shares of the other co-owners.
In the present case, it was VDA. DE ZABALLERO ET AL. who invoked the
partition of the property although the property was indivisible and it was not
agreed upon that it should be sold to REYES ET AL. since there was a more
favorable offer from VOLCANO SECURITIES. Hence, under the provision, as a
last resort, the property must be sold in a public sale and that distribution of
the proceeds thereof should be made among the co-owners afterwards.
ARTICLE 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 co-ownership shall also remain in force, notwithstanding
the partition.
ARTICLE 500: Upon partition, there shall be 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.
ARTICLE 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.
THE FOLLOWING ARE THE EFFECTS OF PARTITION:
1. mutual accounting of benefits received;
2. mutual reimbursement;
3. indemnity for damages caused by reason of
his negligence or fraud;
4. reciprocal warranty in case of eviction or loss
of quality or hidden defects.
 EXCEPT:
1) when there is contrary stipulation;
2) when the eviction is due to subsequent partition to
one evicted
3) the co-owner has exclusive possession of the part
allotted to him from the entire period during which
possession lasted.
o There is retroactive effect.
4) they have exclusive title over their respective share
under Art. 1091.
EXTINGUISHMENT OF CO-OWNERSHIP:
1. By partition (judicial or extra judicial);
2. If the co-owner acquires ownership of the whole property thru
acquisitive prescription and all the requisites are complied with
(Art. 494);
3. When a stranger acquires by prescription of the thing that is
owned in common (10 to 30 years, good faith or bad faith
respectively) after repudiation;
4. Merger in one co-owner (when on acquires the share of another
like by renouncing his share for the expenses incurred for the
preservation until there’s no more to renounce);
5. loss or destruction of the thing owned in common;
6. Expropriation by the government.
POSSESSION
ARTICLE 523: Possession is the holding of a thing or the enjoyment
of a right.
2 KINDS:
1. the holding of a thing
2. the enjoyment of a right
 the holding of a thing is possession proper
 The exercise of a right or enjoyment of a right is quasi-possession
 Is Possession a Fact or a Right?
It is really a fact (since it exists); but from the moment it exists, certain
consequences follow, thus making possession also a right.

 What is the relationship between ownership and
possession?
As a gen. rule, possession is an element of ownership;
however this rule is not absolute because there are
circumstances or instances where the owner of the thing does
not posses the thing.
Right to Possession
 Right to possession is merely an incident of ownership.
 This is independent of ownership whereby a person is
placed in possession of a thing by virtue of a right but
not of ownership.
 He is not the owner but he has the right to possess. This
is an independent right of ownership
REQUISITES OF POSSESSION:
1. There must be a holding or control (this holding may be
actual or constructive; holding here means occupancy or
seizure of a thing);
2. There is intent to hold or the animus or desire;
3. The possession must be by virtue of one's own right.
CLASSES OF POSSESSION
a. possession in ones own name or possession
in the name of another (art. 524)
b. Possession in the concept on an owner or
possession in the concept of a holder (art.
525)
c. Possession in good faith or in bad faith (art.
526)
DEGREES OF POSSESSION:
1. The mere holding or having, without any right
whatsoever.
ex: possession of a thief
2. Possession with juridical title but not that of ownership.
This is called juridical possession.
Examples: that of a lessee, pledgee,
usufructuary.
3. Possession with just title but not from the true owner.
This is called real possessory right.
Example: a vendee who purchases a car from
another (vendor) who merely pretended to
be the owner of a car. So there is transfer but
this is not sufficient to transfer ownership
because there is a defect in the title of the
vendor in that he is not the owner thereof
4. Possession with title of dominion. This is really
ownership or possession that springs from ownership
 VIEWPOINT OF POSSESSION:
1) jus possidendi – the right to possess. This is a
right or incident of ownership.
Example: I own a house; therefore I am entitled to
posses it.
2) jus possessionis – this is right of possession.
This is an independent right of itself,
independent of ownership.
Example: the lessee renting an apartment.
Although he is not the owner, still by virtue of the
lease contract, he is entitled to possess.
CLASSES OF POSSESSION:
1. In one’s own name or in that of another (Art 524)
2. In the concept of owner (en concepto de duento) and in
the concept of holder. (Art 525)
3. In good faith (bona fide) or in bad faith (mala fide)
ARTICLE 524: Possession may be exercised in one’s own name or in
that of another.
 Possession may be exercised in one’s own name or name of
another.
 Possession in Another’s Name:
1) Voluntary – as when the agent possesses for the
principal
2) Necessary – as when a mother possesses for a child still
in maternal womb
3) Unauthorized – this will become the principal’s
possession only after there has been a ratification w/o
prejudice to the effects of negotiorum gestio)
DE LUNA vs. CA
GR No. 94490. August 6,1992
Possession of a lessor redounds to the benefit of the owner since
possession may be exercised in one's own name or in that of
another. The owner then may file an action for forcible entry
against a usurper.
FACTS
Since 1932, petitioner JOSE DE owned an unregistered parcel of land
with an area of 30,856 square meters, located in Botolan, Zambales. In 1971,
defendants Octavio Daclison, Oscar Crispin, and private respondents JUAN
DIMAANO, JR. and GERINO DOBLE entered the land. Despite DE LUNA’s
objections, they began plowing the land, fenced it with barbed wire and
began planting sugar cane thereon.
In 1972, DE LUNA LUNA filed a complaint in court for forcible entry. He
prayed that DIMAANO, JR. and DOBLE be ordered to vacate the land and pay
him the amount of P45 monthly per hectare until possession thereof would
be transferred to him.
DIMAANO, JR. and DOBLE on the other hand denied the material
allegations of the complaint.
Crispin and DOBLE alleged that they have not entered nor occupied the
disputed property.
DIMAANO, JR. stated that DE LUNA was not the owner of the property.
He alleged that the owner of it was his uncle Agustin Dequiña, Sr., who
possessed it from 1945 to 1972, having acquired it from his mother Agustin
Dequiña, Jr., who originally owned it since 1906.
The trial court rendered judgment in favor of DE LUNA. On appeal, the
RTC reversed the decision and concluded that Agustin Dequiña, Jr. was the
owner of the property. The same was affirmed by the Court of Appeals.
Aggrieved, DE LUNA elevated the case to the Supreme Court. He
contended that the Court of Appeals and the Regional Trial Court erred in
determining the ownership of the disputed property in an action for
ejectment and concluded that Agustin Dequiña, Jr. was the owner of the
property.
ISSUES
Whether or not DE LUNA had prior possession of the property.
RULING
YES, he had prior possession of the property.
In ejectment cases, the only issue to be resolved therein is who is
entitled to the physical or material possession of the premises, or possession
de facto, independent of any claim of ownership that either party may set
forth in their pleadings.
If petitioner can prove prior possession in himself, he may recover such
possession from even the owner himself. Whatever may be the character of
his prior possession, if he has in his favor priority of time, he has the security
that entitles him to stay on the property until he is lawfully ejected by a
person having a better right by either accion publiciana or accion
reivindicatoria.
However, where the question of possession cannot be resolved without
deciding the question of ownership, an inferior court has the power to
resolve the question of ownership but only insofar as to determine the issue
of possession.
In the case at bar, the inferior court acted correctly in receiving
evidence regarding the ownership of the disputed property, inasmuch as
respondent DIMAANO, JR. claimed to possess the property by
virtue of a lease agreement with the alleged owner thereof,
AGUSTIN DEQUIÑA, JR.
However, the Court of Appeals erred in upholding the
Regional Trial Court regarding the conclusion that the subject
property was owned by Agustin Dequiña, Jr. and therefore
respondent DIMAANO, JR. was entitled to possess the same.
DE LUNA had shown that he had prior possession of the
property. This was established by the testimony of his witnesses,
notably that of his tenant Epigenio Dilag and Victor dela Cruz:
1. In 1938, the property was delivered to DE LUNA and his
mother Apolonia Dequña by Agustin Dequiña, Sr. when
they and their brothers and sisters partitioned among
themselves the properties of their deceased parents.
2. From 1938 to 1941, DE LUNA and his mother cultivated
the land.
3. From 1944 to 1952, the witness, dela Cruz, leased the
land from DE LUNA and his mother.
4. From 1953 to 1972 (until DIMAANO, JR. entered the
property), the property was leased to Dilag.
While petitioner admitted that he declared the property for
taxation purposes only in 1957, he had possessed the property
beginning 1953 at the very latest, when he leased the same to
Epigenio Dilag. Moreover, there was evidence to the effect that DE
LUNA possessed the property even earlier than 1953.
The possession of the property by Dilag since 1953 and dela
Cruz, redounded to the benefit of DE LUNA, since possession may
be exercised in one's own name or in that of another.
On the other hand, DIMAANO, JR. had failed to prove that
Agustin Dequiña, Jr. possessed the property prior to his possession,
much less the ownership of the latter over said property. The mere
fact that Agustin Dequiña, Sr. had declared the subject property for
taxation purposes from 1908 up to 1945 did not constitute
possession thereof nor was it proof of ownership in the absence of
DEQUIÑA, JR.'s actual possession of said property.
However, it goes without saying that this case did not bar DE
LUNA and Agustin Dequiña, Jr. from resolving the issue of
ownership over the disputed property in an appropriate
proceeding.
ARTICLE 525: The possession of things or rights may be had in one
of two concepts: either in the concept of an owner, or in that of the
holder of the thing or right to keep or enjoy it, the ownership
pertaining to another person.
 The possession of things or rights may be had in one of 2
concepts:
1) either in the concept of an owner; or
2) in that of a holder of the thing or right to
keep it or enjoy it, the ownership pertaining
to another person
Example:
A purchased a land from X knowing him not to be the owner. But
he exercises acts of ownership over it and his friend believes that
he is the owner. In time, thru prescription, A becomes the owner
because his possession is in concepto de dueno. If a tenant leases
the land from A, he possesses the land in the concept of holder.
Possession in the concept of holder. The possession is of the
property concerned. Regarding their respective rights (the lease
right, the usufruct, the right to safeguard the thing, the right to use
the thing), all are possessed by them, respectively, in the concept
of owner. Hence, the possession of the THING itself is distinguished
from the possession of the RIGHT TO ENJOY the thing ( or benefit
from it)
GARCIA vs. CA
GR No. 133140. August 10, 1999
The records show that GARCIA occupied the property
not in the concept of an owner for his stay was merely
tolerated by his parents. An owner's act of allowing
another to occupy his house, rent-free does not create a
permanent and indefeasible right of possession in the latter's
favor.
FACTS
Atty. Pedro V. Garcia with the consent of his wife Remedios sold their
registered lot situated at Bel Air II Village in Makati in favor of private
respondents – their daughter MA. LUISA MAGPAYO and her husband LUISITO
MAGPAYO.
In 1981, SPOUSES MAGPAYO mortgaged the land to the Philippine Bank
of Communications (PBCom) to secure a loan, P564,000 according to them,
P1,200,000according to PBCom. Title in the name of Atty. Pedro V. Garcia
was cancelled and a new one was issued in the name of SPOUSES MAGPAYO.
In the title, the Deed of Real Estate Mortgage was annotated on it.
However, SPOUSES MAGPAYO failed to pay their loan upon its maturity,
hence, the mortgage was extrajudicially foreclosed. During the public auction
sale, PBCom, which was the highest bidder bought the land. After the 1 year
redemption period expired without the SPOUSES MAGPAYO redeeming the
same, the latter’s title was cancelled and title over the land was consolidated
in favor of PBCom.
1985, the SPOUSES MAGPAYO filed a complaint seeking the nullification
of the extrajudicial foreclosure of mortgage, public auction sale, and PBCom's
but it was dismissed. Later, PBCom filed a petition for the issuance of a writ
of possession over the land, which was granted.
However, petitioner JOSE MA. T. GARCIA, the brother of MA. LUISA
MAGPAYO was the one in possession of the land and he refused to honor the
writ of possession. Then, GARCIA filed against PBCom, the SPOUSES
MAGPAYOS and the RTC Sheriff an action for recovery of realty and damages
wherein he alleged that he inherited the land as one of the heirs of his
mother Remedios T. Garcia and that PBCom acquired no right thereover.
PBCom averred, however that GARCIA's claim over the land was belied
by the fact that it was not among the properties owned by his mother listed
in the Inventory of Real Estate.
The SPOUSES MAGPAYOS, on the other hand, asserted that title over
the land was transferred to them by MA. LUISA MAGPAYO’S parents, Atty.
Pedro and Remedios Garcia, to enable them to borrow money from PBCom.
The court held that the mortgage executed by the MAGPAYO SPOUSES
in favor of PBCom was void. It found that the mortgage was executed on
March 5, 1981 but the new Torrens title was issued to the MAGPAYO
SPOUSES was only on March 9, 1981. It held that the MAGPAYO SPOUSES
could not have acquired the said property merely by the execution of the
Deed of Sale because the property was in the possession of GARCIA. It then
invalidated the foreclosure sale and nullified the title issued to PBCom.
Dissatisfied, PBCom appealed. The Court of Appeals reversed the decision of
the trial court.
Hence, this appeal by GARCIA.
ISSUE
Whether or not GARCIA’s ownership was in the concept of an owner.
RULING
NO, his ownership was in the concept of a holder.
GARCIA's possession as found by the trial court, started only at the time
of the filing of the complaint. Assuming that to be true, his possession which
started only in 1986 could not ripen into ownership. He had no valid title
thereto. His possession in fact was that of an intruder, one done in bad faith
(to defeat PBCom's Writ of Possession). His possession was certainly not in
the concept of an owner. This is so because as early as 1981, title thereto was
registered in the name of the SPOUSES MAGPAYO which title was
subsequently cancelled when the property was purchased by PBCom in a
public auction sale resulting in the issuance of title in favor of the latter in
1985.
Possession and ownership are distinct legal concepts. Ownership exists
when a thing pertaining to one person is completely subjected to his will in a
manner not prohibited by law and consistent with the rights of others.
Ownership confers certain rights to the owner, one of which is the right to
dispose of the thing by way of sale. Atty. Pedro Garcia and his wife Remedios
exercised their right to dispose of what they owned when they sold the
subject property to the SPOUSES MAGPAYO.
On the other hand, possession is defined as the holding of a thing or the
enjoyment of a right. Literally, to possess means to actually and physically
occupy a thing with or without right. Under Art. 542 of the Civil Code,
possession may be had in one of two ways: possession in the concept of an
owner and possession of a holder. A possessor in the concept of an owner
may be the owner himself or one who claims to be so. On the other
hand, one who possesses as a mere holder acknowledges in
another a superior right which he believes to be ownership,
whether his belief be right or wrong.
The records show that GARCIA occupied the property not in
the concept of an owner for his stay was merely tolerated by his
parents. An owner's act of allowing another to occupy his house,
rent-free does not create a permanent and indefeasible right of
possession in the latter's favor. Consequently, it was of no moment
that GARCIA was in possession of the property at the time of the
sale to the SPOUSES MAGPAYO. It was not a hindrance to a valid
transfer of ownership. On the other hand, GARCIA's subsequent
claim of ownership as successor to his mother's share in the
conjugal asset was belied by the fact that the property was not
included in the inventory of the estate submitted by his father to
the intestate court. This buttresses the ruling that indeed the
property was no longer considered owned by petitioner's parents.
The mortgage to PBCom by the SPOUSES MAGPAYO was valid
notwithstanding that the transfer certificate of title over the
property was issued to them after the mortgage contract was
entered into. Registration does not confer ownership, it is merely
evidence of such ownership over a particular property. The deed of
sale operates as a formal or symbolic delivery of the property sold
and authorizes the buyer to use the document as proof of
ownership.
MANGAHAS vs. CA
GR No. 95815. March 10, 1999
Acquisition of ownership under the law on prescription
cannot be pleaded in support of MANGAHAS' submission
that subject land has ipso jure become his private
property.
FACTS
Since 1955, the spouses Severo and Caridad S. Rodil, occupied
and possessed an agricultural land with an area of 15.0871
hectares. Petitioner, SERVANDO MANGAHAS, had been in
possession thereof by virtue of the agreement between him and
the spouses Rodil, allowing him to occupy and cultivate the said
parcel of land.
In the Kasulatan ng Pagtanggap ng Salapi, MANGAHAS paid
the amount of P7,000 to the spouses Rodils for allowing him to
occupy and cultivate the same. 12 hectares of the property were
then developed into a fishpond, 2 hectares were planted with rice
and 1 hectare was used as "tumana" with a house erected thereon.
In 1971, the spouses Rodil decided to sell the said piece of
land. MANGAHAS approached private respondent SPOUSES PABLO
SIMEON AND LEONORA CAYME to offer to them the property for
sale. The SPOUSES CAYME agreed to purchase the property for
P7,000 and MANGAHAS was the broker of such sale. An Affidavit of
proof to such was executed by the Spouses Rodil in favor of the
SPOUSES CAYME in the presence of the herein MANGAHAS. The
SPOUSES CAYME, on the same day, filed a free patent application
for the land, which was later approved. Later, title in their names
was issued.
The SPOUSES CAYME permitted MANGAHAS to continue
possessing and working on the same land, even after the sale, upon
the request of the former themselves because they were then busy
in their palay business. The SPOUSES CAYME did not get any share
in the fruits or harvest of the land except on one occasion, when
MANGAHAS gave them 1/2 "tiklis" (big basket) of "tilapia".
Later, the SPOUSES CAYME had demanded from MANGAHAS
the return of the premises in question but the latter refused to
vacate the place. In 1985, the SPOUSES CAYME commenced an
action for recovery of ownership and the possession of real
property.
MANGAHAS theorized that he entered into the possession of
the land under controversy in 1969 by virtue of a prior sale he
inked with the spouses Rodil in 1969. He averred that he had been
in continuous occupation and possession in concepto de dueño,
enjoying the fruits thereof to the exclusion of all others, his right
thereto being evidenced by the Kasulatan ng Pagtangap ng Salapi dated
1969. He also denied that he brokered the sale between the spouses Rodil
and SPOUSES CAYME.
The trial court ruled against MANGAHAS. It held that the SPOUSES
CAYME WERE the absolute and registered owners of the land in question. It
also ordered MANGAHAS to remove his house constructed thereon and
deliver the possession to the SPOUSES CAYME. The Court of Appeals affirmed
the same decision.
Hence, this appeal.
ISSUE
Whether or not MANGAHAS possessed the property in the concept of
an owner.
RULING
NO, MANGAHAS only possessed it in the concept of a holder for the
following proofs:
1. the spouses Rodil only allowed him to occupy and cultivate the
said parcel of land by lease werein MANGAHAS paid P7,000 as
evidenced by the Kasulatan ng Pagtanggap ng Salapi,
2. MANGAHAS was the one who offered the property for sale to the
SPOUSES CAYME when the spouses Rodil decided to sell it. In fact,
he was the broker of the sale, and
3. on one occasion, MANGAHAS gave the SPOUSES CAYME 1/2
"tiklis" (big basket) of "tilapia".
Prescription did not run in favor of Mangahas
MANGAHAS's grantor or predecessor in interest spouses RODIL took
possession of the property, subject matter of the litigation in 1955. Since the
complaint in the case at bar was filed in 1985, the requirement of at least 30
years continuous possession has not been complied with even if we were to
tack Rodil's period of possession.
MANGAHAS could not now feign ignorance of such judicial admission
which he had resolutely repudiated in his present petition. Acquisition of
ownership under the law on prescription cannot be pleaded in support of
MANGAHAS' submission that subject land has ipso jure become his private
property.
MAGLUCOT-AU vs. MAGLUCOT
GR No. 132518. March 28, 2000
RESPONDENTS only possessed Lot D in the concept of a holder for
the reason that they had been paying rent as lessees thereon. Had
they been of the belief that they were co-owners of the entire Lot
1639, they would not have paid rent. One who possesses as a
mere holder acknowledges in another, a superior right which he
believes to be ownership, whether his belief be right or wrong.
FACTS
Lot No. 1639 was co-owned by 6 persons. In 1927, a title in their names
was issued. In 1952, Tomas Maglucot, one of the registered owners and
RESPONDENTS' predecessor-in-interest, filed a petition to subdivide Lot No.
1639. Consequently, it was divided into 6 portions.
After partition, Lot D was awarded to Roberto Maglucot, predecessor-
in-interest of PETITIONERS GAVINA MAGLUCOT-AW ET AL. while Lot F was
awarded to Tomas Maglucot, predecessor-in-interest RESPONDENTS
LEOPOLDO MAGLUCOT.
In 1963, Guillermo Maglucot rented a portion of Lot D. Subsequently,
respondents LEOPOLDO and SEVERO MAGLUCOT, rented portions of the
same lot in 1964 and 1969, respectively, and each paying rentals therefor.
They built houses on their corresponding leased lots and paid the rental
amount of P100 per year to Mrs. Ruperta Salma, who represented the heirs
of Roberto Maglucot.
In 1992, however, said respondents stopped paying rentals claiming
ownership over the subject lot.
Hence, an action for recovery of possession and damages was filed by
PETITIONERS against RESPONDENTS. The latter however contended that no
partition was effected and hence, they were co-owners of Lot D.
After trial, the lower court rendered judgment in favor of PETITIONERS
and ordered RESPONDENTS to demolish their respective houses and vacate
the premises. Although there was an order for partition but there was no
proof that the sketch/subdivision plan was submitted to court for its approval
or that a decree or order was registered in the Register of Deeds. It
based its decision on the tax declarations by the original co-owners
as to their respective shares after partition. In fact, the tax
declarations over the houses of RESPONDENTS, expressly stated
that the same are constructed on the lot of Roberto Maglucot. It
then constitutes a conclusive admission by them of the ownership
of the subject lot by the latter. It also added that RESPONDENTS
were estopped by the fact that it was their predecessor-in-interest,
Tomas Maglucot, who commenced the action for partition and
took active part in the process.
On appeal, the Court of Appeals reversed the decision of the
RTC. The appellate court ruled that the sketch plan and tax
declarations relied upon by PETITIONERS were not conclusive
evidence of partition. It thus declared that there was no partition of
Lot No. 1639.
Hence, this appeal by PETITIONERS. They contended that Lot
1639 was mutually partitioned and physically subdivided among
the co-owners and that majority of them participated in the actual
execution of the subdivision. They opined that in 1952, it was
Tomas Maglucot, predecessor-in-interest of RESPODENTS, who
initiated a court proceeding for a formal subdivision of Lot 1639.
Further, the co-owners accepted their designated shares in 1946 as
averred by Tomas Maglucot in his petition for partition. Thus,
RESPONDENTS were estopped from asserting that there was no
partition made. PETITIONERS further contend that respondents
admitted in their tax declarations covering their respective houses
that they are "constructed on the land of Roberto Maglucot."
RESPONDENTS rebutted firstly that PETITIONERS failed to
show that the interested parties were notified of the tentative
subdivision contained in the sketch and that the CFI subsequently
confirmed the same. Second, they point to the fact that petitioners
were unable to show any court approval of any partition. Third,
they maintained that Lot 1639 remained undivided since to date,
its title contained no annotation of partition or whatsoever.
ISSUE
1. Whether or not there was partition.
2. Whether or not the RESPONDENTS possessed Lot D in the
concept of an owner since they argued that they were co-owners of
the lot.
RULING
(1) YES, there was partition.
The records of the case show that sometime in 1946 there
was a prior oral agreement to tentatively partition Lot 1639. By
virtue of this agreement, the original co-owners occupied specific
portions of Lot 1639. It was only in 1952 when the petition to
subdivide Lot 1639 was filed because two of the co-owners, namely
Hermogenes Olis and heirs of Pascual Olis, refused to have said lot
subdivided and have separate certificates of title. Significantly,
after the 1952 proceedings, the parties in this case by themselves
and/or through their predecessors-in-interest occupied specific
portions of Lot 1639 in accordance with the sketch plan. Such
possession remained so until this case arose, or about 40 years
later.
Parties to a partition proceeding, who elected to take under
partition, and who took possession of the portion allotted to them,
are estopped to question title to portion allotted to another party.
A person cannot claim both under and against the same
instrument. In other words, they accepted the lands awarded them
by its provisions, and they cannot accept the decree in part, and
repudiate it in part. They must accept all or none. Parties who had
received the property assigned to them are precluded from
subsequently attacking its validity of any part of it.
Here, RESPONDENTS, by themselves and/or through their
predecessors-in-interest, already occupied of the lots in accordance
with the sketch plan. This occupation continued until this action
was filed. They cannot now be heard to question the possession
and ownership of the other co-owners who took exclusive
possession of Lot D also in accordance with the sketch plan.
(2) NO. RESPONDENTS only possessed Lot D in the concept of a
holder for the reason that they had been paying rent as lessees
thereon. Had they been of the belief that they were co-owners of the entire
Lot 1639, they would not have paid rent.
The payment of rentals by RESPONDENTS reveal that their possession of
over Lot D was that of a holder and not in the concept of an owner. One who
possesses as a mere holder acknowledges in another a superior right which
he believes to be ownership, whether his belief be right or wrong. Since the
possession of RESPONDENTS were found to be that of lessees of
PETITIONERS, it goes without saying that the latter were in possession of Lot
No. 1639-D in the concept of an owner from 1952 up to the time the present
action was commenced.
To bolster the fact that they possessed the land in the concept of a
holder, RESPONDENTS Wilfreda Maglucot-Alejo and Constancio Alejo offered
to buy the share of Roberto Maglucot. However, this did not prosper as
PETITIONERS refused to sell it.
Moreover, no evidence was ever presented to show that a tax
declaration for the entire Lot 1639 has ever been made. In fact, after
partition, tax declarations were made for every specific lot by each owner
thereof. In fact, Lot D, where RESPONDENTS’ houses were built thereon were
declared for tax purposes in the name of Roberto Maglucot.
2 phases in an action for partition;
1. an order for partition which determines whether a co-
ownership in fact exists, and whether partition is proper, and
The first phase of a partition and/or accounting suit is
taken up with the determination of whether or not a co-ownership
in fact exists, (i.e., not otherwise legally proscribed) and may be
made by voluntary agreement of all the parties interested in the
property. This phase may end with a declaration that plaintiff is
not entitled to have a partition either because a co-ownership
does not exist, or partition is legally prohibited. It may end, upon
the other hand, with an adjudgment that a co-ownership does in
truth exist, partition is proper in the premises and an accounting
of rents and profits received by the defendant from the real estate
in question is in order. In the latter case, the parties may, if they
are able to agree, make partition among themselves by proper
instruments of conveyance, and the court shall confirm the
partition so agreed upon. In either case - i.e., either the action is
dismissed or partition and/or accounting is decreed - the order is a
final one, and may be appealed by any party aggrieved thereby.
2. a decision confirming the sketch or subdivision submitted
by the parties or the commissioners appointed by the court, as the
case may be.
The second phase commences when it appears that
"the parties are unable to agree upon the partition" directed by
the court. In that event, partition shall be done for the parties by
the court with the assistance of not more than three (3)
commissioners. This second stage may well also deal with the
rendition of the accounting itself and its approval by the court
after the parties have been accorded opportunity to be heard
thereon, and an award for the recovery by the party or parties
thereto entitled of their just share in the rents and profits of the
real estate in question. Such an order is, to be sure, final and
appealable.
ARTICLE 526: He is deemed a possessor in good faith who is not
aware that there exists in his title or mode of acquisition any flaw
which invalidates it.
He is deemed a possessor in bad faith, who possesses in
any case contrary to the foregoing.
Mistake upon doubtful or difficult question of law
may be the basis of good faith
 Awareness of any flaw is the question of knowledge. So that if he
is not aware, he is in good faith. If he is aware then he is in bad
faith
 SC said where a party's mere refusal to believe that a defect exists
or his willful closing of his eyes to the possibility of a vendor's
defect to his title will not make him an innocent purchaser for
value if it afterwards develop that the title was in fact defective.
Hence if circumstances exist that requires a prudent man to
investigate, he will be in bf if he does not investigate. (Rep. vs. CA
(102 Scra 331 in relation to Wong vs. Carprio 203 Scra 118)
Possessor in Good Faith. One who is not aware that there exists in
his TITLE or MODE of acquisition any flaw which invalidates it.
 While the possessor in good faith is one who BELIEVES
he is the owner, the possessor in the concept of owner
is one who ACTS as if he is the owner.
Possessor in Bad Faith. One who is not in good faith. (Hence, if
circumstances exist that require a prudent man to investigate, he
will be in bad faith if he does not investigate.
The ff. may be the basis of good faith:
1. Error in the application of the law, in legal solutions
that arise from that application ( the error is not
gross and therefore excusable)
2. error in the appreciation of the legal consequences of
certain acts
3. errors in the interpretation of doubtful provisions or
doctrines
ARTICLE 527: Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the burden of
proof.
There is a presumption that where one is in possession of the
property, there is a presumption that the possession is in good faith.
And upon him who alleges bad faith on the part of a possessor rests
the burden of proof.
ARTICLE 528: Possession acquired in good faith does not lose this
character except in the case and from the moment facts exist which
show that the possessor is not unaware that he possesses the thing
improperly or wrongfully.
If one is in possession and his possession is in good faith, he will
remain in good faith until such time when bad faith begins.
 When Possession in Good Faith is Converted to
Possession in Bad Faith:
a. From the moment facts exist showing the
possessor’s knowledge of the flaw; from that time
should he be considered a possessor in bad faith.
b. It does not matter whether the facts were caused
by him or by some other person.
 When Bad Faith Begins:
 From the moment facts exist which show that the
possessor is aware that he possesses the thing
improperly or wrongfully.
 The reckoning period is not the knowledge itself
but when the facts would show that the possessor
has evident knowledge of the flaw.
 When would the facts exist? When someone produces
evidence.
 What is the significance of good faith and bad faith
with respect to the owner of the property? No
significance because he is already the owner of the
property.
EMBRADO vs. CA
GR No. 51457. June 27, 1994
The rule is settled that a buyer of real property which is
in the possession of persons other than the seller must
be wary and should investigate the rights of those in
possession. Otherwise, without such inquiry, the buyer
can hardly be regarded as a buyer in good faith.
FACTS
Juan, Pastor and Matias Carpitanos originally owned a 366-
square meter lot in Dipolog City.In 1946, a Venta Definitiva, a
notarized document written entirely in Spanish, was executed by
the Carpitanos whereby they sold said lot to petitioner LUCIA C. EMBRADO,
who was referred to as “single”. The document provided that even though
the Deed was prepared and signed in 1946, the effects of the document
would retroact to the date the lot and its improvements were actually sold to
EMBRADO in 1941.
Thereafter, the sale was registered and a title was issued in the name of
LUCIA EMBRADO alone. Later, the word “single” in the title was cancelled
and was replaced by “married to ORESTE TORREGIANI", the latter, who was
LUCIA EMBRADO’s husband since 1943. The TORREGIANIs then constructed
their conjugal abode on the lot and in 1958 constructed a
residential/commercial building thereon.
In 1971, EMBRADO sold the land for P1,000 to her adopted daughter,
herein private respondent EDA JIMENEZ, who was married to SANTIAGO
JIMENEZ. In the Absolute Deed of Sale, the property was referred to as
EMBRADO’s "own paraphernal property".
In 1972, EDA sold 65 sq. m of the lot to private respondent MARCOS
SALIMBAGAT for P6,500, and 301 sq. m. of the same lot to private
respondent PACIFICO CIMAFRANCA for P30,000. Both sales were duly
annotated on the title.
In the same year, the TORREGIANIs instituted an action for declaration
of nullity of contract, annulment of sales, reconveyance and damages against
the private respondent SPOUSES JIMENEZ, MARCOS SALIMBAGAT and
PACIFICO CIMAFRANCA. They alleged that the sale that the sale of the lot by
LUCIA to EDA was void not only for lack of consideration but also because
ORESTE TORREGIANI did not consent to the sale, which consent was
necessary because the lot was conjugal property. They also claimed that that
LUCIA was misled into signing the Deed of Sale on the belief that the lot was
merely intended as security for a loan that the SPOUSES JIMENEZ spouses
were then negotiating. Since the SPOUSES JIMENEZ did not acquire valid title
to the land, the subsequent sales in favor of SALIMBAGAT and CIMAFRANCA
were without legal effect.
The TORREGIANIs were sustained by the trial court, which held that the
sale of Lot 564 to EDA and its subsequent transfers to SALIMBAGAT and
CIMAFRANCA, who were declared buyers in bad faith, were void and of no
effect.
The Court of appeals reversed the said judgment. It held that since
LUCIA actually agreed with Juan, Pastor and Matias Carpitanos, the original
owners, to the purchase of Lot 564 in 1941 when she was not yet married,
then the lot was her paraphernal property. In addition, the respondent court
declared SALIMBAGAT and CIMAFRANCA were buyers in good faith since the
contrary was not proved.
ISSUE
Whether or not SALIMBAGAT and CIMAFRANCA were buyers in good
faith for purposes of protection under the Torrens system of registration.
RULING
NO, they were not. They were buyers in bad faith. Hence, they were not
entitled to protection under the Torrens system of registration.
Lot 564 was the conjugal property of the TORREGIANI since LUCIA
purchased it from the Capitranos in 1946 when her marriage to ORESTE was
already subsisting.
The Sale in favor of EDA was void because it was made with fraud and
that if indeed it was sold, it was made without the consent of LUCIA’s
husband, the property being a conjugal one.
SALIMBAGAT and CIMAFRANCA were buyers in bad faith
SALIMBAGAT and CIMAFRANCA had not proven that they were
purchasers in good faith. The burden of proving the status of a purchaser in
good faith and for value lies upon him who asserts that status.* In
discharging the burden, it is not enough to invoke the ordinary presumption
of good faith, i.e. that everyone is presumed to act in good faith. The good
faith that is here essential is integral with the very status which must be
proved.
We agree with the trial court when it found that SALIMBAGAT and
CIMAFRANCA purchased the disputed lot from EDA and SANTIAGO JIMENEZ
with knowledge of facts and circumstances which should have put them
upon such inquiry and investigation as might be necessary to acquaint them
with the defects in the title of their vendor. A purchaser cannot close his eyes
to facts which should put a reasonable man on his guard and then claim that
he acted in good faith under the belief that there was no defect in the title of
the vendor. His mere refusal to believe that such defect exists, or his willful
closing of his eyes to the possibility of the existence of a defect in the
vendor's title will not make him an innocent purchaser for value if afterwards
it develops that the title is in fact defective, and it appears that he
had such notice of the defect as would have led to its discovery had
he acted with the measure of precaution which may reasonably be
required of a prudent man in like situation.
CIMAFRANCA was a close relative of SANTIAGO and at the
same time godfather to one of his children. It would be impossible
for CIMAFRANCA not to know that SANTIAGO was only 22 years
old, a working student earning P6 per day with a wife and three
children to support. With these facts, there is every reason for him
to inquire further as to how EDA came up with the sum of P1,000
to buy the property, when she was unemployed.
On the part of SALIMBAGAT, he has a daughter renting a
portion of the building with her husband for more than a year prior
to the sale by EDA to him. During the time that SALIMBAGAT was
already interested in buying the property, it would have been usual
and part of ordinary human nature for him to inquire about the
property from his daughter who was living very near the supposed
owners. SALIMBAGAT had some knowledge of the financial status
of the supposed vendors which should have put him on guard
before buying the property and would have known that at the time
of the sale to him and CIMAFRANCA, the TORREGIANIs had already
been in continuous possession of the property for 14 years since
1958.
Before buying the property, SALIMBAGAT and CIMAFRANCA
allegedly inquired from the office of the Register of Deeds
concerning the genuineness of the certificate of title of EDA, and
from the court as to whether the property was involved in any
litigation. However, they failed to inquire from petitioners as to
why they were the ones in actual possession of the property.
The rule is settled that a buyer of real property which is in the
possession of persons other than the seller must be wary and
should investigate the rights of those in possession. Otherwise,
without such inquiry, the buyer can hardly be regarded as a buyer
in good faith. When a man proposes to buy or deal with realty, his
first duty is to read the public manuscript, i.e., to look and see who
is there upon it, and what are his rights. A want of caution and
diligence which an honest man of ordinary prudence is accustomed
to exercise in making purchases is, in contemplation of law, a want
of good faith. The buyer who has failed to know or discover that
the land sold to him is in the adverse possession of another, is a
buyer in bad faith.
* This is in contrast to Art. 527 of the Civil Code which
states that “…upon him who alleges bad faith on the
part of the possessor rests the burden of proof.”
ALVIOLA vs. CA
GR No. 117642. April 24, 1998
There was bad faith on the part of the SPOUSES ALVIOLA
when they constructed the copra dryer and store on the
disputed portions since they were fully aware that the
parcels of land belonged to Victoria Tinagan.
(refer to Page 17)
DBP vs. CA
GR No. 111737. October 13, 1999
Good faith of the possessor ceases when an action to
recover possession of the property is filed against him
and he is served summons therefore. In the present case,
DBP was served summons in 1982. By that time, it was
no longer in possession of the disputed land as
possession thereof was given back to the PIÑEDAS after
the foreclosure of DBP was declared null and void.
FACTS
Respondent SPOUSES TIMOTEO and SELFIDA S. PIÑEDA were
registered owners of a parcel of land in Dumarao, Capiz containing
an area of 238,406 sq. m, which was covered by a homestead patent.
In 1972, the PIÑEDAS mortgaged said land to petitioner DEVELOPMENT
BANK OF THE PHILIPPINES (DBP) to secure their P20,000-agricultural loan.
Later, The PIÑEDAS failed to comply with the terms and conditions of the
mortgage that DBP extrajudicially foreclose it in 1977. In the foreclosure sale,
DBP was the highest bidder and a Sheriff Certificate of Sale was executed in
its favor. In Said Certificate, it was indicated therein that the redemption shall
be within 5 years from the date of the registration of the title. This Certificate
was later registered in the Registry of Deeds.
In 1978, after the expiration of the 1-year redemption period under
Section 6 of Act 3135, DBP consolidated its title over the foreclosed property
by executing an Affidavit of Consolidation of Ownership. Subsequently, a
Final Deed of Sale was executed in DBP's favor, which was registered
together with the Affidavit of Consolidation of Ownership. A new title was
thereafter issued to DBP and it took possession of the foreclosed property
and appropriated the produce thereof.
1978, the Ministry of Justice opined that as the mortgage had ceased to
exist upon the transfer of title to the tenant by virtue of the promulgation of
P.D. No. 27 in 1972, there could be no mortgage to foreclose and therefore
no subject for the foreclosure proceedings.
In 1981, the PIÑEDAS offered to redeem the foreclosed property by
offering P10,000 as partial redemption payment. This amount was accepted
by DBP, which conditionally approved the offer of redemption.
However, DBP sent another letter to the PIÑEDAS informing them that
pursuant to P.D. 27, their offer to redeem and/or repurchase the subject
property could not be favorably considered for the reason that said property
was tenanted. DBP later filed an action in court to to nullify the foreclosure
proceedings which was favorably acted upon.
Later, the PIÑEDAS filed an action against DBP for the cancellation of
certificate of title and/or specific performance, accounting and damages with
a prayer for the issuance of a writ of preliminary injunction. It contended that
DBP was in evident bad faith as it caused the consolidation of its title to the
parcel of land in question in spite of the fact that the 5-year redemption
period expressly stated in the Sheriff's Certificate of Sale had not yet lapsed
and that their offer to redeem the foreclosed property was made well within
said period of redemption.
RTC ruled in favor of the PIÑEDAS stating that DBP violated the
stipulation in the Sheriff's Certificate of Sale which provided that the
redemption period is 5 years from the registration.
DBP appealed to the Court of Appeals, which affirmed the decision of
the RTC. The Court of Appeals stated that being that DBP was in evident bad
faith when it unlawfully took possession of the property and defied what was
written on the Sheriff's Certificate of Sale, the PIÑEDAS should be entitled to
recover the fruits produced by the property or its equivalent for the 3-year
period.
Hence, this appeal by DBP. It alleged that the mere fact that DBP took
possession and administration of the property did not warrant a finding that
DBP was in bad faith:
1. the PIÑEDAS consented to and approved the takeover of DBP;
2. that Sec. 717 of Act No. 3135 allows the mortgagee-buyer to take
possession of the mortgaged property even during the redemption period;
3. that DBP's act of consolidating the title of the property in its name
did not constitute bad faith as there was no law which prohibits the
purchaser at public auction from consolidating title in its name after the
expiration of the 1 year redemption period reckoned from the time the
Certificate of Sale was registered; and neither was there any law or
jurisprudence which prohibits the PIÑEDAS from exercising their right of
redemption over said property within 5 years even if title is consolidated in
the name of the purchaser; and
4. that when it denied the PIÑEDAS' offer to redeem the property, it
was merely premised on the Opinion of the Minister of Justice which stated
that said land was covered under P.D. 27 and could not be the subject of
foreclosure proceedings. For this reason, DBP immediately filed a petition to
nullify the foreclosure proceedings which was favorably acted upon. If DBP
was really in bad faith, it would not have filed said petition for said petition
was against its own interests.
ISSUE
Whether or not DBP was in bad faith.
RULING
NO, it was not. It was a possessor in good faith.
 A possessor in good faith is one who is not aware that there
exists in his title or mode of acquisition any flaw, which invalidates
it. Good faith is always presumed, and upon him who alleges bad
faith on the part of a possessor rests the burden of proof. It was
therefore incumbent on the PIÑEDAS to prove that DBP was aware
of the flaw in its title i.e. the nullity of the foreclosure. This, they
failed to do.
The PIÑEDAS argued that DBP's bad faith stemmed from the
fact that DBP consolidated title over the disputed property despite
the statement in the Sheriff's Certificate of Sale to the effect that
said land was subject to a 5-year redemption period.
The period of redemption of extrajudicially foreclosed land is
provided under Section 6 of ACT No. 3135 which states that if no
redemption is made within 1 year, the purchaser is entitled as a
matter of right to consolidate and to possess the property.
Accordingly, DBP's act of consolidating its title and taking
possession of the subject property after the expiration of the
period of redemption was in accordance with law. Moreover, it was
in consonance with Section 4 of the mortgage contract between
DBP and the PIÑEDAS where they agreed to the appointment of
DBP as receiver to take charge and to hold possession of the
mortgage property in case of foreclosure. DBP's acts cannot
therefore be tainted with bad faith.
The right of DBP to consolidate its title and take possession of
the subject property is not affected by the PIÑEDAS' right to
repurchase said property within 5 years from the date of
conveyance granted by Section 119 of CA No. 141. In fact, without
the act of DBP consolidating title in its name, the PIÑEDAS would
not be able to assert their right to repurchase granted under the
aforementioned section.
It may be argued that P.D. 27 was already in effect when DBP
foreclosed the property. However, the legal propriety of the
foreclosure of the land was put into question only after the Opinion
of the Ministry of Justice declared that said land was covered by
P.D. 27 and could not be subject to foreclosure proceedings. The
Opinion was issued almost 2 months after DBP consolidated its title
to the property. By law and jurisprudence, a mistake upon a
doubtful or difficult question of law may properly be the basis of
good faith.
Good faith of the possessor ceases when an action to recover
possession of the property is filed against him and he is served
summons therefore. In the present case, DBP was served summons
in 1982. By that time, it was no longer in possession of the disputed
land as possession thereof was given back to the PIÑEDAS after the
foreclosure of DBP was declared null and void. Therefore, any
income collected by DBP after it consolidated its title and took
possession of the property in 1978 up to 1982 belonged to DBP as a
possessor in good faith since its possession was never legally
interrupted.
ARTICLE 529: It is presumed that possession continues to be enjoyed
on the same character in which it was acquired, until the contrary is
proved.
 If one is in actual possession of the property under
the claim of ownership, there is a disputable
presumption of ownership.
 REQUISITES:
a. one is in actual possession;
b. and he is claiming ownership
ARTICLE 530: Only things and rights which are susceptible of being
appropriated may be the object of possession.
 What may be possessed? Only things and rights
which are susceptible of being appropriated
 What may not be possessed?
a. property of public domain;
b. res communes
c. easements ( if discontinuous or non-
apparent);
d. things specifically prohibited by law
Res Nullius. Res nullius (abandoned or ownerless property) may be
possessed, but cannot be acquired by prescription.
Reason: prescription presupposes prior ownership in another. However, said
res nullius may be acquired by occupation.
DBP CASE.
Pineda mortgaged the property and then it was foreclosed. Foreclosure
normally under the law is 1 yr period (extra judicial). If the mortgagor does
not redeem, mortgagee will consolidate the title and after that, title is
transferred to the mortgagee (DBP). But what happened here was that the
foreclosure was in 1977. In 1978, there was an opinion given by the Ministry
of Justice declaring that there are some properties that may not be the
object of foreclosure proceeding. And the properties of Pineda were covered
by the opinion but DBP did not know or did not have any idea about it. In
1981, Pineda decided to redeem, did DBP refuse? NO, in honor of the
agreement with Pineda that the latter can redeem the property within 5
years and DBP already initiated the cancellation of the certificate of its own
title. It gave up the possession over the property. In truth and in fact, DBP
was merely a possessor in good faith because it was not aware of the flaw
inside, that the property was not subject of the foreclosure proceeding. DBP
would become in bad faith if it is aware of it and it still has the possession of
the property. But before it learned about the opinion, it already initiated the
cancellation so that it will be returned the property of Pineda. There was no
really interruption to put DBP in bad faith. It was no longer in possession of
the lot when it found out the opinion that the property should not be a
subject of the foreclosure proceeding.
Presumptions that may arise from possession:
1. Ownership. Art. 433: Actual possession with bona fide claim of
ownership is presumed ownership.
2. Good Faith. GF is always presumed. This presumption continues
to be so until the contrary is proved. There is continuity of
presumption of good faith.
3. Presumption of just title. A person who is believed to be the
owner by the community has the legal presumption that he
possesses it with just title and he is not required to show proof of
ownership or to show support of his claim of ownership.
4. Possession of movables. If you posses a real property, the law
presumes that all the accessories therein are also under your
possession.
5. Non-interruption of possession. When a person is in possession
of a property now and he loses it tomorrow but recovers it the ff.
day, the law presumes that he possesses the same continuously
without any interruption.
6. Possession during intervening period. You are in possession of a
real property now. You have been in possession of the same
property 10 years ago. But there is no proof of possession during
the intervening period. The law still presumes that you are in
possession between or during the intervening period.
ARTICLE 531: Possession is acquired by the material occupation of a
thing or the exercise if a right or by the fact that it is a subject to the
action of our will, or by the proper acts and legal formalities
established for acquiring such right.
HOW IS POSSESSION ACQUIRED?
1. By the material occupation (detention) of a thing or the exercise
of a right (quasi-possession). This includes constitutom
possessorium or traditio brevi manu).
2. By the fact that it is subject to the action of our will. This
includes tradition longa manu (by mere agreement) or
tradition simbolico. Hence, it does not require actual physical
detention or seizure.
3. By constructive possession or proper acts and legal formalities
MODES OF POSSESSION
1) MATERIAL OCCUPATION. Holding, apprehension, arrest or occupancy.
The word occupation is used in its ordinary sense which means the
holding of a thing which necessarily is physical. When it is in the
exercise of a right, this is quasi-possession.
 A. Forms of delivery or tradition that can give rise to
possession through material occupation:
o Actual or real
o Constructive delivery.
B. Kinds of constructive delivery that may give rise to
possession through material occupation:
o Symbolic deliver or by execution or delivery
of the public documents;
o Longa manu meaning pointing by long hand.
C. To be valid there must be concurrence of the ff:
o The one delivering must have the actual
physical control of the thing;
o The thing pointed to must be visible from
where the parties are found;
o brevi manu
Example:
1) Possession by the lessee who acquires ownership of the
leased premises. So his actual possession constitutes
constructive delivery.
2) When the owner who is in actual possession of the house,
sells the house but still has possession of the same, this time
as a lessee as when he enters into a contract of lease with the
buyer of the house. Now he is still in possession of the house
but not as the owner thereof but as the lessee.
2) BY ACTION OF OUR WILL
Under this mode there is no actual or physical detention
or seizure but the agreement between the parties constitutes the
fact of possession.
3) PROPER ACTS AND FORMALITIES PRESCRIBED BY LAW
Under this mode, these are certain documents which
ordinarily gives rise to possession because of legal fiction. The
moment the document takes effect, automatically the person in
whose favor the document is executed is deemed to have acquired
possession of that property
For example: donation, succession
EQUATORIAL REALTY vs. MAYFAIR THEATER
GR No. 133879. November 21, 2001
Although there was a constructive delivery of the
property through a Deed of Sale in favor of
EQUATORIAL, it was not consummated since MAYFAIR,
which was in control and actual possession of it,
impugned the sale in court. Hence, no back rentals in
favor of EQUATORIAL may be granted.
FACTS
CARMELO & BAUERMANN, INC. owned a registered parcel of
land at Claro M. Recto Avenue, Manila on which 2 2-storey
buildings were constructed.
CARMELO entered into 2 Contracts of Lease with petitioner
MAYFAIR THEATER INC. One was entered into in 1967 for a period
of 20 years. MAYFAIR used the leased premises as a movie house
known as Maxim theater. The second was entered into in 1969 for
another 20 years. The rented premises became the site for the
Marimar Theater. Both Contracts had a provision therein, granting
MAYFAIR a right of first refusal to purchase the subject properties.
However in 1978, within the 20-year-lease term, the subject
properties were sold by CARMELO to petitioner EQUATORIAL
REALTY DEVELOPMENT, INC. for P11,300,000 without first being
offered to MAYFAIR. As a result then, MAYFAIR filed a complaint in
court, praying that the Deed of Absolute Sale in favor of
EQUATORIAL be annulled and as to CARMELO, he demanded
specific performance plus damages.
The trial court did not grant the petition of MAYFAIR. On
appeal, the Court of Appeals completely reversed and set aside the
judgment of the lower court. It ordered that the Deed of Sale be
rescinded and ordered CARMELO to allow MAYFAIR to purchase the
property.
However, Carmelo could no longer be located. Thus, following the
order of execution of the trial court, MAYFAIR deposited with the clerk of
court a quo its payment to CARMELO in the sum of P11,300,000. The lower
court issued a Deed of Reconveyance in favor of CARMELO and a Deed of Sale
in favor of MAYFAIR. A title over the land was subsequently issued to
MAYFAIR.
In 1997, EQUATORIAL filed an action for the collection of a sum of
money against MAYFAIR. It claimed that MAYFAIR should pay rentals or
reasonable compensation for its use of the subject premises after its lease
contracts had expired. It alleged that the Lease Contract covering the
premises occupied by Maxim Theater expired in 1987 while the Lease
Contract covering the premises occupied by Miramar Theater lapsed in 1989.
Representing itself as the owner of the subject premises by reason of the
Deed of Sale issued by CARMELO in his favor, he was entitled to the rentals
arising from MAYFAIR’s occupation thereof.
The trial court dismissed the case and so as to the motion for
reconsideration. It debunked the claim of EQUATORIAL for unpaid back
rentals, holding that the rescission of the 1978 Deed of Absolute Sale in the
mother case did not confer on EQUATORIAL any vested or residual
proprietary rights, even in expectancy.
Hence, this present recourse.
ISSUES
1. Whether or not EQUATORIAL had acquired ownership over the
property by virtue of the sale made by CARMELO in the former’s favor.
2. Whether or not EQUATORIAL was entitled for back rentals from the
time MAYFAIR’s Lease Contracts expired.
RULING
(1) NO, it had not. It was because even there was proper a act and legal
formalities in the form of a Deed of Absolute Sale in its favor, there was
however, no delivery of the property as it was then still MAYFAIR which was
in actual possession of it.
By a contract of sale, “one of the contracting parties obligates himself
to transfer ownership of and to deliver a determinate thing and the other to
pay therefor a price certain in money or its equivalent.”
The Deed of Sale as a form of constructive delivery did not transfer
ownership
Ownership of the thing sold is a real right, which is not transferred by
the contract alone but the buyer acquires only upon delivery of the thing to.
Delivery may be actual or constructive.
Although it could be argued that there was constructive delivery of the
property in favor of EQUATORIAL because of the Deed of Sale, the same was
not considered.
However, it has been held that the execution of a contract of sale as a
form of constructive delivery is a legal fiction. It is only a prima facie
presumption of delivery. It holds true only when there is no impediment that
may prevent the passing of the property from the hands of the vendor into
those of the vendee. When there is such impediment, “fiction yields to reality
- the delivery has not been effected.”
From the peculiar facts of this case, it is clear that EQUATORIAL never
took actual control and possession of the property sold, in view of MAYFAIR’s
timely objection to the sale and the continued actual possession of the
property. The objection took the form of a court action impugning the sale
which, as we know, was rescinded by a judgment rendered by this Court in
the mother case.
Hence, MAYFAIR’s opposition to the transfer of the property by way of
sale to EQUATORIAL was a legally sufficient impediment that effectively
prevented the passing of the property into the latter’s hands. Because
MAYFAIR was in actual possession of the property, the sale could not be
considered consummated.
The fact that MAYFAIR paid rentals to EQUATORIAL during the litigation
should not be interpreted to mean either actual delivery or ipso facto
recognition of EQUATORIAL’s title.
EQUATORIAL, as alleged buyer of the disputed properties and as alleged
successor-in-interest of CARMELO’s rights as lessor - submitted two
ejectment suits against MAYFAIR. The first in 1987 and the second in 1990.
MAYFAIR eventually won them both. However, to be able to maintain
physical possession of the premises while awaiting the outcome of the
mother case, it had no choice but to pay the rentals.
The rental payments made by MAYFAIR should not be construed as a
recognition of EQUATORIAL as the new owner. They were made
merely to avoid imminent eviction.
(2) NO, it was not entitled to back rentals not because it did not
acquire ownership over the property in the absence of delivery.
The sale to EQUATORIAL may have been valid from inception,
but it was judicially rescinded before it could be consummated.
EQUATORIAL never acquired ownership, not because the sale was
void, as erroneously claimed by the trial court, but because the sale
was not consummated by a legally effective delivery of the
property sold.
Furthermore, assuming for the sake of argument that there
was valid delivery, EQUATORIAL was not entitled to any benefits
from the “rescinded” Deed of Absolute Sale because of its bad faith.
It admitted that its lawyers had studied the Contract of Lease
between CARMELO and MAYFAIR prior to the sale and knew of the
stipulations therein. It only then proved that the sale was entered
into with knowledge that it would be in violation of the rights of
and to the prejudice of MAYFAIR.
EQUATORIAL’s claim of reasonable compensation for
respondent’s use and occupation of the subject property from the
time the lease expired could not be countenanced. If it suffered
any loss, it must bear it in silence, since it had wrought that loss
upon itself. Otherwise, bad faith would be rewarded instead of
punished.
WONG vs. CARPIO
GR No. 50264. October 21, 1991
Although a person purchased the land and was in actual
possession thereof, the sale could not have been
consummated by reason of a prior deed of sale over the
property in favor of another. Said prior sale was an
impediment for the consummation of the sale since
delivery of the property was impossible.
FACTS
In 1972, Private respondent MANUEL MERCADO acquired a
land in Colongan, Sta. Maria, Davao del Sur from William Giger by
virtue of a Deed of Sale with right to repurchase for a consideration
of P3,500. In 1973, William Giger again asked an additional amount
of P2,500 from MERCADO and he acceded so. But he required
William Giger to sign a new deed of Pacto de Retro Sale, which the
latter executed.
Since he purchased the land in 1972, MERCADO began paying
the real estate taxes of the land for William Giger and began
harvesting only the coconut fruits thereon. He went periodically to
the land to make copra but he never placed any person on the land
in litigation to watch it. Neither did he reside on the land as he was
a businessman and storekeeper by occupation and resides at Lower
Sta. Maria, Davao del Sur while the land in litigation is at Colongan,
Sta. Maria. Neither did he put any sign or hut to show that he was
in actual possession.
As early as 1976, MERCADO knew that IGNACIO WONG’s
laborers were on his land and that they had a hut there but he did
not do anything to stop them. Instead MERCADO was happy that
there were people and a hut on the land therein.
A month after, WONG went to the land to find out if there
were other people residing there or claiming it besides the owner
and he found none. So WONG bought the parcel of land in litigation
from William Giger and his wife Cecilia Valenzuela. Thenon, WONG
declared the land in suit for taxation purposes in his name.
However, when he tried to register the pacto de retro sale with the
Register of Deeds, it could not be registered.
Nevertheless, WONG placed laborers on the land in suit, built
a small farm house after made some clearings and fenced the
boundaries. He also placed signboards.
In 1976, MERCADO again went to the land in suit to make
copras. When he learned that WONG occupied the land, he had the
latter entered in the police blotter. Despite of this, 2 months after,
WONG ordered the hooking of the coconuts from the land in
litigation and nobody disturbed him.
Later, MERCADO filed a case for forcible entry against WONG. During
the pendency of said complaint, spouses William Giger and Cecilia Valenzuela
filed a case for reformation of instrument with the court against MERCADO.
The MTC held that WONG had prior, actual and continuous physical
possession of the disputed property and dismissed both the complaint and
the counter-claim by MERCADO. On appeal with the CFI, it reversed said
decision. It held that it was MERCADO who had taken possession of the
property earlier in point of time and WONG was an intruder and must return,
the possession of the land in question to the former. WONG was also
ordered to pay rental after from the time his possession was contested until
he the time he would return the property to MERCADO.
Hence, this appeal. WONG contended that MERCADO had not
established prior possession because the latter’s periodic visit to the lot to
gather coconuts may had been consented to and allowed or tolerated by the
owner thereof. MERCADO could also had been a hired laborer who entered
the premises every harvest season to comply with the contract of labor with
the true owner of the property.
ISSUE
Whether or not WONG acquired the property by reason of the pacto de retro
sale executed by the original owner William Giger in his
favor.
RULING
NO. Although there was a proper act and formality in the form of a
pacto de retro sale executed by the original owner William Giger in WONG’s
favor, there was nevertheless delivery. The execution of a sale thru a public
instrument shall be equivalent to the delivery of the thing, unless there is
stipulation to the contrary. If, however, notwithstanding the execution of the
instrument, the purchaser cannot have the enjoyment and material tenancy
of the thing and make use of it herself, because such tenancy and enjoyment
are opposed by another, then delivery has not been effected.
Possession by William Giger was passed to MERCADO by virtue of the
first sale a retro, thus, the sale a retro in favor of WONG failed to pass the
possession of the property because there was an impediment – the
possession exercised by MERCADO. Possession as a fact cannot be
recognized at the same time in two different personalities except in the cases
of co-possession. Under Art. 538, should a question arise regarding the fact
of possession, the present possessor shall be preferred; if there are two
possessions, the one longer in possession, if the dates of possession are the
same, the one who presents a title; and if these conditions are equal, the
thing shall be placed in judicial deposit pending determination of its
possession or ownership through proper proceedings.
In fact, it was MERCADO who had material possession of the land and
had subjected it in his will he went there occasionally to make copra. There
was also a proper act and formality in his favor, that was the Pacto de Retro
Sale executed by William Giger in his favor.
Wong’s entry to the property was characterized by force, intimidation,
threat, strategy, or stealth
The court also held that WONG’s entry into the property was and
excluding MERCADO as the lawful possessor therefrom necessarily implies
the exertion of force over the property, and this is all that is necessary to
prove forcible entry. Under the rule, entering upon the premises by strategy
or stealth is equally as obnoxious as entering by force. The foundation of the
action is really the forcible exclusion of the original possessor by a person
who has entered without right. The words "by force, intimidation, threat,
strategy, or stealth" include every situation or condition under which one
person can wrongfully enter upon real property and exclude another who has
had prior possession therefrom.
The award of rentals was affirmed
It also sustained the award of rentals since WONG’s possession in good
faith ceases from the moment defects in the title were made known to the
him, by extraneous evidence or by suit for recovery of the property by the
true owner. Such interruption took place upon service of summons.
SOMODIO vs. CA
GR No. 82680. August 15, 1994
Possession in the eyes of the law does not mean that a man has to
have his feet on every square meter of ground before it can be
said that he is in possession. It is sufficient that the possesor was
 able to subject the property to the action of his will i.e.
planting trees and constructing a house though was
unfinished.
FACTS
In 1974, Jose Ortigas conveyed to Wilfredo Mabugat the
possession of a residential lot situated in Raja Muda, General
Santos City. Half of the purchase price thereof, was contributed by
petitioner NICANOR SOMODIO. Later, Mabugat caused the
partition of the property into 2 portions. SOMODIO took the
western part, which was known as Lot 6328-X. After the partition,
SOMODIO took possession of his portion and planted thereon ipil-
ipil trees, coconut trees and other fruit-bearing trees.
In 1976, SOMODIO began construction of a house thereon.
However, this structure was left unfinished as his employment took
him to Kidapawan, North Cotabato. He then asked his uncle to take
care of the structure. Then on he would visit the property every 3
months or on weekends when he had time.
In 1977, SOMODIO allowed respondent FELOMINO AYCO to
transfer his hut in Lot 6328-X. 6 years later, SOMODIO demanded
that AYCO vacate the premises but such demand proved futile.
Hence, he filed an action for unlawful detainer with damages
against respondent AYCO.
In 1983, respondent EBENECER PURISIMA also entered the
land and constructed a house thereon. 4 days later, SOMODIO also
filed a complaint for forcible entry against PURISIMA.
PURISIMA contended that the lot was a portion of the land
subject of his application for miscellaneous sales patent with the
Bureau of Lands. He added that his father, who was a geodetic
engineer, surveyed the parcel of land for the Small Farmers
Fishpond Association, Inc. Such survey plan was approved by the
Director of Lands in 1960. AYCO, on the other hand, did not present
any evidence but merely anchored his right to possess the property
on the evidence of PURISIMA.
The trial court held that SOMODIO was the actual possessor
of Lot No. 6328-X. It declared that PURISIMA built his house
"almost on the spot where SOMODIO's unfinished house" stood
"thru stealth and strategy," not knowing that the house was built
on Lot No. 6328X and not on Lot No. 6328-Y. It held that being that
PURISIMA was a frequent visitor in Rajah Muda and had sometimes
stayed with Mrs. Maturan in Judge Purisima's house on the
adjoining lots, he could not have remained unaware of the
possession of SOMODIO. The court further stated that Lot No.
6328-X was not included in the survey pan made by PURISIMA’s
father. Hence, the court ordered PURISIMA and AYCO to remove
their repective houses and to deliver the land to SOMODIO.
The RTC affirmed such decision in toto. However, on appeal
with the CA, it reversed the said decision. It held that SOMODIO
had not "clearly and conclusively established physical, prior
possession over Lot No. 6328-X." A motion for reconsideration with
the same court was also denied.
Hence, this appeal by SOMODIO.
ISSUE
Whether or not SOMODIO had enjoyed priority of possession
over Lot No. 6328-X.
RULING
YES. Under Art. 531, SOMODIO had possessed the property
through material occupation and having subjected it under his will.
SOMODIO took possession of the property sometime in 1974
when he planted the property to coconut trees, ipil-ipil trees and
fruit trees. In 1976, he started the construction of a building on the
property. It was immaterial that the building was unfinished and
that he left for Kidapawan for employment reasons and visited the
property only intermittently. Possession in the eyes of the law does
not mean that a man has to have his feet on every square meter of
ground before it can be said that he is in possession. It was
sufficient that SOMODIO was able to subject the property to the
action of his will.
PURISIMA on the other hand, did not present proof that
between 1958, when his father allegedly took possession of the
land, and 1983, when said he himself entered the land, his father
ever exercised whatever right of possession he should have over the
property. Under these circumstances, priority in time should be the pivotal
cog in resolving the issue of possession. Besides, it was found by two ocular
inspections, that what PURISIMA was claiming was possession over Lot No.
6328-Y. SOMODIO’s land on the other hand, was adjacent to it, Lot No. 6328-
X. It was also in SOMODIO’s area where PURISIMA and AYCO built their
houses.
The SC also held that although SOMODIO’s prior possession over the
property was proven, it was however, not synonymous with his right of
ownership over the same. The resolution of the issue of possession is far
from the resolution of the issue of ownership. Forcible entry is merely a
quieting process and never determines the actual title to an estate.
DELA ROSA vs. CARLOS
GR No. 147549. October 23, 2003
The law does not require one in possession of a house to reside in
the house to maintain his possession. It is enough that the
possessor subjects it to the action of his will i.e.,renovating and
furnishing the house and, constructing a perimeter fence on the
property.
FACTS
The Petitioner SPOUSES JESUS AND LUCILA DELA ROSA were the
owners of a house and lot in Bulacan. They acquired it from Leonardo Carlos
under an Absolute Deed of Sale in 1966. Thereafter, they had it registered.
Afterwards, they renovated the house, furnished and occupied the same
since 1966. They also had a perimeter fence built to separate the Property
from the municipal road and to protect it from trespassers. They had been
paying taxes on the land (1966-1997) and the house (1966-1993).
Since the SPOUSES DELA ROSA worked and their children studied in
Manila, they resided in the Property only during weekends and holidays.
However, they padlock the house on the property while they were away and
instructed relatives who lived nearby to watch over the property.
In 1997, the SPOUSES DELA ROSA discovered that through stealth and
without their knowledge and consent, respondent SANTIAGO CARLOS had
built a house of strong materials on a vacant lot of the Property. They also
found that respondent TEOFILA PACHECO had also been transferring
furniture to the house and sleeping there. They then demanded, through
their counsel, that CARLOS and PACHECO demolish the house, remove their
furniture and vacate the premises within 10 days. However, Santiago
CARLOS and PACHECO did not heed the SPOUSES DELA ROSA’s demand.
So, in 1998, the SPOUSES DELA ROSA filed a complaint for forcible
entry against CARLOS and PACHECO.
CARLOS and PACHECO on the other hand, alleged that they were the
surviving heirs of the Spouses Leonardo and Benita Carlos. Hence, together
with LUCILA DELA ROSA, they were co-owners of the property. They also
contended that the SPOUSES DELA ROSA obtained the Deed of Sale through
fraud and undue influence and that their mother did not consent to the sale
of the property which they claimed as conjugal. They maintained that the
SPOUSES DELA ROSA were never in possession of the Property because the
latter only went there to visit their parents, and not as owners. Insisting that
they had been occupying the Property since birth, SANTIAGO claimed that he
constructed the house on the Property in the concept of a co-owner.
The MTC declared that the SPOUSES DELA ROSA were entitled to the
possession of the property. It ordered CARLOS and PACHECO to vacate the
premises. The same decision was affirmed by the RTC. The CA on the other
hand, reversed it. Hence, this petition for review by the SPOUSES DELA ROSA.
ISSUE
Whether or not the SPOUSES DELA ROSA had acquired prior possession
over the property.
RULING
YES. They had prior possession.
In a forcible entry case, the principal issue for resolution is mere
physical or material possession (possession de facto) and not juridical
possession (possession de jure) nor ownership of the property involved. In
the present case, both parties claimed prior possession of the Property.
The Spouses Dela Rosa claimed that they had been in possession of
the Property since 1966 upon the execution of the Deed of Sale by Leonardo
in their favor. On the other hand, CARLOS and PACHECO claimed that they
had been continuously occupying the Property since birth and the
SPOUSES DELA ROSA were never in possession of the Property.
While admitting that CARLOS and PACHECO used to reside in
the Property since birth, the SPOUSES DELA ROSA contended that
the two moved out when they married in 1961 and 1959,
respectively.
The SPOUSES DELA ROSA had material possession over the
property.
Their act of visiting the Property on weekends and holidays
was evidence of actual or physical possession. Even if the SPOUSES
DELA ROSA were already residing in Manila, it did not mean that
they could not continue possessing the Bulacan property. The fact
of their residence in Manila, by itself, did not result in loss of
possession of the Bulacan property. The law does not require one
in possession of a house to reside in the house to maintain his
possession.
The SPOUSES DELA ROSA also subjected the property to the action
of their will.
They renovated the house, furnished the same and
constructed a perimeter fence around the Property. Possession in
the eyes of the law does not mean that a man has to have his feet
on every square meter of ground before it can be said that he is in
possession. It is sufficient that the SPOUSES DELA ROSA were able
to subject the property to the action of their will.
The SPOUSES DELA ROSA had a proper act and legal formality in
their favor
They had an Absolute Deed of Sale dated 1966 in their favor
when they acquired the Bulacan property from Leonardo Carlos.
The question of the validity of the Deed of Sale could not be
questioned in a forcible entry case.
CARLOS and PACHECO claimed that the Deed of Sale was
executed without the consent of Benita, Leonardo’s spouse. They
also added that the Deed of Sale was executed through fraud and
undue influence. However, these issues could not properly be
addressed in the present action for forcible entry. These issues
could only be resolved in a separate action specifically for the
annulment of the Deed of Sale.
ARTICLE 532: Possession may be acquired by the same person who
is to enjoy it, by his legal representative, by his agent, or by any
person without any power whatever; but in the last case, the
possession shall not be considered as acquired until the person in
whose name the act of possession was executed has ratified the
same, without prejudice to the juridical consequences of
negotiorum gestio in a proper case.
6. Who may acquire possession? One who is in full possession of
his civil capacity can acquire full possession over a thing or
right to any of the three ways of acquiring possession:
1) the person who is to enjoy it;
2) legal representative or an agent of the person
3) any person without any power whatever
(negotiorum gestio)
1) REQUISITES:
a) for personal acquisition
i) intent to possess
ii) capacity to possess
iii) object must be capable of being possessed
b) thru an authorized person
i) intent to possess for principal
ii) authority or capacity to possess for another
iii) principal has intent and capacity to possess
c) thru an unauthorized person (as in negotiorum gestio)
i) intent to possess for another
ii) capacity of principal to possess
iii) ratification by principal.
7. The possession although cured only by the express or implied
ratification should be regarded as having Retroactive.
8. The possession in negotiorum gestio, under Art. 532, is
reckoned from the time of the ratification of the owner of the
thing. There is possession from the time the principal ratifies
the acts of the unauthorized agent.
9. May minors and incapacitated persons acquire possession? Minors
and incapacitated persons may acquire possession in those matters
where they have the capacity to act like the physical seizure of a res
nullius or on donation of movable property where the object or subject
matter of the donation is simultaneously delivered to the minor
children.
ARTICLE 533: The possession of hereditary property is deemed
transmitted to the heir without interruption and from the moment
of death of the decedent, in case the inheritance is accepted.
One who validly renounces an inheritance is deemed
never to have possessed the same.
 Time of Acquisition of Possession by the Heir:
a. If the heir accepts – from the moment of death since
there is no interruption. The possession of the
deceased should be added to the possession of the
heir.
b. if heir refuses or incapacitated to inherit – he is
deemed Never to have possessed.
ARTICLE 534: One who succeeds by hereditary title shall not suffer
the consequences of the wrongful possession of the decedent, if it is
not shown that he was aware of the flaws affecting it; but the
effects of possession in good faith shall not benefit him except from
the date of death of the decedent.
 Reason for Art 534: Accdg to the SC in the case of Escritor Jr. vs.
Iya (155 s 577), the reason for Art. 534 is that bad faith, which is a
state of mind is personal to the person who acted so, hence it is
intransmissible. Its effect must be suffered only by the person
who has acted as such. The heirs should not be saddled with the
consequences of the wrongful possession of the predecessor.
 If the father or decedent was in BF, it does not necessarily mean
that the son was also in BF. The son is still presumed to be in GF.
Since the father was in BF, the consequences of the GF of the son
should be counted only from the date of decedent’s death.
 If the father was in Good Faith, the article is inapplicable. In such
case, the possession of the father in GF is added to the possession
of the son in GF.
ARTICLE 535: Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of their legal
representatives in order to exercise the rights which from the
possession arise in their favor.
ARTICLE 536: In no case may possession may be acquired thru force
or intimidation as long as there is a possessor who objects thereto.
He who believes that he has an action or a right to deprive another
of the holding of a thing, must invoke the aid of the competent
court if the holder should refuse to deliver the thing.
 Circumstances that cannot give rise to possession:
a. Force, violence and intimidation. The law shall not
consider you as the possessor of the thing if you
acquire it through force, violence and intimidation;
b. Mere tolerance of the owner.
c. Clandestine acts or secret possession cannot give rise
to possession, for possession must be open. Possession
which is not public.
How to Recover Possession:
The SC said possession cannot be acquired through force or intimidation
even by the owner of the property. If by force or intimidation he succeeded
in evicting the possessor of the property, he can be compelled by the court to
restore the possession which he has wrested from the possessor. Thus an
action for forcible entry or illegal detainer may be filed even against the
owner who took possession of the property from the holder without due
process
ARTICLE 537: Acts merely tolerated, and those executed
clandestinely and without the knowledge of the possessor of a
thing, or by violence, do not affect possession.

1. Force, intimidation, violence or acts merely tolerated do
not affect possession.
2. Violence - exertion of force, either actual or threatened.
3. If the property was not forcible taken, can it give rise to
possession through force or violence? The SC in the case
of…
Bishop vs. Municipality of San Jose (27 Phil 571),
…said there is force and violence in the acquisition even if the
property was not forcibly taken away from the owner if the
intruder occupied it during the absence of the owner and
commits acts which repel the return of the owner.
BENEFITS OF A POSSESSOR:
a) He has the benefit of prescription whether GF/BF. So in
other words, of he is in possession of the whole
property in the concept of an owner for 10 or 3- yrs., he
may acquire the entire property thru prescription.
b) He is entitled to the fruits, if he is the possessor in GF. If
violence will be used, the possession previously enjoyed
shall not be affected. Meaning also whoever entered
this part shall not acquire the property thru prescription.
ARTICLE 538: Possession as a fact cannot be recognized at the same
time in 2 different personalities except in the cases of co-possession.
Should a question arise regarding the fact of possession, the
present possessor shall be preferred; if there are 2 possessors, the
one longer on possession; if the dates of possession are the same,
the one who presents a title, and if all these conditions are equal,
the thing shall be placed in judicial deposit pending determination f
its possession or ownership thru proper proceedings.
GR: Possession as a fact cannot be recognized at the same time in 2
different personalities
Exceptions:
1. when there are co-possessors;
2. when the possession are of two different degrees. One
is possessing in a concept of an owner and the other is
possessing in the concept of a holder.
RULES under Art 538, Preferred Possessor:
1. In cases for recovery of possession, it is the present
possessor;
2. If there are 2 possessors, the one longer in possession;
3. If both began to possess at the same time, then the one
who possesses the title.
4. If both present a title, the court will determine
As to MOVABLE PROPERTY…
 preference is given to the person who first possessed
the thing in good faith
EDCA PUBLISHING VS SANTOS [184 scra 614]
Fx: On 10/5/91, a person identifying himself as a professor of De La
Salle University.(dela Cruz) ordered several books from EDCA. EDCA
prepared the corresponding receipts and delivered the books as
ordered for which dela Cruz issued a check in payment of the same.
After several days, he ordered again for several books. EDCA
became suspicious because the check was not yet cleared and here
comes dela Cruz ordering another set of books, so it inquired from
DLSU of the existence of Dela Cruz and found out that he was a
bogus person. So EDCA went to the police and set a trap to arrest
Dela Cruz. Upon inquiry of the first set of books delivered to Dela
Cruz, EDCA found out that the same were already sold to a certain
Santos. With the aid of police, EDCA went to Santos and
confiscated the books. EDCA contended that Santos did not acquire
the books in good faith and did not show receipt to prove that
Santos bought them from Dela Cruz.
Issue: w/n Santos was in good faith
Held: SC said that the contention of EDCA is unacceptable, precisely
the first sentence of Art. 559 provides that the possession of
movable property acquired in good faith is equivalent to title (rule of
reinvindicability), therefore there is no need of showing further proof. Santos
acquired the books in good faith, she accepted the ownership of the books
from the EDCA invoice saying that it was sold to DC, who said he was selling
them for a discounted price as he was in financial need. Surely Santos did not
need to go beyond that invoice to satisfy herself that the books sold by DC
belonged to him, which she did. Although the title of Dela Cruz was being
presumed under Art. 559, these being movable properties, Santos
nevertheless demanded proof before deciding to buy them.
By contrast, EDCA was less than cautious, in fact too trusting in dealing with
the impostor. It would certainly be unfair now to make Santos bear the
prejudice sustained by EDCA as a result of its own negligence. We cannot
agree that justice is transferring such loss to the Santoses who had acted in
good faith and with proper care when they brought the goods from DC.
IMMOVABLE
 Preference is given to the first who registered his right in good
faith with the registrar of deeds. In the absence of registration,
then to the person who first possessed it in good faith. If there is
no possession, then to the person who presents the oldest title in
good faith.
MARCELO V CA 305S800
Where the SC said acquisitive prescription is a mode of acquiring ownership
by a processor through the requisite lapse of time. In order to ripen into
ownership, possession must be in the concept of an owner. It must be public,
peaceful and uninterrupted.
CEQUENA vs. BOLANTE
GR No. 137944. April 6, 2000
If there are 2 possessors of the land, the preferred possessor shall
be the one longer in possession. Possession here shall include not
only the actual possession made by the present possessor but also
the possession made by her predecessor-in-interest.
FACTS
Prior to 1954, a land located in the Province of Rizal, having an area of
1,728 sq. m. was originally declared for taxation purposes in the name of
Sinforoso Mendoza, father of respondent HONORATA MENDOZA BOLANTE.
In 1930, Sinforoso Mendoza died.
Margarito Mendoza was the brother of Sinforosao Mendoza and also
the father of petitioners FERNANDA MENDOZA CEQUENA and RUPERTA
MENDOZA, LIRIO. After Sinforosa Mendoza died, Margarito Mendoza took
possession of the land and cultivated it with his son Miguel. On the basis of
an affidavit, Margarito Mendoza caused the cancellation of the tax
declaration in the name of Sinforoso Mendoza on the contested lot and
subsequently declared it in his name. Later, Margarito Mendoza also passed
away.
The occupant of the land however, since 1985, was BOLANTE, the only
daughter of Sinforoso Mendoza. Earlier, in 1979, BOLANTE and Miguel
Mendoza, another brother of CEQUENA and LIRIO, during the cadastral
survey had a dispute on the ownership of the land.
The trial court declared that the land, which was covered by a tax
declaration in favor of Margarito Mendoza belonged to him and his heirs,
petitioners CEQUENA and LIRIO. BOLANTE was also ordered to vacate the
premises.
The Court of Appeals however, reversed the trial court decision and
ruled that the affidavit allegedly signed by the BOLANTE and her mother had
not been sufficiently established. The notary public, nor any witness and
expert testimony ever attested to the genuineness of the questioned
signatures. It also ruled BOLANTE’s mother, never having attended school,
could neither read nor write and that BOLANTE was referred to as “Leonor”
in the affidavit, which was a name she had never been called. Hence, it
concluded that although tax declarations were presented by CEQUENA and
LIRIO, it could not overthrow BOLANTE’s proof of ownership of the disputed
parcel by actual, physical, exclusive and continuous possession since 1985,
which indeed gave her a better title under Article 538 of the Civil Code.
 Hence, this appeal. CEQUENA and LIRIO contended that
BOLANTE could not have been the preferred possessor since she
came into possession through force and violence, contrary to
Article 536 of the Civil Code.
ISSUE
Whether or not BOLANTE was a preferred possessor under
Article 538 of the Civil Code because she was in notorious, actual,
exclusive and continuous possession of the land since 1985.
RULING
YES she was the preferred possessor under Article 538.
The court held that despite their dispossession in 1985 by
BOLANTE, CEQUENA and LIRIO did not lose legal possession
because possession cannot be acquired through force or violence.
To all intents and purposes, a possessor, even if physically ousted,
is still deemed the legal possessor. Indeed, anyone who can prove
prior possession, regardless of its character, may recover such
possession.
However, despite so, the possession by CEQUENA and LIRIO
did not prevail over that of the BOLANTE. Possession by the former
before 1985 was not exclusive, as the latter also acquired it before
1985. The records show that the CEQUENA and LIRIO's father and
brother, as well as the BOLANTE and her mother were
simultaneously in adverse possession of the land.
Before 1985, the subject land was occupied and cultivated by
the Sinforoso, BOLANTE's father. When Sinforoso died in 1930,
MARGARITO took possession of the land and cultivated it with his
son Miguel. At the same time, BOLANTE and her mother continued
residing on the lot.
When BOLANTE came of age in 1948, she paid realty taxes for
the years 1932-1948. Margarito declared the lot for taxation in his
name in 1953 and paid its realty taxes beginning 1952. When he
died, Miguel continued cultivating the land. As found by the CA,
BOLANTE and her mother were living on the land, which was being
tilled by Miguel until 1985 when he was physically ousted by the
respondent.
Based on Article 538 of the Civil Code, BOLANTE was the
preferred possessor because, benefiting from her father's tax
declaration of the subject lot since 1926, she has been in
possession thereof for a longer period. On the other hand,
petitioners' father acquired joint possession only in 1952.
EFFECTS OF POSSESSION
ARTICLE 539: Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be protected
in or restored to said possession by the means established by the
laws and the Rules of Court.
A possessor deprived of his possession through forcible
entry may within 10 days from the filling of the complainant
present a motion to secure from the competent court, in the action
for forcible entry, a write of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion
within 30 days from the filing thereof.
EVERY POSSESSOR HAS A RIGHT:
1) To be respected in his possession. Even if he is not the
owner he has the right to be respected;
2) Should he be disturbed therein, he shall be protected in
or restored to said possession.
3) To be restored to said possession by the means
established by the laws and the rules of court.
RATIONALE: (Yuson vs. Guzman 42 Phil. 22)
a. In order to prevent positive against public order;
b. In order to avoid disturbance in the community;
c. To prevent deprivation of property without due
process of law'
d. To prevent a person from taking the law in his own
hands.
REMEDIES in case of disturbance and/or dispossession?
 Action for forcible entry, unlawful detainer, accion publiciana and
accion reinvindicatoria.
ARTICLE 540: Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring dominion.
REQUISITES FOR ACQUIRING DOMINION OR OWNERSHIP:
1. Possession must be actual or constructive.
2. It must be in the concept of an owner, in concepto de dueno.
 The following cannot acquire ownership thru prescription because
they are merely possessors in the concept of a holder:
1. lessees
2. trustee
3. husband and wife if the property is conjugal
4. agents
5. attorneys
6. co-owners
 The following are instances of conclusive presumptions:
1) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it:
2) The tenant is not permitted to deny the title of his
landlord at the time of the commencement of the
relation of landlord and tenant between them.(3a)
CEQUENA vs. BOLANTE
GR No. 137944. April 6, 2000
Possession acquired and enjoyed in the concept of a holder despite
32 years, could not ripen into ownership.
FACTS
- See facts on this previous page -
ISSUE
Whether or not CEQUENA and LIRIO acquired possession of the land in
the concept of an owner so as to acquire it by prescription.
RULING
NO. It was BOLANTE who had acquired ownership over the land by
prescription, prior to the possession of CEQUENA and LIRIO.
Under Art. 540 of the Civil Code, "Only the possession acquired and
enjoyed in the concept of owner can serve as a title for acquiring dominion."
Although CEQUENA and LIRIO farmed the property for 32 years, they
could not have acquired ownership over it through prescription. It is settled
that ownership cannot be acquired by mere occupation. Unless coupled with
the element of hostility toward the true owner, occupation and use, however
long, will not confer title by prescription or adverse possession. Moreover,
CEQUENA and LIRIO could not claim that their possession was public,
peaceful and uninterrupted. Although their father and brother arguably
acquired ownership through extraordinary prescription because of their
adverse possession for 32 years (1953-1985), this supposed ownership could
extend to the entire disputed lot, but must be limited to the portion that
they actually farmed.
It was BOLANTE who had acquired the land by prescription. Being the
sole heir of her father, BOLANTE showed through his tax receipt that she had
been in possession of the land for more than 10 years since 1932. When her
father died in 1930, she continued to reside there with her mother. When
she got married, she and her husband engaged in kaingin inside the disputed
lot for their livelihood.
BOLANTE's possession was not disturbed until 1953 when CEQUENA
and LIRIO’S father claimed the land. But by then, her possession, which was
in the concept of owner -- public, peaceful, and uninterrupted -- had already
ripened into ownership. Furthermore she herself, after her father's demise,
declared and paid realty taxes for the disputed land. Tax receipts and
declarations of ownership for taxation, when coupled with proof of actual
possession of the property, can be the basis of a claim for
ownership through prescription.
SPOUSES RECTO VS. REPUBLIC
GR No. 160421. October 4, 2004
Before one can register his title over a parcel of land, the
applicant must show that – (a) he, by himself or through
his predecessors-in-interest, has been in open,
continuous, exclusive and notorious possession and
occupation of the subject land under a bona fide claim
of ownership since June 12, 1945 or earlier; and (b) the
land subject of the application is alienable and
disposable land of the public domain.
FACTS
In 1997, petitioner SPOUSES PHILIP and ESTER RECTO filed
an application for registration of title over a 23,209 square meter
lot, known as Lot 806 of the Sto. Tomas Cadastre in Batangas under
Presidential Decree (P.D.) No. 1529, otherwise known as the
Property Registration Decree. They also prayed in the alternative
that their petition for registration be granted pursuant to
Commonwealth Act (C.A.) No. 141, or the Public Land Act.
The SPOUSES RECTO alleged that they purchased said
property in 1996 from sisters Rosita Medrana Guevarra and Maria
Medrana Torres for the amount of P6,943,534.40. The two, in turn,
inherited the lot from their deceased parents, Vicente and Eufemia
Medrana. Maria, born in 1917, declared that since 1945, her father
was already the owner of Lot 806. She became aware of her
father’s possession of the subject lot in the concept of owner in
1930 when she was 13 years of age. The possession of the subject
lot by the Medrana family prior to 1945 was corroborated by
Rosita, who testified that in 1935 when she was 13 years of age,
she first came to know that her father was the owner of Lot 806.
The sisters added that during the lifetime of Vicente, he planted
rice and corn on the lot with the help of their tenant. After his
demise, they continued to plant the same crops through hired
farmers.
There being no opposition to the petition from any private
individual, an Order of General Default was issued by the trial
court.
In 1998, the court a quo rendered a decision granting the
petition for registration.
The Republic, represented by the Solicitor General appealed
to the Court of Appeals contending that petitioners failed to – (1)
offer in evidence the original tracing cloth plan of the land; (2)
prove possession of the lot for the period required by law; and (3)
overthrow the presumption that subject property forms part of the
public domain.[19]
In 2003, the Court of Appeals reversed the decision of the
trial court on the sole ground of failure to offer in evidence the
original tracing cloth plan of the land. Hence, this appeal.
ISSUE
Whether or not the Medranas possessed the property in the
concept of an owner so as to have acquired title over it.
RULING
YES. The Medranas possessed the property in the concept of
an owner so as to have acquired title over it. Hence, their
successor-in-interest, the petitioners SPOUSES RECTO had been
benefited by such possession.
Before one can register his title over a parcel of land, the
applicant must show that – (a) he, by himself or through his
predecessors-in-interest, has been in open, continuous, exclusive
and notorious possession and occupation of the subject land under
a bona fide claim of ownership since June 12, 1945 or earlier; and
(b) the land subject of the application is alienable and disposable
land of the public domain.
In the instant case, Rosita and Maria the predecessors-in-
interest of the SPOUSES RECTO, categorically testified that they,
and prior to them their father, had been cultivating and possessing
Lot 806 in the concept of owners. Maria, having been born on in 1917, and
Rosita in 1922, were 13 years of age when they became aware of their
family’s possession of Lot 806 in 1930 and 1935, respectively. At 13, they
were undoubtedly capable and competent to perceive their father’s
possession of Lot 806 in the concept of owner.
The fact that the earliest Tax Declaration of the subject lot was for the
year 1948 will not militate against petitioners. Note that said 1948 Tax
Declaration cancels a previous Tax Declaration, thus substantiating
petitioners’ possession of Lot 806 through their predecessor-in-interest even
prior to said date.
So also, there is no doubt that Lot 806 is an alienable land of the public
domain having been released and certified as such on in 1925. As further
certified by the Community Environment and Natural Resources Office of the
DENR, the entire area of Lot 806 is an agricultural land; within an alienable
and disposable zone; not within a reservation area nor within a forest zone;
and does not encroach upon an established watershed, riverbed, and
riverbank protection. The SPOUSES RECTO were thus able to successfully
meet the requisite for original registration of title, to wit: open, continuous,
exclusive and notorious possession and occupation of an alienable and
disposable land under a bona fide claim of ownership since June 12, 1945 or
earlier.
HEIRS OF GAMOS vs. HEIRS OF FRANDO
GR No. 149117. December 16, 2004
The mere application for a patent, coupled with the fact of
exclusive, open, continuous and notorious possession for the
required period is sufficient to vest in the applicant the grant
applied for.
FACTS
Juliana Frando, predecessor-in-interest of respondents HEIRS OF
FRANDO, was in possession of a parcel of agricultural land located in Sta.
Magdalena, Sorsogon. Since 1925, Frando had planted several trees and
other plants thereon, including coconuts, pili, bananas and cacao.
In 1946, the property was traversed by a national road that effectively
divided it into 2 portions, Lot Nos. 7 and 1855.
In 1952, Frando filed for an Insular Government Property Sales
Application for the 2nd lot, Lot No. 1855, which was the subject of a
controversy later on. Upon inspection of the area by a representative of the
Bureau of Lands, it was found to be inside an agricultural zone, free from
private claims and conflicts. In 1955, during the bid of the property, which
was apprised at P240, Frando was the only bidder. Frando then deposited
P24, which represented 10% of the appraised value. The land was fully paid a
year later in 1956, when Frando paid the balance of P216. On the same day,
an Order/Award was made in Frando’s favor.
One of Frando’s two children, Paciencia Gallanosa-Fuellas, chose to
settle in Manila. The other child, Salvacion Gallanosa who was married to
Abdon Gimpes (Gimpes spouses), however, continued possession of the
property. Sometime in 1940, The Gimpes spouses constructed their house
on the southwestern portion thereof. The couple also helped Frando in the
administration of the land. The Gimpes spouses’ children were also born on
the property, where they also grew up. After their parent’s death, they
continued possession of the land; and harvested and received the fruits of
the improvements for themselves and on behalf of their grandmother,
Juliana Frando, even after her death in 1971.
Purportedly unknown to the HEIRS OF FRANDO, in 1958, a cadastral
survey of the Municipality of Sta. Magdalena, Sorsogon, was conducted. Lot
No. 1855 became the subject of a case and as a result, in 1969, a free patent
was awarded to Cerila Gamos. On the basis of the free patent, an OCT was
also issued in her name. It was only in 1981 however that the HEIRS OF
GAMOS took possession of the property through entry, gathered its produce
and built their houses thereon.
In 1988, the HEIRS OF FRANDO filed with the RTC a Complaint against
Cerila Gamos and the director of the Bureau of Lands. They challenged the
validity of the free patent and OCT issued to Cerila Gamos. They alleged that
the Bureau of Lands had no authority to award the patent covering an area it
had earlier awarded to Juliana Frando.
Cerila Gamos on the other hand, together with the HEIRS OF GAMOS
alleged that they had been in actual and open possession of the land as early
as 1952. They also averred that the free patent title issued in their favor,
which was the basis of the subsequent issuance of the OCT was valid and
lawful.
The Bureau of Lands however, rebutted that Juliana Frando
failed to pay the balance price of P216. Thus, she had not perfected
the title over the land that the patent was not issued in her favor.
In 1998, the RTC rendered judgment in favor of the HEIRS OF
FRANDO. The HEIRS OF GAMOS then, appealed to the CA, which
also affirmed the RTC decision.
ISSUE
Whether or not the HEIRS OF FRANDO possessed the property
in the concept of an owner.
RULING
YES. The HEIRS OF FRANDO had possessed the property in the
concept of an owner.
Juliana Frando had acquired the land through purchase from the
government
The allegation of the Bureau of Lands that Juliana Frando
Clearly failed to pay the P216 balance of the sale price was
disproved by the Order/Award issued in her favor in 1956, which
stated that she had completed payment of the land.
Given the full payment of the purchase price as well as the
compliance with all the requirements for the grant of a sales
patent, the Bureau had no reason to deny the issuance of such
patent to Juliana Frando. Her compliance with all the requirements
effectively vested in her and her successors-in-interest an equitable
title to the property applied for.
Even without a patent, a perfected homestead is a property
right in the fullest sense, unaffected by the fact that the paramount
title to the land is still in the Government. Thus, when the
cadastral survey was subsequently conducted in Sta. Magdalena in
1958, the disputed property -- already held in private ownership --
was no longer part of the public domain. The director of lands had
no more authority to grant to a third person a patent covering the
same tract that had already passed to private ownership. Thus, the
issuance of the free patent to Cerila Gamos, insofar as it
encroached the portion already granted to Frando, had no legal
basis at all.
Notwithstanding the denial of the sales patent in favor of Juliana
Frando, she had nevertheless acquired the property by prescription
The denial of the sales patent notwithstanding, Juliana Frando is
deemed to have acquired equitable title to the property through
open, continuous, exclusive and notorious possession of
the property, which was a disposable land of the public domain.
In 1906, a Declaration of Real Property covering the property
was issued to Basilio Frando, father of Juliana Frando. Witness
accounts of long time residents of the adjoining properties
confirmed her possession for a period not later than 1925; and her
introduction thereon of various trees and other plants, including
bananas, cacao, pili and coconuts.
They also attested to the continued possession of the
property by Frando’s daughter, Salvacion Gimpes; and
subsequently by her children, herein private respondents HEIRS OF
FRANDO. Aside from showing the Order/Award, the children
bolstered their claim by introducing in evidence several Tax
Declarations, sketch plans, survey returns and the reports of the
court-appointed commissioner.
While asserting possession of the property as early as 1952,
petitioners had not presented any document or witness to prove
their bare claim. Moreover, Ambrosio Guatno -- one of herein
petitioners -- testified that he had entered the property upon the
permission of Ricardo Galag, an heir of Gamos; later, he admitted
that its true owner was Juliana Frando.
Clearly, the mere application for a patent, coupled with the
fact of exclusive, open, continuous and notorious possession for
the required period is sufficient to vest in the applicant the grant
applied for. In sum, the application by Juliana Frando for a sales
patent, coupled with her open, exclusive, uninterrupted and
notorious possession of the land applied for is, for all purposes,
equivalent to a patent already perfected and granted.
The subsequent entry of petitioners and their occupation of
the property in question was in bad faith, given the prior possession thereof
by private respondents.
ARTICLE 541: A possessor in the concept of owner has in his favor
the legal presumption that he possessed with a just title and he
cannot be obliged to show or prove it.
 Possession is presumed ownership. This is a disputable
presumption.
 What is the reason for the presumption? Because every possessor
is presumed to be in good fatih. More importantly, because of the
inconvenience of carrying proof of ownership.
 KINDS OF TITLES:
a) True and valid title – title which by itself is sufficient to transfer
ownership without the necessity of letting the prescriptive period
elapse.
b) Colourable title – that title where, although there was a mode of
transferring ownership, still something is wrong, because the
grantor is NOT the owner; this is the kind of title that the
possessor in the concept of an owner has. He can acquire
property thru acquisitive prescription title.
c) Putative title – that title where although a person believes himself
to be the owner, he nonetheless is not, because there was no
mode of acquiring ownership.
IN POSSESSION (ART. IN PRESCRIPTION
541)
a. just title is a. the person possessing in the concept of
presumed if he is an owner must prove that he has just title;
possessing in the b. just title here is not sufficient to transfer
concept of an owner; ownership right there and then because
b. just title is he still has to go thru the period. The
sufficient to transfer period has to lapse before one can acquire
ownership if nobody ownership on prescription.
questions.
CEQUENA vs. BOLANTE
GR No. 137944. April 6, 2000
The prohibition against burdening a possessor in the concept of an
owner to show or prove his possession with just title only does not
apply if he is also claiming ownership over the land through
acquisistive prescription.
FACTS
- See facts on previous page -
BOLANTE argued that she was legally presumed to possess the subject
land with a just title since she possessed it in the concept of owner. Under
Article 541 of the Code, she could not be obliged to show or prove such title.
ISSUE
Whether of not BOLANTE could be obliged to show or prove such title.
RULING
YES. She should be obliged to show or prove such title because she was
also claiming to have acquired the property through prescription. The
prohibition against burdening a possessor in the concept of an owner to
show or prove his possession with just title only applies when there is an
adverse claim over the property. In the present case however, both parties
claimed possession in the concept of an owner. After CEQUENA and LIRIO
had proved their claim over the property, it was up to BOLANTE to controvert
their contentions through adducing evidence in her favor.
TITONG vs. CA
GR No. 137944. April 6, 2000
Titong did not acquire just title over the property because he was
in bad faith. His acts of converting the boundary line (Bugsayon
River) into a ricefield and thereafter claiming ownership thereof
 were acts constituting deprivation of the rights of others
and therefore "tantamount to bad faith."
FACTS
In 1960, petitioner MARIO TITONG sold a 5.5-hectare parcel
of land to Conception Verano vda. de Cabug. He was able to
purchase the said land though in 1962. After 4 days, he sold it to
Pablo Espinosa, who had it declared under his name for taxation
purposes. When Espinosa died, it became a part of the estate of
Segundia Liao, Espinosa’s late wife. In 1981, her heirs sold the
property to private respondent VICTORICO LAURIO for P5,000.
Thereafter, a tax declaration was issued in the name of LAURIO. In
all these conveyances, the area and boundaries of the property
remained exactly the same.
Later, TITONG filed an action for quieting of title against
private respondents VICTORICO and ANGELES LAURIO. He alleged
that he was the owner of a 3.2800-hectare parcel of unregistered,
which he declared for taxation purposes in his name. He claimed
that on 3 separate occasions in 1983, the LAURIOs, with their hired
laborers, forcibly entered a portion of the land containing an area
of approximately 2 hectares, and began plowing the same under
pretext of ownership.
TITONG identified Espinosa as his adjoining owner. He
asserted that no controversy had sprouted between them for 20
years until the latter sold said lot to VICTORICO LAURIO. The
boundary between the land sold to Espinosa and what remained of
TITONG's property was the old Bugsayon river. When TITONG
employed Bienvenido Lerit as his tenant in 1962, he instructed Lerit
to change the course of the old river and direct the flow of water to
the lowland at the southern portion of TITONG's property, thus
converting the old river into a riceland.
The LAURIOs denied this allegation and averred that the
disputed property formed part of the 5.5-hectare agricultural land
which they had purchased in 1981 from their predecessor-in-
interest, Pablo Espinosa.
It was proved at the proceedings in the court a quo that two
(2) surveys were made of the disputed property. The first survey
was made for TITONG, while the second was the relocation survey
ordered by the lower court. As anticipated, certain discrepancies
between the two surveys surfaced. Thus, contrary to TITONG's
allegation in his complaint that he was the owner of only 3.2800
hectares, he was actually claiming 5.9789 hectares. On the other
hand, the lot pertaining to Espinosa, was left with only an area of
4.1841 hectares instead of the 5.5 hectares sold by TITONG to him.
LAURIO testified that TITONG was one of the four heirs of his
mother, Leonida Zaragoza. In the Extrajudicial Settlement with Sale
of Estate of the deceased Leonida Zaragoza, the heirs adjudicated
unto themselves the 3.6-hectare property of the deceased.
However, instead of reflecting only .9000 hectare as his rightful
share in the extrajudicial settlement TITONG's share was bloated to
2.4 hectares. It was therefore appeared to LAURIO that TITONG
encroached upon his property and declared it a part of his
inheritance. LAURIO LAURIO accordingly denied that TITONG had
diverted the course of the Bugsayon River after he had repurchased
the land from Conception Verano vda. de Cabug because the land
was immediately sold to Espinosa shortly thereafter.
In short, TITONG, in bad faith, surreptitiously, maliciously and
fraudulently had the land in question included in the survey of his
land which extends to the south only as far as the Bugsayon River
which is the visible and natural and common boundary between
the properties. Moreover, during the hearing of the case, TITONG
proved that it was actually a boundary dispute by evidence showing
what he considered as the boundary of his property which LAURIO
perceived as actually encroaching on their property.
The lower court rendered a decision in favor of LAURIO,
declaring him as the true and absolute owner of the litigated
property and ordering TITONG to respect private LAURIOs' title and
ownership over the property and to pay attorney's fees, litigation
expenses, costs and moral damages. The same was affirmed by the
CA. Hence, this appeal.
ISSUE
Whether of not TITONG possessed the property with a just title in his
favor.
RULING
NO. He had no just title in his favor.
Ordinary acquisitive prescription of things requires possession in good
faith and with just title for the time fixed by law. Hence, a prescriptive title to
real estate is not acquired by mere possession thereof under claim of
ownership for a period of ten years unless such possession was acquired with
color of title and good faith. The good faith of the possessor consists in the
reasonable belief that the person from whom he received the thing was the
owner thereof, and could transmit his ownership. For purposes of
prescription, there is just title when the adverse claimant came into
possession of the property through one of the modes recognized by law for
the acquisition of ownership or other real rights but the grantor was not the
owner or could not transmit any right.
TITONGs had not satisfactorily met the requirements of good faith and
just title. As aptly observed by the trial court, the plaintiff's admitted acts of
converting the boundary line (Bugsayon River) into a ricefield and thereafter
claiming ownership thereof were acts constituting deprivation of the rights of
others and therefore "tantamount to bad faith." To allow TITONG to benefit
from his own wrong would run counter to the maxim no man can be allowed
to found a claim upon his own wrongdoing.
MARCELO vs. CA
GR No. 131803. April 14, 1999
There is, upon the other hand, just title when the adverse claimant
comes into possession of the property through any of the modes
recognized by law for the acquisition of ownership or other real
rights, but that the grantor is neither the owner nor in a position
to transmit the right. The possessor only had to prove colorable
title.
FACTS
A parcel of land located in Sta. Lucia, Angat, Bulacan was originally
owned by spouses Jose Marcelo and Sotera Paulino and they had been in
continuous possession of said property since 1939. Following the death of
Jose Marcelo in 1965, his heirs, petitioners SOTERA PAULINO MARCELO ET
AL. discovered in 1967 that a portion of said property had been encroached
by respondent FERNANDO CRUZ.
Earlier in 1960, CRUZ purchased a 6,000-sq. m. property from Engracia
dela Cruz and Vicente Marta and Florentino all surnamed Sarmiento,
pursuant to a ‘Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang
Patulayan’ . As soon as the said property was sold to Fernando Cruz, the
adjoining property described and classified as ‘parang’ with an area of 7,856
sq. m. was declared by said CRUZ in his name which circumstance, increased
his landholding to 13,856 sq. m. In 1968, he sold this 13,856 sq. m.-property
to respondent SERVANDO FLORES pursuant to a deed of sale (Kasulatan ng
Bilihan). The said sale included the encroached portion of 7,540 sq.m. of
MARCELO ET AL.’s property.
In 1968, MARCELO ET AL. attempted to cultivate the disputed portion
but were barred from doing so by respondent FLORES who claimed that the
area was part of the land he bought from co-respondent CRUZ. Hence, in
1982, MAR CELO ET AL filed an action for the recovery of a portion of
unregistered land.
CRUZ and FLORES, on the other hand, contended that the portion
sought to be recovered by MARCELO ET AL. was part of the land which CRUZ
acquired in 1960 from the Sarmientos. They also averred that the land sold to
CRUZ contained 6,000 sq. m. of ‘palayero’ or riceland and 7,856 sq. m. of
‘parang’ or pasture land. It was added that in 1967, CRUZ caused the survey
of the property and had it declared for taxation in 1968. It was further
alleged that CRUZ sold the same property to FLORES in 1968.
The trial court found that the issue revolved on the so-called pasture
land or ‘parang’. It concluded that the ‘parang’ belonged to MARCELO ET AL.
and that it was merely encroached upon by CRUZ. It was proven that the tax
declaration of the Sarmientos, from whom CRUZ purchased the property, did
not include the ‘parang’ and it was only began to be declared for taxation
purposes in the name of CRUZ in 1961. On the other hand, the said ‘parang’
was a part and parcel of MARCELO ET AL.’ property to which they had been in
possession thereof prior to World War II. Because of such encroachment, the
landholding of CRUZ of 6,000 sq. m. was increased to 13,856 square meters.
The court then ordered CRUZ and FLORES to return the ownership
and possession of the ‘parang’ to MARCELO ET AL.
On appeal to the CA, the decision of the lower court was
reversed. Hence, this appeal.
ISSUE
Whether of not FLORES had in his favor just title.
RULING
YES. FLORES had just title in his favor because he acquired the
property in good faith. The bad faith of CRU
The “Kasulatan ng Partisyon sa Labas ng Hukuman at Bilihang
Patuluyan.” executed in 1960 by the Sarmientos, pertained not
only to the “palayero” but also to the “parang” as well. Shortly
after the execution of the deed of sale in his favor, CRUZ declared
both parcels, i.e., the palayero and the parang, for taxation
purposes in 1960 in the Office of the Provincial Assessor and
forthwith a new tax declaration was issued in his name for the
entire 13,856 sq. m. property. In turn, respondent CRUZ sold in
1968, the 13,856 square meters of land to respondent Flores under
a “Kasulatan ng Bilihan.” FLORES immediately took possession of
the property to the exclusion of all others and promptly paid the
realty taxes thereon. From that time on, FLORES had been in
possession of the entire area in the concept of an owner and
holding it in that capacity for almost 14 years before petitioners
initiated their complaint in 1982.
Acquisitive prescription is a mode of acquiring ownership by
a possessor through the requisite lapse of time. In order to ripen
into ownership, possession must be in the concept of an owner,
public peaceful and uninterrupted. Possession, to constitute the
foundation of a prescriptive right, must be en concepto de dueno,
or, to use the common law equivalent of the term, that possession
should be adverse; if not, such possessory acts, no matter how
long, do not start the running of the period of prescription.
Ordinary acquisitive prescription demands, as aforesaid, that
the possession be “in good faith and with just title.” The good faith
of the possessor consists in the reasonable belief that the person
from whom the thing is received has been the owner thereof and
could thereby transmit that ownership. There is, upon the other
hand, just title when the adverse claimant comes into possession of
the property through any of the modes recognized by law for the
acquisition of ownership or other real rights, but that the grantor is
neither the owner nor in a position to transmit the right.
In the instant case, FLORES took possession of the
controverted portion in good faith and with just title. This is so
because the said portion of 7,540 sq. m. was an integral part of that
bigger tract of land which he bought from CRUZ under public
document. As explicitly mentioned in the document of sale
executed in 1968, the disputed portion referred to as “parang” was
included in the sale to FLORES. Parenthetically, at the time of the
sale, the whole area consisting of the riceland and pasture land was
already covered by a tax declaration in the name of CRUZ and
further surveyed in his favor. Hence, FLORES’ possession of the
entire parcel which included the portion sought to be recovered by
MARCELO ET AL. was not only in the concept of an owner but also
public, peaceful and uninterrupted. While it is true that the
possession of the entire area by his predecessor-in-interest CRUZ
may not have been peaceful as it was indeed characterized with
violence which resulted in the death of Jose Marcelo, this could not
be said of FLORES’ possession of the property, in respect of which
no evidence to the contrary appears on record.
ARTICLE 542: The possession of real property presumes that of the
movables therein, so long as it is not shown or proved that they
should be excluded.
ARTICLE 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.
ARTICLE 544: A possessor in good faith is entitled to the fruits
received before the possession is legally interrupted.
Naturally and industrial fruits are considered received
form the time they are gathered or severed.
Civil fruits are deemed to accrue daily and belong to the
possessor in good faith on that proportion.
 The possessor in good faith (PGF) is entitled to the fruits received
before the possession is legally interrupted.
 Right of PBF with respect to the gathered fruits:
 Entitled to payment for production, gathering and preservation
expenses of the crops. (If the fruits have not been gathered, he
loses everything with respect to the fruits. But he can get the
payment of expenses for the preservation of the land.)
ARTICLE 545: If at the time the good faith ceases, there should be
any natural or industrial fruits, the possessor shall have a right to a
part of the expenses of cultivation, and to a part of the net harvest,
both in proportion to the time of the possession.
The charges shall be divided on the same basis by the
two possessors.
The owner of the ting may, should he so desire, give the
possessor in good faith the right to finis the cultivation and
gathering if the growing fruits, as an indemnity for his part of the
expenses of cultivation and the net proceeds; the possessor in good
faith who for any reason whatever should refuse to accept this
concession, shall loss the right to be indemnified in any other
manner.
 The situation is, X possesses in GF the land of B. The possession of
X has been legally interrupted, and therefore his possession in GF
ceases. What are the rights of X?
1. right to part of the expenses of cultivation;
2. right to a part of the net harvest (both in proportion to the
time of the possession, 1st par. of 545.
POSSESSOR
GOOD FAITH BAD FAITH
Owns them (Art. 544) - Return the value of fruits which
owner could have received (Art.
549)
- Liable for damages EXCEPT
articles 443 and 546
Pro-rating of net harvest - No rights at all (Art. 449)
(Art. 545) - Liable for damages (Art. 452)
 Pro-rating, how determined: The possessor was already in
possession for two months before his possession in good faith was
legally interrupted through the serving of judicial summons. The
crops are pending and it would take about 4 months before it
could be harvested. So before interruption, possession is in good
faith, after interruption, possession is in bad faith.
Judicial summons
2 months 4 months
= 2:4 pro-rata
good faith bad faith
1. Necessary Expenses – are those without which the thing would
physically deteriorate or be lost, expenses for the preservation of
the thing. They do not increase the thing’s value; they merely
prevent the thing from being useless.
Rights of a Possessor (in the concept of owner) as to the necessary expenses
a. If in good faith – entitled to:
1. refund
2. retain premises until paid
b. If in bad faith – entitled ONLY to a refund (no right of retention, as penalty)
2. Useful Expenses – they are those that:
 i. add value to the property
ii. or increase the object’s
productivity
iii. or useful for the satisfaction of
spiritual and religious yearnings or
give rise to all kinds of fruits
 Rights of a Possessor (in the concept of owner) as to the
Useful Expenses:
 If in good faith…
1) Right to REIMBURSEMENT (of either the
amount spent or the increase in value;
2) Right of RETENTION (till paid)
 While waiting to be reimbursed, he is not obliged to pay
rental to the owner. The right of retention is an absolute
right, thus, he can occupy or possess the premises for
free until he is reimbursed. But during his retention of
the premises, he introduces improvements; he has no
right of removal if the improvements are introduced
during the retention period. During the time of
retention, he is already in bad faith. PBF under useful
expenses has no right whatsoever.
3) Right of REMOVAL (provided no substantial
damage or injury is caused to the principal,
reducing its value. Unless the winner (lawful
owner or possessor) exercises the option in
Art 547, 1
 If in bad faith…
1. Not entitled to any right regarding the useful expenses or
reimbursements for expenses incurred;
2. he may REMOVE the objects (repairs on building)
provided the things suffer NO INJURY thereby;
3. If the lawful possessor does not prefer to retain them by
paying the value they may have at the time he enters
into possession.
PADA- KILARIO V CA
They are PBF and the kind of expenses they incurred here is useful.
Improvements are considered as useful expenses. So what are they
entitled to? They are entitled to nothing.
CHUA V CA
Under Art 547 on useful expenses only apply to PGF, and since
Chua, who is a lessee, he is not entitled to the benefits of 546 and
547. There is no provision which grants a lessee a right of retention
until reimbursed.
3. Luxurious Expenses, Art 548 – are those which add
value to the thing only for certain determinate persons
in view of their particular whims. They are neither
essential for preservation nor useful to everybody in
general
ARTICLE 546:
PADA-KILARIO vs. CA
G.R. No. 134329. Jan. 19, 2000.
If a possessor were in possession of the property without
paying any rental as they only relied on the liberality
and tolerance of the landowner are not possessors nor
builders in good faith because they know that their
occupation of the premises may be terminated any time.
Hence, they are not entitled to reimbursement of useful
expenses.
FACTS
Jacinto Pada owned a parcel of land of residential and coconut
land in Leyte denominated as Cadastral Lot No. 5581. During his
lifetime, his half-brother, Feliciano Pada, obtained permission from
him to build a house on the northern portion of Cadastral Lot No. 5581. When
Feliciano died, his son, Pastor, continued living in said house. Petitioner
Verona Pada-Kilario, one of Pastor's children, had been living in that house
since 1960.
Later, Jacinto Pada died intestate. His 6 children, 1 personally and others
through their children, entered into an extra-judicial partition of his estate,
which included Cadastral Lot No. 5881. One of the sons of Jacinto Pada was
Marciano Pada. The latter’s daughter, Maria Pada, sold the co-ownership
right of his father to respondent SILVERIO PADA, who was also a first cousin.
Thereafter, SILVERIO demanded that spouses VERONA PADA-KILARIO and
RICARDO KILARIO vacate the northern portion of Cadastral Lot No. 5581 so
his family can utilize the said area. Unable to settle for an amicable
settlement, SILVERIO instituted a complaint for ejectment with prayer for
damages against spouses KILARIO.
Later, heirs of Amador Pada, also a son of Jacinto Pada, executed a Deed
of Donation, transferring to petitioner Verona Pada-Kilario, their respective
shares as co-owners of Cadastral Lot No. 5581. Hence, the SPOUSES KILARIO
averred that the northern portion of Cadastral Lot No. 5581 had already been
donated to them by the heirs of Amador Pada. Hence, they were virtually
converted as standing co-owners of the land under controversy and became
the undivided owners of the whole estate. Their possession then in the
northern portion was being lawful. They also contended that they had been
occupying the subject property since 1960 without ever paying any rental.
The RTC ordered the SPOUSES KILARIO to vacate the premises in issue
and return peaceful possession to SILVERIO being the lawful possessor in
concept of owner. When the SPOUSES KILARIO appealed with the CA, the
same was denied. Hence, this petition
ISSUE
Whether or not the SPOUSES KILARIO were entitled to full
reimbursement of useful improvements and retention of the premises until
reimbursement is made.
RULING
NO, they were not because they were builders in good faith.
Considering that SPOUSES KILARIO were in possession of the subject
property by sheer tolerance of its owners, they knew that their occupation of
the premises may be terminated any time. Persons who occupy the land of
another at the latter's tolerance or permission, without any contract between
them, is necessarily bound by an implied promise that they will vacate the
same upon demand, failing in which a summary action for ejectment is the
proper remedy against them. Thus, they could be considered possessors nor
builders in good faith.
It is well-settled that both Article 448 and Article 546 of the New Civil
Code which allow full reimbursement of useful improvements and retention
of the premises until reimbursement is made, apply only to a possessor in
good faith, i.e., one who builds on land with the belief that he is the owner
thereof. Verily, persons whose occupation of a realty is by sheer tolerance of
its owners are not possessors in good faith.
Neither did the donation by some of the heirs, convert SPOUSES KILARIO
into builders in good faith for at the time the improvements were built on the
premises, such promise was not yet fulfilled, i.e., it was a mere expectancy of
ownership that may or may not be realized. More importantly, even as that
promise was fulfilled, the donation was void for the donors were not the
owners of Cadastral Lot No. 5581. As such, petitioners could not be said to be
entitled to the value of the improvements that they built on the said lot.
CHUA vs. CA
GR No. 109840. January 21, 1999
Reimbursement applies only to a possessor in good faith, i.e., one
who builds on a land in the belief that he is the owner thereof. This
right does not apply to a mere lessee, otherwise, it would always
be in his power to "improve" his landlord out of the latter's
property.
FACTS
Petitioners JOSE L. CHUA and CO SIO ENG were lessees of a commercial
unit in Baclaran, Parañaque, Metro Manila, which was owned by respondent
RAMON MARRA. The lease was for a period of 5 years, from 1985 to 1989.
The contract expressly provided for the renewal of the lease at the option of
CHUA and ENG in accordance with the terms of agreement and
conditions set by the MARRA.
Prior to the expiration of the lease, the parties discussed the
possibility of renewing it. They exchanged proposal and
counterproposal, but they failed to reach agreement. The dispute
was referred to the barangay captain for conciliation but still no
settlement was reached by the parties.
Hence, in 1990, MARRA filed a complaint for unlawful
detainer against CHUA and ENG with the MTC. The court extended
the lease for another 2 years. CHUA and ENG were also ordered to
pay MARRA back rentals until they vacate the premises.
The RTC however, modified said decision. It ruled that after
the expiration of the 5-year lease period, CHUA and ENG’s
continued stay were already illegal. It also held that the period
fixed by the MTC was not proper as the power of the courts to fix
the period of lease is limited only to cases where the period has not
been fixed by the parties themselves. CHUA and ENG were also
ordered then, to vacate the premises and pay back rentals until
they vacate the same.
The CA affirmed the RC decision. The appellate court found
petitioners guilty of bad faith in refusing to leave the premises.
Hence, this petition for review on certiorari. UY and ENG
contended that they acted in good faith under the belief that they
were entitled to an extension of the lease because they had made
repairs and improvements on the premises.
ISSUE
Whether or not the useful improvements made by UY and
ENG on the leased premises entitled them to reimbursement from
MARRA.
RULING
NO. They should not be entitled to reimbursement.
The fact that, UY and ENG allegedly made repairs on the
premises in question is not a reason for them to retain the
possession of the premises.
There is no provision of law which grants the lessee a right of
retention over the leased premises on that ground.
Art. 448 of the Civil Code, in relation to Art. 546, which
provides for full reimbursement of useful improvements and
retention of the premises until reimbursement is made, applies
only to a possessor in good faith, i.e., one who builds on a land in
the belief that he is the owner thereof. In a number of cases, the
Court has held that this right does not apply to a mere lessee, like
the petitioners, otherwise, it would always be in his power to
"improve" his landlord out of the latter's property.
Art. 1678 merely grants to such a lessee making in good faith
useful improvements the right to be reimbursed one-half of the
value of the improvements upon the termination of the lease or in
the alternative, to remove the impovements if the lessor refuses to
make reimbursement.
ARTICLE 547:
ARTICLE 548:
ARTICLE 549: The possessor in bad faith shall reimburse the fruits
received and those which the legitimate possessor should have
received, and shall have a right only to the expenses mentioned in
par. 1 of article 546 and in article 443. the expenses incurred in
improvements for pure luxury or mere pleasure shall not be
refunded to the possessor in bad faith; but he may remove the
objects for which such expenses have been incurred, provided that
the thing suffers no injury thereby, and that the lawful possessor
does not prefer to retain them by paying the value they may have
at the time he enters into possession.
ARTICLE 550: The costs of litigation over the property shall be borne
by every possessor.
ARTICLE 551: Improvements caused by Nature or time shall always
inure to the benefit of the person who has succeeded in revering
possession.
ARTICLE 552: A possessor in good faith shall not be liable for the
deterioration or loss of the thing possessed, except in cases in which
it is proved that he has acted with fraudulent intent or negligence,
after the judicial summons.
A possessor in bad faith shall be liable for deterioration
or loss in every case, even if caused by a fortuitous event.
ARTICLE 553: One who recovers possession shall not be obliged to
pay for the improvements which have ceased to exist at the time he
takes possession of the thing.
ARTICLE 554: A present possessor who shows his possession at
some previous time, is presumed to have held possession also
during the intermediate period, in the absence of proof to the
contrary.
ARTICLE 555: A possessor may lose his possession:
1. By the abandonment of the thing;
2. By an assignment made to another either by onerous pr
gratuitous title;
3. By the destruction or total loss of the thing, or because it
goes out of commerce;
4. By the possession of another, subject to the provisions of
Article 537, if the new possession has lasted longer that
one year. But the real right of possession is not the lost
till after the lapse of 10 years.
 Instances when a possessor may lose possession:
1) By the abandonment of the thing
o Abandonment is the voluntary renunciation of a thing
or right.
o The abandonment must be true abandonment in the
sense that both possession de facto and possession de
jure are lost.
o This is the abandonment that converts the thing into
res nullius, meaning ownership of which may be
ordinarily acquired through occupation. But this does
not apply to land. Because under Art. 714, which
provides that the ownership of a piece of land cannot
be acquired by occupation. So, ordinarily it refers to
movables.
REQUISITES:
1. That the abandoner must have been a possessor in the concept of
an owner;
2. The capacity to renounce; there must be physical relinquishment
of the thing;
3. No expectancy of recovery or no intent to return; and
4. The abandoner must have knowledge of the loss of his possession
or the thing. (US vs. Ray 8 Phil 500)
Effect of temporary ignorance:
4. There is no abandonment of movables even if there is temporary
ignorance so long as they remain under the control of the
possessor.
Effect of tolerance
5. There is no abandonment if the owner merely tolerated another's
possession, nor if that possessor acquired it through stealth, or
effected the same through force or intimidation
1. Assignment, either by onerous (in case of sale) or gratuitous title
(in case of donation).
- Assignment here is the complete transmission of ownership rights
to another person onerously or gratuitously.
2. By the destruction or total loss of the thing, or because it goes out
of commerce.
 - A thing is lost when it perishes, or goes out of
commerce, or disappears in such a way that its
existence is unknown and there is no recovery at all.
3. Accdg to Mr. Paras, the possession of movables is not
deemed lost as long as they remain under the control of
the possessor even though for the time being he does
not know their whereabouts.
- Possession that is lost for one year is possession de
facto, but not legal right of possession because it is lost
after the lapse of 10 years. Possession as a fact, if you
lose it for more than 1 year, then you may file a case for
recovery for possession.
- By the possession of another, subject to the provisions
of Article 537, if the new possession has lasted longer
that one year. But the real right of possession is not the
lost till after the lapse of 10 years.
U.S. vs. REY
G.R. No. 3326. September 7, 1907
Property can not be considered abandoned under the
law if the possessor did not know that the thing was lost
until the spes recuperand (hope of recovery)i is gone and
the animus revertendi (intention to return) is finally
given up.
FACTS
On September 19, 1905, the steamer Cantabria sailed from
the port of Manila, destined for the pueblo of Tabaco, Albay. The
ship had on board, as a part of her cargo, 3 boxes containing silver
and paper money amounting to P25,000. This money was shipped
by the firms of Urrutia & Co. (P20,000) and Muñoz & Co. (P5,000)
After the Cantabria remained in quarantine at the quarantine
station of Mariveles, she continued the journey September 24. On
September 26, said ship was totally wrecked off the small Island of
Mababuy and all its officers and passengers were drowned, the
cargo including the money were lost as it sunk with the ship.
On September 28, the defendant LAURENTE REY with several
others, after having discovered the existence and location of the
wrecked steamer Cantabria, took two boxes , which contained
P15,000, one containing P10,000 and the other P5,000. Being that
the sum was packed in boxes, which were reinforced with iron
straps and nails, said boxes were broken by the accused in order to
take possession of the said sum of money. A part of which was
distributed among his companions, the largest portion of which
was retained by REY.
The trial court convicted REY for the crime of robbery. On
appeal, REY alleged that the said property which was sunk with the
wrecked steamer Cantabria, was abandoned property and
therefore, granting that he had taken possession of said property
and appropriated it to his own use, he was not guilty of the crime
of robbery.
ISSUE
Whether or not the boxes containing the money were
abandoned property.
RULING
NO. Said boxes were not abandoned property because of the
absence of knowledge of the possessor that the thing was lost and
there was still intent on the part of the possessor to recover it.
Art. 555 (then Art. 460) provides that one of the ways in which
a possessor may lose possession of a property is through
abandonment of a thing.
There was absence of knowledge of the possessor that the thing
was lost
The sinking of the Cantabria was relayed to the firms only
after more than 6 weeks after the cyclone. Certainly the owner of
property can not be held to have abandoned the same until at least
lie has some knowledge of the loss of its possession or of the loss of
the thing.
There was still intent on the part of the firms to recover the money.
Property can not be considered abandoned under the law and the
possession left vacant for the finder until the spes recuperandi (hope of
recovery) is gone and the animus revertendi (intention to return) is finally
given up.
The theory of abandonment on the part of the owners of the money
stolen was fully refuted by the fact that some weeks after the wreck of the
said ship they sent men to the place of the wreck for the purpose of
recovering the property which belonged to them, which was on board the
ship at the time of her sinking. The mere fact that cargo was sunk with a ship
wrecked at sea by no means deprives the owner of said cargo of his property
therein. The owner certainly still has the right to reclaim such property and
to recover the same if possible. If it should be recovered by others, the real
owner would be entitled to recover its value less the necessary expense of
recovering the same and carrying it ashore by the most approved appliances
for that purpose by others.
YU vs. DE LARA
G.R. No. L-16084 November 30, 1962
Land can never be an abandoned thing, especially registered land.
FACTS
Lot No. 14, block No. 51-C of the Gram Park subdivision, which was a
682.5-meter property, was originally registered in 1916. Subsequently, it was
acquired by the Philippine Realty Corporation.
In 1945, several persons settled on the property and constructed
houses thereon without permission from the Philippine Realty Corporation.
On various dates thereafter, between 1947 and 1952, respondents MAXIMO
DE LARA, JUAN PANLILIO, LUCIA RIVERO, FLORENTINO ROQUE and DOMINGO
SAMSON bought the houses of those settlers and continued in occupancy
thereof without paying any rents to the owner of the land.
Later in 1956, Philippine Realty Corporation sold said property to
petitioner JOHN O. YU, who later obtained a TCT in his name. In 1957, YU
advised DE LARA ET AL. to vacate the property within 30 days. Because of the
latter’s refusal, UY filed a complaint of unlawful detainer.
The lower court ordered DE LARA ET AL. to vacate the premises and to
pay monthly rentals from the time the action was filed until they vacate the
premises.
On appeal, DE LARA ET AL. contended that Philippine Realty Corporation
had lost possession of the property by abandonment, in failing to take action
against them and showing lack of interest in said property since they started
their occupancy.
ISSUE
Whether or not the property was abandoned by Philippine Realty
Corporation.
RULING
NO. It was not abandoned. The circumstances adverted to are
insufficient to constitute abandonment, which requires not only physical
relinquishment of the thing but also a clear intention not to reclaim or
reassume ownership or enjoyment thereof.
Indeed, abandonment which according to converts the thing into res
nullius, ownership of which may be acquired by occupation, can hardly apply
to land, as to which said mode of acquisition is not available, let alone to
registered land, to which "no title in derogation to that of the registered
owner shall be acquired by prescription or adverse possession".
No possessory rights whatsoever can be recognized in favor of
appellants, because they are in fact nothing but squatters, who settled on the
land without any agreement with the owner, paying neither rents to him nor
land taxes to the government, and who impliedly recognized their squatters'
status by purchasing only the houses built by the original settlers. Their
occupancy of the land was at the owner's sufferance, and their acts were
merely tolerated which could not affect the owner's possession.
ARTICLE 556: The possession of movables is not deemed lost as long
as they remain under the control of the possessor, even though for
the time being hew may not know their whereabouts.
  RULE WHEN POSSESSION NOT DEEMED LOST:
(Movable):
1. under the control of another;
2. no idea of the whereabouts
ARTICLE 557: The possession of immovables and of real rights is not
in deemed lost, or transferred for purposes of prescription to the
prejudice of 3rd persons, except in accordance with the provisions of
the Mortgage Law and the Land Registration laws.
ARTICLE 558: Acts relating to possession executed or agreed to by
one who possesses a thing belonging to another as a mere holder to
enjoy or kept it, in any character, do not bind or prejudice the owner
unless he gave said holder express authority to do such acts, or
ratifies them subsequently.
ARTICLE 559: The possession of movable property acquired in good
faith is equivalent to a title. Nevertheless, one who has lost any
movable or has been unlawfully deprived thereof, may recover it
from the person in possession of the same.
If the possessor of a movable lost or which the owner
has been unlawfully deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return without reimbursing
the price paid therefore.
 Art. 559 is known as the rule on irreinvindicability.
 "Aquired in good faith" here means that the possessor is
of the belief that the person from whom he received the
thing was the owner and who could transfer valid title
thereto.
 Requisites for title:
1. That the possession is in good faith;
2. That the owner has voluntarily parted with the
possession of the thing;
3. And the possession is in the concept of an owner.
GR: Possession in good faith in the concept of an owner is
equivalent to title. If the owner wants to get the thing back, he
must REIMBURSE the possessor
Exceptions – NO REIMBURSEMENT by the owner is required when:
a. when the owner has lost the thing;
b. when the owner has been unlawfully deprived of
the thing;
Exception to the exception – the owner shall REIMBURSE the price
paid when the possessor had acquired the thing in good faith at a
public auction.
SUMMARY:
 Owner may recover without reimbursement:
1. From possessor in bad faith;
2. From possessor in good faith (if owner had lost the
property or been unlawfully deprived of it) (the
acquisition being from a private person)
 Owner may recover but should reimburse if possessor
acquired the object in good faith at a public sale or
auction.
 Owner cannot recover even if he offers to reimburse
(WON the owner had lost or been unlawfully deprived):
1) If possessor had acquired it in good faith by purchase
from a merchant’s store or in fairs, or markets in
accordance with the Code of Commerce and special
laws.
2) If owner is by his conduct precluded from denying the
seller’s authority to sell.
3) If possessor had obtained the goods because he was
innocent purchaser for value and holder of a negotiable
document of title to the goods.
4) When acquisitive prescription has set in except if
possessor is a criminal.
DEL ROSARIO vs. LUCENA
G.R. No. 3546. September 13, 1907
A jewelry owner whose jewelries were pawned without her
consent cannot be compelled to reimburse the person to whom it
is pawned in order to acquire possession of the jewelries.
FACTS
Petitioner PIA DEL ROSARIO owned certain jewelries. She delivered said
jewelries to respondent PRAXEDES FLORES for sale on commission for the
term of 2 months, after which, if not sold, they should be returned to her.
Without her consent, the respondent JUAN LUCENA and his wife, PRAXEDES
FLORES pawned them to co-respondent TERESA VERCHES for P500.
DEL ROSARIO filed a complaint against the SPOUSES LUCENA and
VERCHES. The principal object of the complaint was to obtain from the court
a declaration that the jewels were the property of DEL ROSARIO.
The court rendered judgment in favor of the DEL ROSARIO and against
VERCHES for the possession of the jewels. However, DEL ROSARIO could only
possess the jewelries after she pays P500 to VERCHES with interest. Should
the jewels could not be returned, the SPOUSES LUCENA shall jointly and
severally pay DEL ROSARIO P500 and VERCHES P1,555 less P500.
DEL ROSARIO appealed this decision.
ISSUE
Whether or not DEL ROSARIO was under obligation to reimburse
VERCHES in order to repossess the jewelries.
RULING
NO. DEL ROSARIO should not be obliged to reimburse VERCHES.
VERCHES accepted the jewels as a pledge constituted by FLORES in the
name' of DEL ROSARIO, without ascertaining whether the latter had given
the former any order or authority for the pledging of her jewelries. VERCHES
must stand the risk arising from her acceptance of the pledge, even if when
relying upon her judgment she was improperly or falsely informed; and it
would not be just nor logical that the consequences of her deception, due to
her own mistake, or to deceit employed by a stranger, should fall on the
owner of the jewelries who, without having taken any part in the transaction,
became the victim of a crime.
The conflict between the right of the owner of movable property who
has either lost it or been illegally deprived thereof and that of the creditor
who has loaned money thereon and holds it in pledge can not be decided
against the owner, to whom the Civil Code grants a right of action to recover
the property from whoever may be in possession.
The exceptions to Art. 559 (then Art. 464) are therein contained,
namely:
(1) If the possessor of personal property, lost or stolen, has
acquired it at a public sale;
(2) in favor of Montes de Piedad established under authorization
of the Government; and
(3) with regard to things acquired on exchange, or at fairs or
markets, or from a merchant lawfully engaged in similar
business.
The defendant was not within any of the exceptions under which she
could refuse to make restitution of the property without reimbursement of
the amount advanced upon the pledge.
Therefore the decision which provides for such reimbursement before
the return of the jewels is not based on any law whatever. On the contrary, it
is in violation of Art. 559 of the Civil Code.
It was improper to compel DEL ROSARIO to reimburse VERCHES in the
sum P500, which PRAXEDES FLORES obtained through the commission of an
unlawful act, but that it is proper and in accordance with the law to compel
VERCHES to return to the DEL ROSARIO, absolutely and unconditionally, the
jewels in question.
VARELA vs. FINNICK
G.R. No. 3890. January 2, 1908
A pawnshop does not enjoy the privilege established by Art.
559.The owner of a pawnshop, notwithstanding the fact that he
acted in good faith, did not acquire the Jewels at a public sale.
Neither does, a pawnshop enjoy the privilege granted to a Monte
 de Piedad. The owner of the jewels who was deprived of
the same in consequence of a crime is entitled to the
recovery thereof.
FACTS
In 1905, Nicolasa Pascual received from petitioner JOSEFA
VARELA several jewels, some of which were owned by ARELA
herself and some belonged to strangers. The jewelries were
delivered to Pascual to be sold on commission, with the obligation
on the part of the latter to pay to the former the proceeds of the
sale of said jewels, or to return them if unsold.
Pascual, however, pawned the said jewels at various dates
with H. J. Finnick's pawnshop, where the jewels had been pledged.
The jewels were thus misappropriated and the amount of the loan
granted thereon embezzled, to the prejudice of Josefa VARELA.
In 1906, VARELA claimed, in writing, the return of the jewels
from H. J. Finnick's pawnshop. It also filed a case against said
pawnshop and its manager, respondent JOSEPHINE FINNICK.
FINNICK alleged that the jewels pledged at the pawnshop were not
the subject of any other crime committed by Pascual. It was further
alleged that the pawnshop accepted the said jewels in good faith.
Hence, the pawnshop was entitled to their possession.
ISSUE
Whether or not VARELA should be entitled to the possession
of the jewelries.
RULING
YES, she should be entitled to the possession the jewelries.
Nicolasa Pascual was convicted of estafa of the jewels in
question, and as the sentence became final, so much so that she
was now undergoing or term of imprisonment, the balance of the
judgment must be complied with that is, the restitution of the
jewels misappropriated because they are at hand and have not
disappeared. This restitution must be made even if the jewels are
in the possession of a third party, such as a pawnshop, and
notwithstanding the fact that they were lawfully acquired by it, its
right to institute proceedings against whoever may be liable
therefor being reserved as provided by article 120 of the Penal
Code.
The exception contained in paragraph 3 of said article is not
applicable to the present case because a pawnshop does not enjoy
the privilege established by Art. 559 (then Art. 464), of the Civil
Code. The owner of the pawnshop of Finnick Brothers,
notwithstanding the fact that he acted in good faith, did not
acquire the Jewels at a public he sale. Neither does, a pawnshop
enjoy the privilege granted to a Monte de Piedad therefore,
VARELA, who lost said jewels and was deprived of the same in
consequence of a crime is entitled to the recovery thereof from the
pawnshop of Finnnick Brothers, where they were pledged.
The provisions of Art. 559 (then Art. 464) shall be observed
with regard to the rights of the owner to recover the personal
property lost or of which he may have been illegally deprived, and
also with regard to those acquired at an auction, on exchanges, at
fairs or markets, or from a merchant legally established or
customarily engaged in the traffic of similar objects.
In the present case not only has the ownership and the origin
of the jewels misappropriated been unquestionably proven also
that the accused, acting frandulently and in bad faith, disposed of
them and pledged them contrary agreement, with no right of
ownership, and to the prejudice of the injured party, who was
thereby illegally deprived of said jewels. Therefore, in accordance
with the provisions of Art. 559 (then Art. 464), the owner an
absolute right to recover the jewels from the possession of
whosoever holds them in accordance with the judgment entered in
the aforesaid cause for estafa wherein, the accused having been
found guilty the right of Josefa Varela to recover jewels in question
is expressly acknowledged.
ARENAS vs. RAYMUNDO
G.R. No. 5741. March 13, 1911
Because of the fact that Perello was not the legitimate owner of
the jewelry which she pledged to the Raymundo, the contract of
pledge entered into by both is, of course, null and void. hence, the
jewelry so pawned could not serve as security for the payment of
the sum loaned, nor can the latter be collected out of the value of
the said jewelry.
FACTS
In 1908, petitioner ESTANISLAUA ARENAS delivered to Elena de Vega to
sell on commission several pieces of jewelry. De Vega, in turn, delivered it to
Concepcion Perello, likewise to sell on commission. However, Perello, instead
of fulfilling her trust, pledged the jewelry in the pawnshop of defendant
FAUSTO O. RAYMUNDO. Perello appropriated to her own use the money
thereby obtained.
Later, Perello was prosecuted for estafa, convicted, and the judgment
became final. The jewelries however were still under the control and in the
possession of RAYMUNDO. The latter refused to deliver the jewelries to
ARENAS, the owner thereof.
Hence, ARENAS filed an action against RAYMUNDO to recover
possession of said jewelries.
Later, after a writ of seizure was issued for the said jewelry the sheriff
took it out of the RAYMUNDDO's control and held it in his possession during
the 5 days prescribed by law. After 5 days without the delivery of bond by
RAYMUNDO, the sheriff delivered it to the counsel for ARENAS.
RAYMUNDO on the other hand, contended that the jewelry was
pledged to the pawnshop by Perello as a security for a P1,524 loan with the
knowledge, consent, and mediation of Gabriel La O, a son of the ARENAS.
Hence, it was alleged that the latter were estopped from disavowing the
action of Perello. RAYMUNDO then prayed that the complaint be dismissed
and that the jewelry seized be returned to the pawnshop’s possession.
The lower court ordered RAYMUNDO to restore to ARENAS. the
jewelry. Hence, this appeal by RAYMUNDO.
ISSUE
Whether or not RAYMUNDO should be entitled to possession of the
jewelry.
RULING
NO. Instead of Raymundo, the rightful possessor of the jewelry was
ARENAS, who was the owner thereof.
Article 1857 of the Civil Code prescribes as one of the essential
requisites of the contracts of pledge and of mortgage, that the thing pledged
or mortgaged must belong to the person who pledges or mortgages it.
Because of the fact that Perello was not the legitimate owner of the
jewelry which she pledged to the RAYMUNDO, the contract of pledge
entered into by both is, of course, null and void. Hence, the jewelry so
pawned could not serve as security for the payment of the sum loaned, nor
can the latter be collected out of the value of the said jewelry.
In the case at bar, it was not proven that ARENAS authorized Perello to
pawn the jewelry given to her by Arenas to sell on commission. Because of
the mere fact of Perello's having been convicted and sentenced for estafa,
the rest of the dispositive part of the said sentence must be complied with,
that is, the jewelry misappropriated must be restored to its owner, which
was in possession of the pawnshop of RAYMUNDO, who acquired it by legal
means.
Even supposing that RAYMUNDO had acted in good faith in accepting
the pledge of the jewelry in litigation, even then he would not be entitled to
retain it until the owner thereof reimburse him for the amount loaned to the
embezzler.
Between the supposed good faith of RAYMUNDO and the undisputed
good faith of the ARENAS, the owner of the jewelry, neither law nor justice
permit that the latter, after being the victim of embezzlement, should have
to choose one of the two extremes of a dilemma. Both of which, without
legal ground or reason, are injurious and prejudicial to her interests and
rights, that is, she must either lose her jewelry or pay a large sum received by
the embezzler as a loan from the defendant, when ARENAS is not related to
the latter by any legal or contractual bond out of which legal obligations
arise.
AZNAR vs. YAPDIANGCO
G.R. No. L-18536. March 31, 1965
 If the owner has lost a thing, or if he has been unlawfully
deprived of it, he has a right to recover it, not only from
the finder, thief or robber, but also from third persons
who may have acquired it in good faith from such finder,
thief or robber.
FACTS
In 1959, intervenor TEODORO SANTOS advertised the sale of
his FORD FAIRLANE 500. A certain L. De Dios, claiming to be a
nephew of Vicente Marella, went to the Santos residence to
answer the ad. During the transaction, Marella agreed to buy the
car for P14,700 on the understanding that the price would be paid
only after the car had been registered in his name.
After a Deed of Sale was executed by the parties, they then
proceeded to the Motor Vehicles where the registration of the car
in Marella's name was effected. Up to this stage of the transaction,
the purchased price had not been paid.
TEODORO SANTOS gave the registration papers and a copy of
the deed of sale to his son, Irineo Santos, and instructed him not to
part with them until Marella shall have given the full payment for
the car. When Irineo demanded the payment from Marella, the
latter said that the amount he had on hand then was short by some
P2,000 and begged off to be allowed to secure the shortage from a
sister. Thereafter, he ordered L. De Dios to go to the said sister and
suggested that Irineo go with him. At the same time, he requested
the registration papers and the deed of sale from Irineo Santos on
the pretext that he would like to show them to his lawyer. Trusting
the good faith of Marella, Irineo handed over the same to the latter
and thereupon, proceeded to the alleged house of Marella's sister.
When they reached the alleged house of Marella’s sister,
Irineo and L. De Dios entered the house while their unidentified
companion remained in the car. Once inside, L. De Dios asked
Irineo to wait at the sala while he went inside a room. However,
time passed but L. De Dios did not return. Irineo then found out
that L. De Dios and his unidentified companion were no longer
there anymore and that nobody in the house knew L. De Dios.
When Irineo went to the house of Marella, he found it closed and
Marella was gone. Finally, he reported the matter to his father who
promptly advised the police authorities.
On the very same day, Marella was able to sell the car for
P15,000 to petitioner JOSE B. AZNAR, who acquired the said car in
good faith, for a valuable consideration and without notice of the
defect appertaining to the vendor's title. While AZNAR was
attending to the car’s registration, agents of the Philippine
Constabulary headed by respondent CAPT. RAFAEL YAPDIANGCO,
seized and confiscated the same in consequence of the report to
them by TEODORO SANTOS that the said car was unlawfully taken
from him. AZNAR then filed a complain for replevin YAPDIANGCO.
Claiming ownership of the vehicle, he prayed for its delivery to him.
In the course of the litigation, however, TEODORO SANTOS was
allowed to intervene by the lower court.
The lower court awarded the car to SANTOS, as it found that
he had been unlawfully deprived of his personal property by
Marella, from whom the AZNAR traced his right. Hence, SANTOS
was entitled to its recovery on the mandate of Article 559 of the
Civil Code.
From this decision, Aznar appealed. He contended that the
applicable provision of the Civil Code is Article 1506 and not Article
559. Article 1506 provides:
ART. 1506. Where the seller of goods has a
voidable title thereto, but his, title has not been voided
at the time of the sale, the buyer acquires a good title to
the goods, provided he buys them in good faith, for
value, and without notice of the seller's defect of title.
ISSUE
Whether or not AZNAR had a better right to acquire
possession of the car.
RULING
NO. The reliance of AZNAR on Art. 1506 was unmeritorious.
The car should be warded to TEODORO SANTOS instead.
Under the aforequoted provision, it is essential that the seller
should have a voidable title at least. It is very clearly inapplicable
where, as in this case, the seller had no title at all.
Vicente Marella did not have any title to the property under litigation
because the same was never delivered to him. He sought ownership or
acquisition of it by virtue of the contract. Vicente Marella could have
acquired ownership or title to the subject matter thereof only by the delivery
or tradition of the car to him.
For the legal acquisition and transfer of ownership and other property
rights, the thing transferred must be delivered, inasmuch as, according to
settled jurisprudence, the tradition of the thing is a necessary and
indispensable requisite in the acquisition of said ownership by virtue of
contract.
The lower court was correct in applying Article 559 of the Civil Code to
the case at bar, for under it, the rule is to the effect that if the owner has lost
a thing, or if he has been unlawfully deprived of it, he has a right to recover
it, not only from the finder, thief or robber, but also from third persons who
may have acquired it in good faith from such finder, thief or robber. The said
article establishes two exceptions to the general rule of irrevindicability, to
wit, when the owner (1) has lost the thing, or (2) has been unlawfully
deprived thereof. In these cases, the possessor cannot retain the thing as
against the owner, who may recover it without paying any indemnity, except
when the possessor acquired it in a public sale.
Under Article 559 of the new Civil Code, a person illegally deprived of
any movable may recover it from the person in possession of the same and
the only defense the latter may have is if he has acquired it in good faith at a
public sale, in which case, the owner cannot obtain its return without
reimbursing the price paid therefor. In the present case, TEODORO SANTOS
had been illegally deprived of his car through the ingenious scheme of
Marella to enable the latter to dispose of it to AZNAR, as if he were the
owner thereof. TEODORO SANTOS, therefore, could still recover possession
of the car even if it is in the possession of AZNAR who had acquired it in good
faith from Marella. The maxim that "no man can transfer to another a better
title than he had himself" obtains in the civil as well as in the common law.
EDCA vs. SANTOS
G.R. No. 80298. April 26, 1990
EDCA was not unlawfully deprived of the books because it was the
one which made the delivery to the impostor Cruz. The latter then
acquired ownership over it, which was subsequently transferred to
the buyers, the SPOUSES SANTOS, who purchased said books in
good faith and diligence as to ascertain the invoice issued by EDCA
to Cruz.
FACTS
In 1981, a person identifying himself as Professor Jose Cruz as dean of
De La Salle Collge, placed an order by telephone with EDCA PUBLISHING &
DISTRIBUTING CORP. for 406 books, payable on delivery.
EDCA prepared the corresponding invoice and delivered the books as
ordered, for which Cruz issued a personal check covering the purchase price
of P8,995.65.
Later, Cruz sold 120 of the books to private respondent LEONOR
SANTOS who, after verifying the seller's ownership from the invoice he
showed her, paid him P1,700.00.
Meanwhile, EDCA having become suspicious over a second order placed
by Cruz even before clearing of his first check, made inquiries with the De la
Salle College but it was informed that there was no such person in its employ.
Further verification revealed that Cruz had no more account or deposit with
the Philippine Amanah Bank, against which he had drawn the payment check.
EDCA then went to the police, which set a trap and arrested Cruz,
whose real name was Tomas de la Pena.
On the night of the same date, EDCA sought the assistance of the
police, which forced their way into the store of the SPOUSES LEONOR and
GERARDO SANTOS and threatened them with prosecution for buying stolen
property. They seized the 120 books without warrant, loading them in a van
belonging to EDCA, and thereafter turned them over to the EDCA.
The SPOUSES SANTOS demanded for the return of said books but it was
rejected. Hence, the SPOUSES SANTOS sued EDCA for the recovery of the
books. A writ of preliminary attachment was issued and the EDCA finally
surrendered the books to the SPOUSES SANTOS.
The MTC recognized the ownership of the books in the SPOUSES
SANTOS. The same was sustained by both the RTC and CA. Hence, this
appeal.
 EDCA contended that because the impostor Cruz acquired no
title to the books, the latter then could not have validly transferred
it to the SPOUSES SANTOS. Its reason is that as the payment check
bounced for lack of funds, there was a failure of consideration that
nullified the contract of sale between it and Cruz.
ISSUE
Whether or not EDCA was entitled to possession of the
property.
RULING
NO. The SPOUSES SANTOS had a better right to possess said
books.
The impostor Cruz acquired ownership over the books because
they were delivered to him
The contract of sale is consensual and is perfected once
agreement is reached between the parties on the subject matter
and the consideration. Ownership in the thing sold shall not pass to
the buyer until full payment of the purchase price only if there is a
stipulation to that effect. Otherwise, the rule is that such
ownership shall pass from the vendor to the vendee upon the
actual or constructive delivery of the thing sold even if the
purchase price has not yet been paid.
Non-payment only creates a right to demand payment or to
rescind the contract, or to criminal prosecution in the case of
bouncing checks. But absent the stipulation above noted, delivery
of the thing sold will effectively transfer ownership to the buyer
who can in turn transfer it to another.
Actual delivery of the books having been made, CRUZ
acquired ownership over the books which he could then validly
transfer to the private respondents. The fact that he had not yet
paid for them to EDCA was a matter between him and EDCA and
did not impair the title acquired by the private respondents to the
books.
“Unlawfully deprived”
One may well imagine the adverse consequences if the phrase
"unlawfully deprived" were to be interpreted in the manner
suggested by EDCA. A person relying on the seller's title who buys a
movable property from him would have to surrender it to another
person claiming to be the original owner who had not yet been
paid the purchase price therefor. The buyer in the second sale
would be left holding the bag, so to speak, and would be compelled
to return the thing bought by him in good faith without even the
right to reimbursement of the amount he had paid for it.
LEONOR SANTOS took care to ascertain first that the books
belonged to CRUZ before she agreed to purchase them. The EDCA
invoice CRUZ showed her assured her that the books had been paid
for on delivery. By contrast, EDCA was less than cautious-in fact,
too trusting-in dealing with the impostor. Although it had never
transacted with him before, it readily delivered the books he had
ordered (by telephone) and as readily accepted his personal check
in payment. It did not verify his identity although it was easy
enough to do this. It did not wait to clear the check of this unknown
drawer. Worse, it indicated in the sales invoice issued to him, by
the printed terms thereon, that the books had been paid for on
delivery, thereby vesting ownership in the buyer.
Surely, the SPOUSES SANTOS did not have to go beyond that
invoice to satisfy herself that the books being offered for sale by
Cruz belonged to him; yet she did. Although the title of Cruz was
presumed under Article 559 by his mere possession of the books,
these being movable property, LEONOR SANTOS nevertheless
demanded more proof before deciding to buy them.
It would certainly be unfair now to make the the SPOUSES
SANTOS bear the prejudice sustained by EDCA as a result of its own
negligence. There could be no the justice in transferring EDCA's loss
to the Santoses who had acted in good faith, and with proper care,
when they bought the books from Cruz.
LEDESMA vs. CA
G.R. No. 86051. September 1, 1992
The sale entered by CITIWIDE and the impostor was valid.
CITIWIDE was not illegally deprived of the car simply because the
check in payment therefor was subsequently dishonored. Hence,
the transfer of ownership from the impostor to LEDESMA was
valid as well. LEDESMA had a better right to possess the vehicle
because he was a purchaser in good faith and for value.
FACTS
In 1977, a person representing himself to be Jojo Consunji, purchased
purportedly for his father, a certain Rustico T. Consunji, 2 brand new motor
vehicles from respondent CITIWIDE MOTORS, INC. Thereafter, CITIWIDE
delivered said vehicles to the person representing himself to be Jojo
Consunji. The latter issued a manager’s check worth P101,000 was full
payment of the value of the vehicles.
However, when CITIWIDE deposited the said check, it was dishonored
by the bank on the ground that it was tampered with, the correct amount of
P101.00 having been raised to P101,000. Hence, CITIWIDE reported said
criminal act to the Philippine Constabulary, which found out that the real
identity of the impostor was Armando Suarez who had a long line of criminal
cases against him for estafa using his similar modus operandi.
Later, CITIWIDE was able to recover one of the vehicles, which was
found abandoned. It also found out that the possession of the other vehicle
was transferred to petitioner JAIME LEDESMA.
LEDESMA, however claimed that he purchased said vehicle and paid for
it in good faith from its registered owner, one Pedro Neyra. After posting the
necessary bond, CITIWIDE was able to recover possession of the vehicle in
possession of LEDESMA.
The lower court ruled in favor of LEDESMA. It ruled that LEDESMA was a
buyer in good faith and for valuable consideration.
On appeal with the CA, said decision was reversed. LEDESMA was
ordered to return the possession of said vehicle to CITIWIDE. It held that
where the owner has lost the thing or has been unlawfully deprived thereof,
the good faith of the possessor is not a bar to recovery of the movable unless
the possessor acquired it in a public sale of which there is no pretense in this
case. Contrary to the court's assumption, the issues not primarily the good
faith of LEDESMA, for even if this were true, this may not be invoked as a
valid defense if it be shown that CITIWIDE was unlawfully deprived of the
vehicle.
Hence, this appeal by LEDESMA.
ISSUE
Whether or not CITIWIDE was entitled to repossess the vehicle.
RULING
NO. LEDESMA had a better right to possess said vehicle.
It was therefore erroneous for the CA to declare that CITIWIDE was
illegally deprived of the car simply because the check in payment therefor
was subsequently dishonored. It also erred when it divested the LEDESMA, a
buyer in good fait,h who paid valuable consideration therefor, of his
possession thereof.
It is quite clear that a party who (a) has lost any movable or (b) has been
unlawfully deprived thereof can recover the same from the present
possessor even if the latter acquired it in good faith and has, therefore, title
thereto for under the first sentence of Article 559, such manner of
acquisition is equivalent to a title. There are three (3) requisites to make
possession of movable property equivalent to title, namely: (a) the
possession should be in good faith; (b) the owner voluntarily parted with the
possession of the thing; and (c) the possession is in the concept of owner.
Undoubtedly, one who has lost a movable or who has been unlawfully
deprived of it cannot be said to have voluntarily parted with the possession
thereof. This is the justification for the exceptions found under the second
sentence of Article 559 of the Civil Code.
In the present case, there was a perfected unconditional contract of
sale between CITIWIDE and the original vendee impostor. The former
voluntarily caused the transfer of the certificate of registration of the vehicle
in the name of the first vendee even if the said vendee was represented by
someone who used a fictitious name--and likewise voluntarily delivered the
cars and the certificate of registration to the vendee's alleged representative.
Title thereto was forthwith transferred to the vendee. The subsequent
dishonor of the check because of the alteration merely amounted to a failure
of consideration which does not render the contract of sale void, but merely
allows the prejudiced party to sue for specific performance or rescission of
the contract, and to prosecute the impostor for estafa under Article
315 of the Revised Penal Code.
The contract of sale is consensual and is perfected once
agreement is reached between the parties on the subject matter
and the consideration. From that moment, the parties may
reciprocally demand performance, subject to the provisions of the
law governing the form of contracts. Ownership in the thing sold
shall not pass to the buyer until full payment of the purchase price
only if there is a stipulation to that effect. Otherwise, the rule is
that such ownership shall pass from the vendor to the vendee upon
the actual or constructive delivery of the thing sold even if the
purchase price has not yet been paid.
Non-payment only creates a right to demand payment or to
rescind the contract, or to criminal prosecution in the case of
bouncing checks. But absent the stipulation above noted, delivery
of the thing sold will effectively transfer ownership to the buyer
who can in turn transfer it to another. The failure of the buyer to
make good the price does not, in law, cause the ownership to
revest in the seller until and unless the bilateral contract of sale is
first rescinded or resolved pursuant to Article 1191 of the new Civil
Code.
ARTICLE 560: Wild animals are possessed only while they are under
one’s control; domesticated or tamed animals are considered
domestic or tame, if they retain the habit of returning to the
premises of the possessor.
ARTICLE 561: One who recovers, according to law, possession
unjustly lost, shall be deemed for all purposes which may redound
to his benefit, to have enjoyed it without interruption.
 When is a person deemed to have been unlawfully
deprived of a thing:
EDCA PUBLISHING V SANTOS
Facts:
A person identifying himself as Prof. Cruz of DE la Salle College
placed an order via telephone for 406 books with EDCA Publishing
payable on delivery (COD).
A person identifying himself as Prof. Cruz of DE la Salle College
placed an order via telephone for 406 books with EDCA Publishing
payable on delivery (COD).
EDCA prepared the corresponding invoice and delivered
the books as ordered, for which Cruz issued a personal check
covering the purchase price of P8, 995.65. Cruz sold 120 books to
Leonor Santos who, after verifying the seller’s ownership from the
invoice Cruz showed her, paid him P1, 700.
Meanwhile, EDCA having became suspicious over a
second order placed by Cruz even before clearing of his first check,
made inquiries with Della Sale College where he had claimed to be
dean and was informed that there was no such person in its
employ.
Further verification revealed that Cruz had no more
account or deposit with the Philippine Amanah Bank, against which
he had drawn the payment check. EDCA then went to the police,
whch set a trap and arrested Cruz.
That night, EDCA sought the assistance of the police
which forced their way into the store of Santos and threatened her
with prosecution for buying stolen property. They seized the 120
books without warrant, loading them in a van belonging to EDCA,
and thereafter, turned them over to EDCA.
Santos sued for the recovery of the books. EDCA
contended that it can recover the books from Santos considering
that EDCA was unlawfully deprived thereof since the check issued
by Cruz was dishonored thus, nullifying the contract of sale
between EDCA and Cruz.
Issue: W/N Santos was a possessor in good faith.
Held: Yes. The contention of EDCA is unacceptable. The first
sentence of Art. 559 provides that “the possession of movable
property acquired in good faith is equivalent to title, thus
dispensing with further proof. Leonor Santos acquired the books. She
ascertained the ownership of the books from EDCA invoice showing that they
had been sold to Cruz, who said he was selling them for discount because he
was in financial need. Surely, Santos did not have to go beyond the invoice to
satisfy herself that the books being offered for sale by Cruz belonged to him;
yet she did. Although the title of Cruz was presumed under Art 559 by his
mere possession of the books, these being movable property, Santos
nevertheless demanded proof before deciding to buy them. By contrast,
EDCA was less than cautious – in fact, too trusting. It would certainly be
unfair now to make Santos bear the prejudice sustained by EDCA as a result
of its own negligence. We cannot agree the justice in transferring EDCA’s loss
to the Santoses who had acted in good faith, and with proper care, when
they bought the books from Cruz.
Issue: W/N EDCA was unlawfully deprived of the books
Held: No. Art 1477 provides that the ownership of the thing sold shall be
transferred to the vendee upon the actual or constructive delivery thereof.
Art 1478 also provides that ownership in the thing sold shall not pass to the
buyer until full payment of the purchase price ONLY if there is a stipulation to
that effect. Otherwise, the rule is that such ownership shall pass from the
vendor to the vendee upon the actual or constructive delivery of the thing
sold even if the purchase price has not yet been paid. Non-payment creates a
right to demand payment or to rescind the contract, or to criminal
prosecution in the case of bouncing checks. But absent any stipulation,
delivery of the thing sold will effectively transfer ownership to the buyer who
can in turn transfer it to another.
USUFRUCTUARY
ARTICLE 562: Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and substance, unless the
title constituting it or the law otherwise provides.
 The usufruct gives the usufructuary a certain right and obligation.
 A usufruct is a real right. A real right of temporary nature which
authorizes its holder to enjoy all the benefits which result from
the normal enjoyment or exploitation of another’s property, with
the obligation to return, at the designated time, either of the
same thing or in special cases, its equivalent
 Characters in the contract of usufruct:
o naked owner
o usufructuary
 In the contract of usufruct, the right to the fruits and the right to
use are given to the usufructuary but the right to dispose will
remain with the owner. The right to recover, however, may
belong either to the usufructuary or to the naked owner.
 Formula here when there is usufruct
full ownership = naked ownership + usufruct
naked ownership = full ownership – usufruct
usufruct = full ownership – naked ownership
ESSENTIAL CHARACTERISTICS
1) it is a real right
2) It is of temporary nature or duration. Even if it is constituted for
the whole lifetime of the usufructuary, it is still temporary
because everybody dies. So it cannot be perpetual. Its purpose is
to enjoy the benefits and derive all advantages from the object as
consequences of normal use of exploitation
 Natural characteristic or element is ordinarily present, but
contrary stipulation can eliminate it because it is not essential)
 Accidental characteristics or elements are those which may be
present or absent depending upon the stipulation of the parties)
Examples:
1. whether it be pure or conditional
2. the number of years it will exist
3. whether it is in favor of one person or several etc.
Objects of the usufruct:
1. may be real or personal property
2. may be sterile or productive
 3. may be created over a ---- --. It is not necessary a thing.
But there is a requirement that such right is not strictly
personal and intransmissible and as long as it has an
independent existence.
ARTICLE 563: Usufruct may be constituted by law, by the will of
private persons expressed in acts inter
 How usufruct is created:
1) by law
o Art. 225-226 in relation to Art. 321 of the CC.
by 225 and 226 of the Family Code, wherein
the parental usufruct is limited only to the
fruits of the property owned by the minor
child. So that the minor child shall own
exclusively his property, only that the fruits
derived, the parents may have usufruct over
them. But then this parental usufruct is
limited only to the child's support and the
collective daily needs of the family.
2) by the will of the private person
3) by prescription
ARTICLE 564: Usufruct is constituted on the whole or a part of the
fruits of the thing, in favor of one or more persons, simultaneously
or successively, and in every case from or to a certain day, pure or
conditionally. It may also be constituted on a right, provided it is not
strictly personal or intransmissible.
10. Classification of usufruct according to quantity or extent (of
fruits or object):
1) as to fruits – total or partial (depending on
whether all the fruits are given or not)
2) as to object – universal (if over the entire
patrimony); singular or particular (if only an
individual thing is included)
11. Classification of Usufruct as to number of persons enjoying
the right:
1) simple – if only one usufruct
2) multiple – if several usufructuaries enjoy multiple
usufruct could be:
 simultaneous – which means
at the same time
 successive – one after
another
12. Classification of usufruct as to the quality or kind of objects
involved:
1) usufruct over rights. Remember, that the right
must not be strictly personal or intransmissible. A
usufruct over a real right is also by itself a real
right.
2) usufruct over things:
o normal usufruct – this involves non-consumable
things where the form and substance are
preserved.
o Abnormal – this involves consumable things.
13. Classification of Usufruct according to terms and conditions:
1) pure usufruct – here there is no term or condition
2) with term or period:
o ex die – from a certain day
o in diem – up to a certain day
o ex die in diem – from a certain day up to a certain
day with a condition
ARTICLE 565: The rights and obligations of the usufructuary shall
be those provided in the title constituting the usufruct; in default of
such title, or in case it is deficient, the provisions contained in the
two following chapters shall be observed.
14. Rules governing a usufruct:
1) agreement by the parties
2) civil code
15. Rule in case of conflict:
In case of conflict between the rights granted, a usufructuary
by virtue of a will, and codal provisions, the former, unless repugnant to
the mandatory provisions of the civil code, should prevail.
ELEIZEGUI vs. MANILA LAWN TENNIS CLUB
GR No. 967. May 19, 1903.
Usufruct is a right of superior degree to that which arises from a
lease. It is a real right and includes all the jus utendi and jus
fruendi. Nevertheless, the utmost period for which a usufruct can
endure, if constituted in favor of a natural person, is the lifetime of
the usufructuary; and if in favor of a juridical person, it can not be
created for more than thirty years.
FACTS
On January 25, 1980 petitioners DARIO and GAUDENCIO ELEIZEGUI
entered into a contract of lease of its land with the respondent MANILA
LAWN TENNIS CLUB through its secretary Mr. Williamson.
By the contract of lease the lessee is expressly authorized to make
improvements upon the land, by erecting buildings of both permanent and
temporary character, by making fills, laying pipes, and making such other
improvements as might be considered desirable for the comfort and
amusement of the members. It was also stipulated that the lease for all the
time and that the members of the said club may desire to use it. Also, Mr.
Williamson or whoever may succeed him as secretary of said club may
terminate the lease whenever desired without other formality than that of
giving a month's notice. It was also specified that the ELEZEGUIs as owners of
the land would undertake to maintain the club as long as the tenant, the
MANILA LAWN TENNIS CLUB should see fit without altering in the slightest
degree the conditions of this contract, even though the estate be sold. The
rent of the said land is fixed at P25 per month.
On August 8, 1980, the ELEZEGUIs terminated the contract of lease by
the notice given to the MANILA LAWN TENNIS CLUB. The latter however,
refused to accede and vacate the leased land.
On the ground that the lease was already terminated, the ELEZEGUIs
filed an action for unlawful detainer.
With respect to the term of the lease the present question has arisen. In
its discussion 3 theories have been presented:
1. the duration depends upon the will of the lessor, who, upon one
month's notice given to the lessee, may terminate the lease so
stipulated;
2. the duration makes it dependent upon the will of the lessee, as
stipulated in the contract; and
3. the right is reserved to the courts to fix the duration of the term.
The first theory is that which has prevailed in the judgment below.
Hence, this appeal.
ISSUE
Whether or not the contract of lease was perpetual since in the
contract, the duration thereof as left to the will of the lessee alone.
RULING
NO, it was not perpetual. Although the contract left to the will of the
lessee the duration of the lease, it could not be understood to be a life
tenancy nor a perpetual lease. If the lease could last during such time as the
lessee might see fit, because it has been so stipulated by the lessor, it would
last, first, as long as the will of the lessee that is, all his life; second, during all
the time that he may have succession, inasmuch as he who contracts does so
for himself and his heirs.
Being a lease, it then it must be for a determinate period. By its very
nature it must be temporary just as by reason of its nature a emphyteusis
must be perpetual or for an unlimited period. If the lease was intended to be
perpetual, they should have not merely entered into a contract of lease but
either contract for a usufruct or an emphyteusis. Why should the lessee have
a greater right than the usufructuary, as great as that of an empbyteuta, with
respect to the duration of the enjoyment of the property of another?
Usufruct is a right of superior degree to that which arises from a lease. It
is a real right and includes all the jus utendi and jus fruendi. Nevertheless, the
utmost period for which a usufruct can endure, if constituted in favor of a
natural person, is the lifetime of the usufructuary; and if in favor of a juridical
person, it can not be created for more than thirty years.
Hence, the term of the lease could not be left to the will of the lessor,
the MANILA LAWN TENNIS CLUB alone. The proper remedy was the ask the
court to fic the duration of the lease and not the action for
unlawful detainer.
ALUNAN vs. VELOSO
GR No. 29158. December 29, 1928
It is incorrect to say that there can be no usufruct of
money, because it is a fungible thing.
FACTS
Petitioner RAFAEL ALUNAN was the judicial administrator of
the estate of the deceased Rosendo Alunan. The settlement of
deceased’s estate was approved by the court below. Jose Hernaez,
one of the heirs interested in this proceeding, assigned the whole
of his portion to respondent ELEUTERIA CH. VELOSO and the latter
objects to some of the items of the account filed.
VELOSO alleged that the lower court erred in admitting the
partition proposed by the administrator in his account. According
to this account, the total amount to be partitioned among the heirs
is P88,979.08, which the administrator distributed equally among
all the heirs, including the widow, each one receiving P11,122.38.
This partitionwas objected to with respect to the widow.
It was alleged that the distributable amount is in money, and
since the widow's right is only a usufruct, and as there can be no
usufruct of money, since it is a fungible thing, the adjudication
made to the widow was erroneous.
ISSUE
Whether or not there could be a usufruct of money.
RULING
YES, there could be. It is incorrect to say that there can be no
usufruct of money, because it is a fungible thing.
The widow, according to the law, only has a right to a portion
of the estate equal to that of the legitime of each of the children
without betterment. In the instant case none of the children
received a betterment. Consequently, the widow should receive a
portion equal to the share of each in the two-thirds of the
distributable amount making up the legitime, to be taken from the
one-third forming the betterment. Then, the other free third, which
the decedent failed to dispose of, must be partitioned among the
heirs to the exclusion of the widow, as an addition to their legitime.
Working out the computations on this basis, the widow should
receive only P8,474.19.
ARTICLE 566: The usufructuary shall be entitled to all natural,
industrial, and civil fruits of the property in usufruct. With respect to
hidden treasure which may be found on the land or tenement, he
shall be considered a stranger.
 The usufructuary is entitled to all the natural, industrial
and civil fruits of the property in usufruct, but with
respect to hidden treasure, the usufructuary is
considered a stranger.. unless of course he is the finder.
If he is the finder, then he is entitled to 50%.
BACHRACH vs. SEIFERT
GR No. L-2659. October 12, 1950
Shares of stocks dividends are civil fruits. The
usufructuray then, being entitled to civil fruits other
than natural and industrial fruits shall be entitled to
shares of stocks dividends as well.
FACTS
The deceased E. M. Bachrach, left no forced heir except his
widow, petitioner MARY MCDONALD BACHRACH.
In his last will and testament, the deceased bequeath and
devised to his wife BACHRACH for life all the fruits and usufruct of
the remainder of his estate after payment of the legacies, bequests,
and gifts; and she may enjoy said usufruct and use or spend such
fruits as she may in any manner wish. The will further provided that upon the
death of BACHRACH, one-half of all his estate shall be divided share and
share alike by and between his legal heirs respondents SOPHIE SIEFERT and
ELISA ELIANOFF, to the exclusion of his brothers.
The estate of E. M. Bachrach, as owner of 108,000 shares of stock of the
Atok-Big Wedge Mining Co., Inc., received from the latter 54,000 shares
representing 50% stock dividend on the said 108,000 shares.
On July 10, 1948, BACHRACH, as usufructuary or life tenant of the
estate, petitioned the lower court to authorize the Peoples Bank and Trust
Company, as administrator of the estate of E. M. Bachrach, to transfer to her
the said 54,000 shares of stock dividend by indorsing and delivering to her
the corresponding certificate of stock, claiming that said dividend, although
paid out in the form of stock, is fruit or income and therefore belonged to her
as usufructuary or life tenant.
Respondents SIEFERT and ELIANOFF, as legal heirs of the deceased,
opposed said petition on the ground that the stock dividend in question was
not income but formed part of the capital and therefore belonged not to the
usufructuary but to the remainderman.
The lower court granted the petition of BACHRACH. HENCE, this appeal.
While appellants admitted that a cash dividend is an income, they contend
that a stock dividend is not, but merely represents an addition to the
invested capital.
ISSUE
Whether or not the 54,000 shares of stock dividends belong to the the
usufructuary MARY MCDONALD BACHRACH.
RULING
YES, the shares belong to the usufructuary.
There are two rules applicable in the present case: the Massachussetts
rule and the Pensylvannia rule. The Massachusetts supports SEIFERT and
ELIANOFF 's contention. The Pennsylvania rule on the other hand, supports
the contention of BACHRACH.
The Massachusetts rule regards cash dividends, however large, as
income, and stock dividends, however made, as capital. It holds that a stock
dividend is not in any true sense any dividend at all since it involves no
division or severance from the corporate assets of the subject of the
dividend; that it does not distribute property but simply dilutes the shares as
they existed before; and that it takes nothing from the property of the
corporation, and adds nothing to the interests of the shareholders.
The Pennsylvania rule declares that all earnings of the corporation
made prior to the death of the testator stockholder belong to the corpus of
the estate, mid that all earnings, when declared as dividends ill whatever
form, made during the lifetime of the usufructuary or life tenant are income
and belong to the usufructuary or life tenant.
The Supreme Court thought that the Pennsylvania rule was more in
accord with our statutory laws than the Massachusetts rule. Under section 16
of our Corporation Law, no corporation may make or declare any dividend
except from the surplus profits arising from its business. Any dividend,
therefore, whether cash or stock, represents surplus profits. Article 566 (then
Article 471) of the Civil Code provides that the usufructuary shall be entitled
to receive all the natural, industrial, and civil fruits of the property in
usufruct.
The 108,000 shares of stock were part of the property in usufruct. The
54,000 shares of stock dividend were civil fruits of the original investment.
They represented profits, and the delivery of the certificate of stock covering
said dividend is equivalent to the payment of said profits. Said shares may be
sold independently of the original shares, just as the offspring of a domestic
animal may be sold independently of its mother.
OROZCO vs. ALCANTARA
GR No. L-3691. November 21, 1951
A dividend, whether in the form of cash or stock, is income and,
consequently, should go to the usufructuary, taking into
consideration that a stock dividend as well as a cash dividend can
be declared only out of profits of the corporation, for if it were
declared out of the capital it would be a serious violation of the
law.
FACTS
In 1922, Eugenio del Saz Orozco died, leaving a will which he had
executed in 1921. It was afterwards duly admitted to probate. The pertinent
clause of that will provided that certain properties should be given
in life usufruct to his son petitioner JACINTO DEL SAZ OROZCO Y
MORTERA, with the obligation on his part to preserve said
properties in favor of the other heirs who were declared the naked
owners thereof. Among these properties were 5,714 shares of
stock of the Benguet Consolidated Mining Company and 94 shares
of stock of the Manila Electric Company, according to the project of
partition executed pursuant to said will and duly approved by the
court.
In 1934, the Benguet Consolidated Mining Company declared
and distributed stock dividends out of its surplus profits, the
petitioner OROZCO received his proportionate portion of 11,428
shares. In 1939, said Mining Company again declared stock
dividends out of its surplus profits, of which the OROZCO received
17,142 shares, making a total of 28,570 shares.
ISSUE
Whether the stock dividends should be preserved in favor of
the owners or an income or fruits of the capital which should be
given to and enjoyed by the life usufructuary as his own exclusive
property.
RULING
The stock dividends were income or fruits of the capital which
should be given to and enjoyed by the life usufructuary, OROZCO as
his own exclusive property.
Citing the case of Bachrach vs. Seifert, a dividend, whether in
the form of cash or stock, is income and, consequently, should go
to the usufructuary, taking into consideration that a stock dividend
as well as a cash dividend can be declared only out of profits of the
corporation, for if it were declared out of the capital it would be a
serious violation of the law.
Respondents SALVADOR ARANETA ET AL. attempted to
differentiate the present case from the Bachrach case, contending
that, while the doctrine in that case effected a just and equitable
distribution, the application of it in the present case would cause
an injustice, for, quoting Justice Holmes, "abstract propositions do
not decide concrete cases."
One of the differences pointed out is that by the declaration
of stock dividends the voting power of the original shares of stock is
considerably diminished, and, if the stock dividends are not given
to the remaindermen, the voting power of the latter would be
greatly impaired. Bearing in mind that the number of shares of
stock of the Benguet Consolidated Mining Company is so large, the
diminution of the voting power of the original shares of stock in
this case cannot possibly affect or influence the control of the
policies of the corporation which is vested in the owners of the
great block of shares. This would not be a sufficient reason for
modifying the doctrine of the Bachrach case. These remarks were
made in answer to the argument of the appellees in this particular
case, but they do not imply that if the diminution of the voting
power were considerable the doctrine should be modified.
ARTICLE 567: Natural or industrial fruits growing at the time the
usufruct begins, belong to the usufructuary.
Those growing at the time the usufruct terminates,
belong to the owner.
In the proceeding cases, the usufructuary at the
beginning of the usufruct, has no obligation to refund to the owner
any expenses incurred; but the owner shall be obliged to reimburse
at the termination of the usufruct, from the proceeds of the
growing fruits, the ordinary expenses of cultivation, for seed, and
other similar expenses incurred by the usufructuary.
The provisions of this article shall not prejudice the rights
of 3rd persons, acquired either at the beginning or at the
termination of the usufruct.
16. Rules to pending natural and industrial fruits:
1. Those pending at the time usufruct begins-- belong to
usufructuary, with no obligation to refund.
2. Those pending at the end of the usufruct--belong to the
naked owner but with obligation to make refunds for
obligations incurred for the growing and other similar
expenses which must be taken from the proceeds of the fruits.
ARTICLE 568: If the usufructuary has leased the lands or tenements
given in usufruct, and the usufruct should expire before the
termination of the lease, he or his heirs and successors shall receive
only the proportionate share of the rent that must be paid by the
lessee.
 [Civil Fruits] covered by Art. 470: The rule is that they are deemed
to accrue PROPORTIONATELY to the naked owner and the
usufructuary for the time the usufruct lasts.
 So they shall divide the proceeds proportionately for the time the
usufruct lasts.
Illustration: There is a contract between A and B wherein A gave B in usufruct
the profits of a certain building for 5 years.
YR 1- 10,000 ratio is 3:2, thus:
YR 2- 20,000 3 (P120,00)/5 = P72,000 - B
YR 3- 30,000 2(P120,000)/5 = P48,000 - A
YR 4- 20,000
YR 5- 40,000
------------
P120,000.
ARTICLE 569: Civil fruits are deemed to accrue daily, and belong to
the usufructuary in proportion to the time the usufruct may last.
ARTICLE 570: Whenever a usufruct is constituted on the right to
receive a rent or periodical pension. Whether in money or in fruits,
or in the interest on bonds or securities payable to bearer, each
payment due shall be considered as the proceeds or fruits of such
right.
Whenever it consists in the enjoyment of benefits
accruing from a participation in any industrial or commercial
enterprise, the date of the distribution of which is not fixed, such
benefits shall have the same character.
In either case they shall be distributed as civil fruits and
shall be applied in the manner prescribed in the preceding article.
 The object of the usufruct here is the right.
o The right to receive a rent or periodical pension,
whether in money or in fruits, or in the interest on
bonds or securities payable to bearer.
o The right to ‘ x x x enjoy benefits accruing from a
participation in any industrial or commercial
enterprise, the date of the distribution of which is not
fixed.
RULES under 570:
a) Each payment shall be considered as the proceeds or fruits of such
right;
b) They shall be distributed as civil fruits;
c) It shall be applied in the manner prescribe in 569. What do we
mean by that? They are deemed to accrue daily.
d) They shall belong to the usufructuary at the time the usufructuary
may last.
ARTICLE 571: The usufructuary shall have the right to enjoy any
increase which the thing in usufruct may acquire thru accession, the
servitudes established in its favor, and, in general, all the benefits
inherent therein.
ARTICLE 572: The usufructuary may personally enjoy the thing in
usufruct, lease it to another, or alienate his right of usufruct, even
by gratuitous title, but all the contracts he may enter into as such
usufructuary shall terminate upon the expiration of the usufruct,
saving leases of rural lands which shall be considered as subsisting
during he agricultural year.
SUMMARY:
17. What the usufructuary may do with respect to the thing subject of
usufruct?
1) may personally enjoy the thing himself or thru another;
 2) lease the thing to another even without the
consent of the naked owner. It does not need
consent. It is his right to lease it to another. The
lease should not extend longer than the period of
usufruct. But if there is a rural lease it shall be
subsisting during the agricultural year. Until the
harvest.
GR: There is no necessity for getting the consent of the naked
owner.
EXCEPTIONS:
1) caucion juratoria because the very essence of the grant
of usufructuary is the very [need of the] person or
usufructuary;
2) Legal usufruct [parental usufruct]; and
3) A usufruct made in consideration of the existence of
that person, because to do so would defeat the very
intention of the parties.
ARTICLE 573: Whenever the usufruct includes things which, without
being consumed, gradually deteriorate thru wear and tear, the
usufructuary shall have the right to make use thereof in accordance
with the purpose for which they are intended, and shall not be
obliged to return them at the termination of the usufruct except in
their condition at that time, but he shall be obliged to indemnify the
owner for any deterioration they may have suffered by reason of his
fraud or negligence.
18. Effect of deterioration:
1. If due to normal use, usufructuary is not liable; he can
return them in the condition that they may be at the
termination of the usufruct. There is no necessity for
him to make the necessary reparations to restore them
to their former condition.
2. If due to fortuitous event: usufructuary is obliged to
make the necessary and ordinary repairs.
3. If due to fraud: responsible for the damages caused by
reason of his fraudulent action, but the damages may be
offsetted against improvements under Art. 580.
 Effect of failure to return the thing constituted in
usufruct: Accdg. to Paras, usufructuary must pay for
their value. Value at the time the usufruct is terminated.
ARTICLE 574: Whenever the usufruct includes things which cannot
be used without being consumed, the usufructuary shall have the
right to make use of them under the obligation of paying their
appraised value at the termination of the usufruct, if they were
appraised when delivered. In case they were not appraised, he shall
have the right to return the same quantity and quality, or pay their
current price at the time the usufruct ceases.
 This is called abnormal usufruct on consumable things.
What are the rules? The usufruct can use them as if he is
the owner. Ex. rice, one can eat rice
 But at the end of the usufruct, he must:
1. pay the appraised value (appraised when the 1st
delivered);
2. if there was no appraisal, return the same kind, quality,
and quantity or pay the price current at the termination
of the usufruct.
ARTICLE 575: The usufructuary of fruit-bearing trees and shrubs
may make use if the dead trunks, and even if those cut off or
uprooted by accident, under the obligation to replace them with
new plants.
ARTICLE 576: If in consequence of a calamity or extraordinary event,
the trees or shrubs shall have disappeared in such considerable
number that it would not be possible or it would be too burdensome
to replace them, the usufructuary may leave the dead, fallen or
uprooted trunks at the disposal of the owner, and demand that the
latter remove them and clear the land.
ARTICLE 577: The usufructuary of woodland may enjoy all the
benefits which it may produce according to its nature.
If the woodland is a corpse or consists of timber for
building, the usufructuary may do such ordinary cutting or felling as
the owner was in the habit of doing, and in default of this, he may
do so in accordance with the custom of the place, as to the manner,
amount and season.
In any case the felling or cutting of trees shall be made in
such manner as not to prejudice the preservation of the land.
In nurseries, the usufructuary may make the necessary
thinnings in order that the remaining trees may properly grow.
With exception of the provisions of the preceding
paragraphs, the usufructuary cannot cut down trees, unless it be to
restore or improve some of the things in usufruct, and in such case
he shall first inform the owner of the necessity for the work.
 Special usufructuary in woodland
 General right: may enjoy all the benefits which it may produce
according to its nature.
 Specific rights:
1. If the woodland is a corpse (in the thicket of small
trees) or consists of timber for building he may do such
ordinary cutting or felling as the owner was in the habit
of doing. He does not have generally the right to cut
timber, but if the owner did it he can do what the
owner did. That’s it.
 In default of this, he may do so in
accordance with the custom of the place, as
to the manner, amount and season.
2. If there is nursery, the usufructuary may make the
necessary thinnings in order that the remaining trees
may properly grow.
 577 provides for the prohibition:
1. With the exception of the specific rights, he cannot cut
down trees unless it be to restore or improve some of
the things in usufruct, and in such case he shall first
inform the owner of the necessity for the work;
2. He cannot alienate the trees. Remember in the
usufruct of woodland the trees are not considered the
fruit.
ARTICLE 578: The usufructuary of an action to recover real property
or a real right, or movable property, has the right to bring the
action and to oblige the owner thereof to give him the authority for
this purpose and to furnish him whatever proof he may have. If in
consequence of the enforcement of the action he acquires the thing
claimed, the usufruct shall be limited to the fruits, the dominion
remaining with the owner.
 This is a special usufruct of an action to recover thru the courts or
legal processes.
 What is supposed to be recovered here?
1. recovery of real property
2. recovery of movable property
 The right to file a case for accion publiciana, forcible entry,
replevin.
 What are the rights of the usufructuary if the right is given to him
to recover?
1. The right to bring the action. Meaning he will be the one to file
the action
2. To oblige the owner thereof to give him the authority for this
purpose. (so you need an SPA);
3. To furnish him whatever proof needed for the action (any
evidence or proof should be passed on to the usufructuary).
19. Let’s go to procedure here. How is the action instituted, under whose
name? In the name of the usufructuary. What does the authority
require?
1. If it is for the recovery of property, he is still required
of SPA under 578;
2. If it is only to object or prevent disturbance over the
property, no need.
20. What happen if there is judgement? Na-recover na nila ang
property…naked ownership will belong to the owner; the
usufruct to recover will be transformed over the thing
recovered. The usufruct will now be over the thing acquired.
ARTICLE 579: The usufructuary may make on the property held in
usufruct such useful improvements or expenses for mere pleasure
as he may deem proper, provided he does not alter its form or
substance; but he shall have no right to be indemnified therefore.
He may, however, remove such improvements, should it be possible
to do so without damage to the property.
ARTICLE 580: The usufructuary may set off the improvements he
may have made on the property against any damage to the same.
 Requisites before set off can be made:
1. damage must caused by the usufructuary;
2. The improvements must have augmented
the value of the property.
ARTICLE 581: The owner of the property the usufruct of which is
held by another, may alienate it, but he cannot alter its form and
substance or do anything thereon which may be prejudicial to the
usufructuary.
ARTICLE 582: The usufructuary of a part of a thing held in common
shall exercise all the rights pertaining to the owner thereof with
respect to the administration and the collection of fruits or interest.
Should the co-ownership cease by reason of the division of the thing
held in common, the usufruct of the part allotted to the co-owner
shall belong to the usufructuary.
 Effect of partition: The usufructuary shall continue to
have usufruct over the part allotted to the co-owner
concerned. His rights as a usufructuary are not affected.
 OBLIGATIONS OF THE USUFRUCTUARY
ARTICLE 583: The usufructuary, before entering upon the enjoyment
of the property is obliged:
To make, after notice to the owner or his legitimate representative,
an inventory of all the property, which shall contain an appraisal of
the movables and a description of the condition of the immovables;
To give security, binding himself to fulfill the obligations imposed
upon him in accordance with this Chapter.
 When is the inventory required?
1. When no one will be injured thereby (ex: to
collect periodic pension);
2. when there is stipulation to the usufruct
agreement
3. if it is not in the will
ARTICLE 584: The provisions of No.2 of the preceding article shall
not apply to the donor who has reserved the usufruct of the
property donated, or to the parents who are usufructuaries of their
children’s property, except when the parents contract a second
marriage.
ARTICLE 585: The usufructuary, whatever may be the titled of the
usufruct, may be exercised from the obligation of making an
inventory or of giving security, when no one will be injured thereby.
Exceptions to the giving of security:
1. …shall not apply to the donor who has
reserved the usufruct of the property
donated.
Ex. A will donate the ownership of a building to his son, but he will
reserve the usufruct to himself so he still can collect rent.
2. …To the parents who are usufructuaries of their
children’s property except when the parent contracts
2nd marriage
3. When there is caucion juratoria.
ARTICLE 586: Should the usufructuary fail to give security in the
cases in which he is bound to give it, the owner may demand that
the immovables be placed under administration, that the movables
be sold, that the public bonds, instruments of credit payable to
order or to bearer be converted into registered certificates or
deposited in a bank or public institution, and that the capital or
sums in cash and the proceeds of the sale of the movable property
be invested in safe securities.
The interest on the proceeds of the sale of the movables
and that in public securities and bonds, and the proceeds of the
property placed under administration, shall belong to the
usufructuary.
Furthermore, the owner may, if he so prefers, until the
usufructuary gives security or is excused from so doing, retain in his
possession the property in usufruct as administrator, subject to the
obligation to deliver to the usufructuary the net proceeds thereof,
after deducting the sums which may be agreed upon or judicially
allowed him for such administration.
 Effect of failing to give security unless exempted:
- On the part of the naked owner, he may still opt:
a. to transfer the property to the usufructuary despite failure
to give required security;
b. but even if delivery is made, the naked owner may still later
demand the required security, unless he has waived his
right.
c. He may also demand that the immovable be placed under
administration in favor of another person.
d. He may demand that all the movables be sold.
e. He may opt to retain the property until after the security
required is posted.
- On the part of the usufructuary:
a. He cannot enter into the enjoyment of the property. 2. He
cannot posses, he cannot enjoy, until he gives the security.
b. He cannot compel the naked owner that he be appointed as
administrator in the meantime he cannot post the security.
c. He cannot collect maturing credits or make investments per
securities or credits without the consent of the naked
owner.
Caucion juratoria. This is a special usufruct, a promise under oath, a sworn
duty to take good care of the property and return the same at the end of the
usufruct. This promise will take the place of the security. It is based on
necessity and humanity.
 Caution Juratoria
A sworn duty to:
- take good care of the property and
- return the same at the end of the usufruct
 Caucion Juratoria only applies to:
1. furniture necessary for the use of the usufructuary;
2. the house which his family may live;
3. tools and implements and other movables necessary
for an industry or vocation which the usufructuary is
engaged.
ARTICLE 588: After the security has been given by the usufructuary,
he shall have right to all the proceeds and benefits from the day on
which in accordance with the title constituting the usufruct, he
should have commenced to receive them.
ARTICLE 589: The usufructuary shall take case of the things given in
usufruct as a good father of a family.
ARTICLE 590: A usufructuary who alienates or leases his right if
usufruct shall answer for any damage which the things in usufruct
may suffer thru the fault or negligence of the person who
substitutes him.
ARTICLE 591: If the usufruct be constituted on a flock or herd of
livestock, the usufructuary shall be obliged to replace with the
young thereof the animals that die each year from natural causes or
lost due to the rapacity of beasts of prey.
If the animals on which the usufruct is constituted should
all perish, without the fault if the usufructuary, on account of some
contagious disease or any other uncommon event, the usufructuary
shall fulfill his obligation by delivering to the owner the remains
which may have been saved from the misfortune.
Should the usufruct be on sterile animals, it shall be
considered, with respect to its effects, as though constituted in
fungible things.
ARTICLE 592: The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct.
By ordinary repairs are understood such as are required
by the wear and tear due to the natural use if the thing and are
indispensable for its preservation. Should the usufructuary fail to
make them after demand by the owner, the latter may make them
at the expense of the usufructuary.
 Repairs must be ordinary.
 REQUISITES FOR REPAIR:
1. must be required by wear and tear due to the natural
use of the thing;
2. must be indispensable for its preservation;
3. must have occurred during the usufruct
593: Extraordinary repairs shall be at the expense of the owner. The
usufructuary is obliged to notify the owner when the need for such
repairs is urgent.
ARTICLE 594: If the owner should make the extraordinary repairs,
he shall have a right to demand of the usufructuary the legal
interest on the amount expended for the time that the usufruct
lasts.
Should he not make them when they are indispensable
for the preservation of the thing, the usufructuary may make them;
but he shall have a right to demand of the owner, at the
termination of the usufruct, the increase in value which the
immovable may have acquired by reason of the repairs.
ARTICLE 595: The owner may construct any works and make any
improvements of which the immovable in usufruct is susceptible, or
make new plantings thereon if it be rural, provided that such acts
do not cause a diminution in the value of the usufruct or prejudice
the right of the usufructuary.
21. KINDS OF EXTRAORDINARY REPAIRS:
1) Those caused by NATURAL use but NOT NEEDED
for preservation – by implication.
2) Those caused by ABNORMAL or EXCEPTIONAL
CIRCUMSTANCES and NEEDED for preservation (as
when as earthquake renders the stairs of a house
unsafe).
3) Those caused by ABNORMAL or EXCEPTIONAL but
are NOT NEEDED for preservation.
22. REQUISITES BEFORE USUFRUCTUARY IS ALLOWED TO MAKE
EXTRAORDINARY REPAIRS:
1) There must be due notification to naked owner of
urgency.
2) The naked owner failed to make them.
3) The repair is needed for preservation.
23. RIGHTS OF USUFRUCTUARY WHO HAS MADE
EXTRAORDINARY REPAIRS
1) Get increase in value or reimbursement of
expenses
2) Right of retention until paid; reimbursement is to be made
only at the end of the usufruct.
 RULES:
1. If caused by ordinary repairs but not needed for preservation, the
naked owner shall bear the expenses, but then the usufructuary
may not compel the naked owner to make them.
2. Abnormal/exceptional circumstances but needed for
preservation-- borne by the naked owner.
 abnormal/exceptional circumstances but is not needed
for preservation: again it is borne by the naked owner,
and he may not be compelled to make them.
ARTICLE 596: The payment of annual charges and taxes and those
considered as a lien on the fruits shall be at the expense of the
usufructuary for all the time that the usufruct lasts.
 Although the property is in the possession of the usufructuary, the
naked owner may still –
1. construct works
2. make improvements
3. make new plantings
PROVIDED:
 The value of the usufruct is not diminished; or
 The right of the usufructuary is not prejudiced
 EFFECT OF INCREASE IN THE VALUE OF THE USUFRUCT:
1. The usufructuary profits be said increase (for he will still be
entitled to the use and fruits thereof).
2. The usufructuary does not have to pay legal interest on the
improvement. Reason: this was a voluntary act of the naked
owner.
ARTICLE 597: The taxes which, during the usufruct may be imposed
directly on the capital, shall be at the expense of the owner.
If the latter has paid them, the usufructuary shall pay
him the proper interest on the sums which may have been paid in
that character, and if the said sums have been advanced by the
usufructuary, he shall recover the amount thereof at the
termination of the usufruct.
 WHAT CHARGES OR TAXES THE USUFRUCTUARY MUST PAY:
 The usufructuary should pay for:
1. the annual charges on the fruits
2. the annual taxes on the fruits
3. annual taxes on the land.
 The SC had ruled that taxes and charges should be paid by the
usufructuary only when they can be considered as liens on the
fruits. It is a well-settled rule that real property tax, being a
burden upon the capital, should be paid by the owner of the land,
and not by a usufructuary.
ARTICLE 598: If the usufruct be constituted on the whole patrimony,
and if at the time of its constitution the owner has debts, the
provisions of Art. 758 and 759 relating to donations shall be
applied, both with respect to the maintenance of the usufruct and
to the obligation of the usufructuary to pay such debts.
The same rule shall be applied in case the owner is
obliged at the time the usufruct is constituted to make periodical
payments, even if there should be no known capital.
 This article deals with universal usufruct.
SITUATION:
 The usufruct is constituted on the whole patrimony;
 The naked owner has debts or is required to make periodic
payments
 If there is a stipulation, the usufructuary shall pay the debts but
only those debts incurred prior to the constitution of usufruct and
up to the value of the property.
  If there being no stipulation regarding the payment of
debts, the usufructuary shall be responsible only when
the usufruct has been made in fraud of the creditors.
 When the usufruct imposes upon the usufructuary the
obligation to pay the debts of the usufruct, if the clause
does not contain any declaration to the contrary, the
former is understood to be liable to pay only the debts
which appear to have been previously contracted. In no
case shall the usufructuary be responsible fro debts
exceeding the value of the property, unless the contrary
intention appears.
ARTICLE 599: The usufructuary may claim any matured credits
which from part of the usufruct if he has given or gives the proper
security. If he has been excused from giving security or has not been
able to give it, or if that given is not sufficient, he shall need the
authorization of the owner, or of the court in default thereof, to
collect such credits.
The usufructuary who has given security may use the
capital he has collected in any manner he may deem proper. The
usufructuary who has not given security shall invest the said capital
at interest upon agreement with the owner; in default of such
agreement, with judicial authorization; and, in every case, with
security sufficient to preserve the integrity of the capital in usufruct.
RULES ON USUFRUCT OF A MATURED CREDIT:
 If usufruct has given security, collection and investment
can be done without the approval of the court or of the
naked owner.
 If usufructuary has not given security, or when he is
exempted, or when there is only caucion juratoria, a
collection and investment can be done only with the
approval of the court or the naked owner.
ARTICLE 600: The usufructuary of a mortgaged immovable shall not
be obliged to pay the debt for the security of which the mortgage
was constituted.
Should the immovable be attached or sold judicially for
the payment of debt, the owner shall be liable to the usufructuary
for whatever the latter may lose by reason thereof.
ARTICLE 601: The usufructuary shall be obliged to notify the owner
of any act of a 3rd person, of which he may have knowledge, that
may be prejudicial to the rights of ownership, and he shall be liable
should he not do so, for damages, as if they had been caused thru
his own fault.
NOTIFICATION. The usufructuary should notify the owner of any
acts of 3rd person which is prejudicial to ownership if he has
knowledge. Failure to do so, he shall be liable for damages as if it is
his fault.
WHEN NOTIFICATION BY THE USUFRUCTUARY IS
REQUIRED:
1. If a 3rd party commits acts prejudicial to the rights of
ownership;
2. If urgent repairs are needed;
3. If an inventory at the beginning of the usufruct is to be
made.
ARTICLE 602: The expenses, costs, liabilities is suits brought with
regard to the usufruct shall be borne by the usufructuary.
ARTICLE 603: Usufruct is extinguished:
1. By the death if the usufructuary, unless a contrary
intention clearly appears;
2. By the expiration of the period for which it was
constituted or by the fulfilment of any resolutory
condition provided in the title creating the usufruct;
3. By merger if the usufruct and ownership in the same
person;
4. By renunciation of the usufructuary;
5. By the total loss of the thing in usufruct;
6. By the termination of the right of the person constituting
the usufruct;
7. By prescription.
 Instances of Extinguishment:
a. Death of the usufructuary except:
1. Art. 611 A usufruct constituted in favor of several
persons living at the time of its constitution shall not
be extinguished until the death of the last survivor.
2. ARTICLE 606: A usufruct granted for the time that may
elapse before a 3rd person attains a certain age, shall
subsist for the number of years specified, even if the
3rd person shou;d die before the period expires, unless
such usufruct has been expressly granted only in
consideration of the existence of such person.
b. Expiration of the period or fulfilment of any resolutory
condition;
c. Merger of the usufruct and ownership in the same person.
(Chinguen case);
d. renunciation of the usufructuary;
e. merger of the usufruct and the naked owner in one person;
f. renunciation or waiver by the usufructuary;
g. total loss of the thing in usufruct;
h. prescription; acquisition by a stranger [through acquisitive
prescription, the rights either of the usufruct or the naked
ownership;
i. annulment, rescission, mutual waiver/withdrawal;
j. in cases of parental usufruct ends when the minor child
reaches the age of majority. Automatically the parents cease
to become the usufructuary of the minor child's properties.
ARTICLE 604: If the thing given in usufruct should be lost only in
part, the right shall continue on the remaining part.
ARTICLE 605: Usufruct cannot be constituted in favor of a town,
corporation, or association for more than fifty years. If it has been
constituted, and before the expiration of such period the town is
abandoned, or the corporation or association is dissolved, the
usufruct shall be extinguished by reason thereof.
ARTICLE 606: A usufruct granted for the time that may elapse
before a 3rd person attains a certain age, shall subsist for the
number of years specified, even if the 3rd person shou;d die before
the period expires, unless such usufruct has been expressly granted
only in consideration of the existence of such person.
ARTICLE 607: If the usufruct is constituted in immovable property of
which a building forms part, and the latter should be destroyed in
any manner whatsoever, the usufructuary shall have a right to
make use of the land and the materials.
The same rule shall be applied if the usufruct is
constituted on a building only and the same should be destroyed.
But in such case, if the owner should wish to construct another
building, he shall have a right to occupy the land and to make use of
the materials, being obliged to pay to the usufructuary, during the
continuance of the usufruct, the interest upon the sum equivalent to
the value of the land and of the materials.
 Usufruct constituted over the land and the building and usufruct
constituted over the building alone.
 Usufruct constituted over both the building and the land,
and the building is destroyed before the usufruct end, With
respect to the building, the usufruct is extinguished [total
loss] but with respect to the land, the usufruct continues
over the same, and the usufructuary is even entitled to the
use of whatever materials is left of the building.
 In case of rebuilding, the naked owner wants to construct,
to rebuild, but the usufructuary refuses, The usufructuary's
 decision prevails because he has still the right to
make use of the land and the enjoyment thereof
for the remainder of the period
 If a new building is constructed with the
consent of the usufructuary, In the absence of
any agreement, the reconstruction alone of the
building does not gives rise to a continued
usufruct over the new building since the former
usufruct has been extinguished, and the same
cannot be revived by mere reconstruction. But
then the usufructuary is entitled to legal interest
for the use of the land, because the usufruct still
continues with respect to the land, for the
remainder of the period.
 If the usufruct is constituted on the building
alone, and the building is destroyed, the usufruct
over the building is extinguished but the usufruct
may still continue with respect to the land.
Although there is no usufruct over the land, you
cannot erase the fact that when the usufruct was
constituted over the building, automatically he is
entitled to the use and enjoyment of the land on
which the building has been constructed. So he
[usufructuary] has the right to continue with the
enjoyment of the land.
 The difference is that the naked owner may
construct a new building on the land with or
without the consent of the usufructuary. But the
naked owner is obliged to pay the usufructuary
interest upon the sum equivalent to the value of
the land and the materials.
ARTICLE 608: If the usufructuary shares with the owner the
insurance if the tenement given in the usufruct, the former shall, in
case of loss, continue in the enjoyment of the new building, should
one be constructed, or shall receive the interest on the insurance
indemnity if the owner does nit wish to rebuild.
Should the usufructuary have refused to contribute to
the insurance, the owner insuring the tenement alone, the latter
shall receive the full amount of the insurance indemnity in case of
loss, saving always the right granted to the usufructuary in the
preceding article.
ABSENCE OF SHARING OF INSURANCE PREMIUM:
 Building alone:
1. Naked owner is entitled to the full proceeds
of the insurance indemnity.
2. Naked owner may rebuild w/ or w/o consent
of usufructuary.
3. No usufruct over the new building, but
usufructuary is entitled to interest on the
value of the land and materials.
 Building and land:
1. usufruct continues with respect to the land
and materials;
2. Naked owner cannot rebuild over the
objection of the usufructuary.
3. if naked owner rebuilds w/ or w/o consent of
usufructuary, there is no usufruct over the
new building but he is liable to pay the
usufructuary over the land and materials.
 SHARING OF INSURANCE PREMIUM
[in case of REBUILDING]:
 Building alone:
1. usufruct as to the new building continues;
2. if the naked owner wants to rebuild and the
usufructuary objects, the naked owner prevails bec.
there is no usufruct over the land;
 Building and land:
1. usufruct as to the new building continues;
2. if the naked owner wants to rebuild and the
usufructuary objects, the naked owner prevails bec.
there is no usufruct over the land;
[in case of NO REBUILDING]:
 Building alone:
1. Naked owner receives the proceeds of the insurance
but should pay the usufructuary interest for the
remainder of the period.
 Building and land:
1. Naked owner receives the proceeds of the insurance
but usufruct continues over the land and the materials
left.
2. Naked owner gets the proceeds of the insurance, but
should pay the usufructuary interest.
ARTICLE 609: Should the thing in usufruct be expropriated for public
use, the owner shall be obliged either to replace it with another
thing of the same value and if similar conditions, or to pay the
usufructuary the legal interest on the amount if the indemnity fir
the whole period of the usufruct. If the owner chooses the latter
alternative, he shall give security for the payment of the interest.
 Rules in Cases of Expropriation
1. if the naked owner ALONE was given the indemnity, he
has the option to:
a. replace the expropriated thing w/ an
equivalent thing
b. pay the usufructuary legal interest on the
indemnity. But this option requires that
the naked owner give security for the
payment of the interest
2. If BOTH the naked owner and the usufructuary were
separately given indemnity:
 each owns the indemnity given to him
 the usufruct being extinguished
3. If the usufructuary ALONE was given indemnity:
a. he must give it to the naked owner and
compel the naked owner to pay him
interest or replace the property
b. he may even deduct the interest himself – if
the naked owner fails to object.
ARTICLE 610: A usufruct is not extinguished by bad use if the thing
in usufruct; but if the abuse should cause considerable injury to the
owner, the latter may demand that the thing be delivered to him,
binding himself to pay annually to the usufructuary the net
proceeds of the same, after deducting the expenses and the
compensation which may be allowed him for its administration.
- Effects of Bad Use:
1. If it does Not cause considerable injury to naked owner:
a. the usufruct continues
b. the naked owner cannot demand administration by
himself
2. If it causes considerable injury to the naked owner:
a. the usufruct continues;
b. the naked owner can demand deliver to him or
administration by him;
c. but naked owner is obliged to pay the net proceeds to
usufructuary;
d. naked owner gets the administration fee and expenses.
ARTICLE 611: A usufruct constituted in favor of several persons
living at the time of its constitution shall not be extinguished until
the death of the last survivor.
Rules in Case of Multiple Usufruct
a. If constituted simultaneously – the death of the
last survivor terminates the usufruct;
b. If constituted successively – the death of the last
survivor terminates the usufruct.
ARTICLE 612: Upon the termination of the usufruct, the thing in
usufruct shall be delivered to the owner, without prejudice to the
right of retention pertaining to the usufructuary or his heirs for
taxes and extraordinary expenses which should be reimbursed.
After the delivery had been made, the security or mortgage shall be
cancelled.
Rights and Obligations at the Termination of the USUFRUCT
1. Usufructuary
a. must return the property to the naked owner
b. but he has rights:
a. To retain the property until he has been
reimbursed for the taxes on capital advanced
by him and/or for the extraordinary repairs
and expenses – insofar as there has been an
increase in the value.
b. To remove improvements or to set-off
against the damage.
2. Naked Owner Must:
a. cancel the security or mortgage provided the
usufructuary has complied with his
obligations;
b. in case of rural leases, respect the leases
made by the usufructuary until the end of
the agricultural year;
c. make reimbursements to the usufructuary in
the proper cases.
EASEMENTS
- There are two (2) general kinds of easements under the
first 2 provisions. Easement and servitude under the civil
code—they are one and the same. There is a difference
with respect to common law civil law but that’s not our
concern.
DIFFERENT KINDS OF EASEMENT
ARTICLE 613: An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable belonging
to a different owner.
The immovable in favor of which the easement is
established is called the dominant estate; that which is subject
thereto, the servient estate.
- It is an encumbrance imposed on an immovable.
- There is no easement imposed upon immovables
belonging to the same person.
- The dominant estate and the servient estate are owned
by different persons.
- The term immovables must be construed in its common
and not legal sense.
- Two estates involved:
o The servient estate, which is burdened by the
easement;
o The dominant estate, which is the one
benefited as a result of an easement.
- If the beneficiary is a community or one or more
persons, the easement is called personal easement, if
the beneficiary is another immovable it is called a real
easement.
CHARACTERISTICS
1. Real right;
2. Imposable only in another's property and never in one own's
property;
3. It is a form of limitation of ownership. [Why: because it imposes a
restriction in the enjoyment of one's property.. if you are the
owner of a property, a land for example and it is burdened by a
road right of way, it is in effect a limitation on the enjoyment of
your property because you will be allowing somebody else to be
passing on your property. It is a form of limitation because your
enjoyment of your property is no longer exclusive.]
4. It is inseparable and indivisible, meaning it cannot be separated
from the immovable on which it is attached. It cannot be sold
separately from the property;
5. It is intransmissible as a general rule, unless the tenement
affected is also transmitted or alienated;
6. It is perpetual until extinguished.
ARTICLE 613
BORBAJO vs. HIDDEN VIEW
HOMEOWNERS INC. ET AL.
GR No. 152440. January 31, 2005
The dominant estate cannot be the servient estate at the same
time. One of the characteristics of an easement is that it can be
imposed only on the property of another, never on one’s own
property. An easement can exist only when the servient and the
dominant estates belong to different owners.
FACTS
Jose C. BONTUYAN together with Lucy, Georgina, Helen and Vicente
Solon, Jr. (the SOLONs) were the registered owners of a parcel of agricultural
land, covering an area of 13,910 sq. m. situated at Barangay Bacayan, Cebu
City. In 1991, at the instance of BONTUYAN, the property was surveyed to
convert it into a subdivision. Later, the corresponding subdivision plan, which
showed 3 road lots was submitted to the Cebu Office of the DENR. The DENR
thereafter, approved the subdivision plan. Meanwhile, BONTUYAN, in his
own behalf and as attorney-in-fact of the SOLONs and following the
subdivision scheme in the plan, sold the resulting lots to different individuals,
as evidenced by the Deed of Absolute Sale.
Among the lots sold are the ones which later became the subject of
this case, the three (3) road lots. The road lots were sold to petitioner
FELICITACION B. BORBAJO and Prescillana B. Bongo (Bongo). However, they
obtained the titles to the lots more than a month later on 30 July 1991.
Using the advance payments of his lot purchasers, BONTUYAN
proceeded to develop a subdivision which was later named Hidden View
Subdivision I by its residents and homeowners. Later, he applied for and
secured from the Housing and Land Use Regulatory Board (HLURB) a License
to Sell.
BORBAJO also decided to develop into a subdivision the other
properties adjacent to Hidden View Subdivision I which she acquired. Thus,
she applied for and received SSA 674-5-94 issued by the Cebu City Planning
and Development Department covering the adjacent land to be subdivided
into 23 lots. She named this new subdivision ST Ville Properties. In 1994, she
secured Certificate of Registration for the ST Ville Properties project and a
License to Sell the same from the HLURB. She also secured a Certificate of
Registration dated for another subdivision project called Hidden View
Subdivision II from the HLURB, with the corresponding License to Sell issued
for it. The two new subdivision projects were located at the back of Hidden
View Subdivision I.
The residents and homeowners of Hidden View Subdivision I heard
reports to the effect that BORBAJO had purchased the entire subdivision
from BONTUYAN through an oral agreement. They also heard that they have
no right to use the road lots, since the lots have already been registered in
BORBAJO’s name. As a consequence, the Hidden View Homeowners, Inc.
invited BORBAJO to a meeting. When confronted by the homeowners about
her claim that she had bought the subdivision from BONTUYAN, BORBAJO
confirmed her claim of ownership over the subdivision and the road lots. She
also told them that they have “no right regarding the road right-of-way.”
In 1997, the homeowners caused the construction of a guardhouse at
the entrance of Hidden View Subdivision I and hired the services of a security
guard to prevent unauthorized persons and construction vehicles from
passing through their subdivision. The measures adversely affected
the residents of the subdivisions at the back, as well as BORBAJO
herself since her delivery trucks and heavy equipment used in the
construction of her housing projects then on-going had been
effectively prevented from passing through the road lots.
Then, BORBAJO filed before the RTC of Cebu City an action
for damages and injunction against respondents HIDDEN VIEW
HOMEOWNERS, INC. ET AL for the latter’s acts of preventing her
delivery trucks and other construction vehicles, and her
construction workers, from passing through the road lots.
The trial court ruled in favor of BORBAJO. On appeal
however by HIDDEN VIEW HOMEOWNERS INC. ET AL with the
Court of Appeals, the decision of the RC was reversed for lack of
legal and factual bases. It held that BORBAJO had not complied
with the requisites of a compulsory easement of right-of-way and
pointed out the general rule that mere convenience for the
dominant estate is not what is required by law as the basis for
setting up a compulsory easement.
Hence, this appeal by BORBAJO. BORBAJO contended that
she was entitled to the injunctive relief considering that she was
the registered owner of the road lots in question and hence, she
had a right in esse which deserves legal protection.
On the other hand, HIDDEN VIEW HOMEOWNERS INC. ET AL.
contended that BORBAJO fraudulently obtained her titles to the
road lots through a falsified deed of sale which was the document
presented to the Office of the Register of Deeds. They also averred
that notwithstanding the registration of the subject road in
BORBAJO’s name, her title thereto was tainted by the discovery of
fraud she allegedly perpetrated in securing the questioned titles.
ISSUE
Whether or not HIDDEN VIEW HOMEOWNERS INC. ET AL. had
the right to close the road.
RULING
NO, they did not have the right to do so.
As a registered co-owner of the road lots, BORBAJO is
entitled to avail of all the attributes of ownership under the Civil
Code–jus utendi, fruendi, abutendi, disponendi et vindicandi. Article
428 of the New Civil Code is explicit that the owner has the right to
enjoy and dispose of a thing, without other limitations than those
established by law. A co-owner, such as BORBAJO, is entitled to use
the property owned in common under Article 486 of the Civil Code.
Therefore, respondents cannot close the road lots to prevent
BORBAJO from using the same.
As to the alleged perpetration of BORBAJO in securing the
questioned titles, the court upheld the efficiency value of said titles
for purposes of the present petition, without prejudice to any
future determination by appropriate forum on the legality of
BORBAJO’s titles over the road lots. Verily, a separate case for
annulment of titles over the road lots was then pending before the
court. There were serious allegations that the issuance of the TCTs
over the road lots was tainted with fraud as evidenced by
alterations made on the face of the certificates and discrepancies in
the records of the contract of absolute sale filed before the Office
of the Register of Deeds and the Notarial Division of the RTC of
Cebu City. If the court finds that the titles of BORBAJO were
obtained fraudulently, her right to the road lots ceases as well as
her right-of-way by virtue of said titles.
In the meantime, however, we are bound by the value in law
and the evidentiary weight of the titles in the name of BORBAJO. As
long as the titles are not annulled, BORBAJO remains registered a
co-owner and therefore her right to use the road lots subsists.
Likewise, with BORBAJO as a registered co-owner of the road
lots, it is utterly pointless to discuss whether she is entitled to the
easement of right of way. Both from the text of Article 649 of the
Civil Code and the perspective of elementary common sense, the
dominant estate cannot be the servient estate at the same time.
One of the characteristics of an easement is that it can be imposed
only on the property of another, never on one’s own property. An
easement can exist only when the servient and the dominant
estates belong to different owners.
BORBAJO, being a registered co-owner of the 3 road lots, is entitled to
the injunctive relief.
ARTICLE 614: Servitudes may also established for the benefit of a
community, or of one or more persons to whom encumbered estate
does not belong.
Personal easement – only the servient estate is involved
ARTICLE 615: Easements may be continuous or discontinuous,
apparent or non-apparent.
Continuous easements are those the use of which are or
may be incessant, without the intervention of any act of man.
Discontinuous easements are those which are used at
intervals and depend upon the acts of man.
Apparent easements are those which are made known
and are continually kept in view by external signs that reveal the
use and enjoyment of the same.
Non-apparent easements are those which show no
external indication of their existence.
CLASSIFICATION OF EASEMENT
I. Accdg. to the Manner by which they are exercised:
a. Continuous: the use or exercise of the easment is or
may be incessant [Incessant meaning unceasing or
without any interruption], or without the intervention
of any act of man.
EXAMPLE:
Easement of drainage OR Easement of aqueduct. The fact that water flows
into the drainage system signifies usage of the drainage. But it does not
mean that if there is no water that flows into the drainage system it is not
continuous.
b. Discontinuous: those that are used at intervals and
depend upon the acts of man.
Example:
Easement of right of way because it can be exercised only when a man passes
or puts his feet on somebody else's property.
II. According to EXISTENCE (according to whether or not their existence is
indicated)
1. APPARENT: are those which are made known and are continually kept in
view by external signs that reveal the use and enjoyment of the same. There
are signs that indicate the use and enjoyment of the easements.
Examples: a dam, a window in a party wall, a road right of way if there is an
alley or a permanent path.
2. NON APPARENT: opposite of apparent easements. They show no
indication or apparent sign or indication of their existence.
Example: negative easements like easement of not building more than a
certain height, it may be a right of way if there is no visible path or alley.
ARTICLE 616: Easements are also positive or negative.
A positive easement is one which imposes upon the
owner of the servient estate the obligation of allowing something to
be done or of doing it himself, and a negative easement, that which
prohibits the owner of the servient estate from doing something
which he could lawfully do if the easement did not exist.
III. According to PURPOSE or the nature of the limitation:
1. POSITIVE: this is also known as servitude of sufferance. In positive
easements, the owner of the servient estate allows something to be done on
his property or to do something himself on his property.
Ex: the duty to cut of the branches of his tree that extend to another's
property. Under the law, he has the duty to cut off the branches in so far as
they extend to another's property. That is a positive easement because the
law obliges you to cut them off.

2. NEGATIVE: The owner of a servient estate is prohibited from
doing something which he could lawfully do where it not for the
existence of the easement.
Example: Easements of light and view or openings made in one's
own wall.
- How to acquire a negative easement? BY notarial
prohibition.
- The easement is acquired 10 years from the date of
notarial prohibition.
IV. ACCORDING TO SOURCE OR ORIGIN
1. voluntary – when the parties agree to create an
easement;
2. mixed – when partly by agreement and partly by law;
3. legal – when constituted by law
ARTICLE 617: Easements are inseparable from the estate to which
they actively or passively belong.
Consequences of inseparability of easements
1. Easement cannot be sold or donated or mortgaged
independently of the real property.
2. Registration of the dominant estate under the Torrens
system without the registration of the voluntary
easement in its favor, does not extinguish the easement;
but registration of the servient estate w/o the
registration of the easements burdening it extinguishes
said voluntary easements
CASE OF PURGANAN V PAREDES
Purganan owns the servient estate; Paredes owns the dominant
estate. There was an annotation in the title of the servient estate
that Paredes has an easement of drainage. Since there was an
annotation, the buyer has to recognize the easement
SOLID MANILA CORP. vs. BIO HONG TRAD.
GR No. 90596. April 8, 1991.
The sale of the property in favor of BIO HONG did
include the alley because it cannot be separated from
the tenement and maintain an independent existence.
Servitudes are merely accessories to the tenements of
which they form part. Although they are possessed of a
separate juridical existence, as mere accessories, they
cannot, however, be alienated from the tenement, or
mortgaged separately.
FACTS
Petitioner MANILA SOLID MANILA CORP. was the registered
owner of a parcel of land located in Ermita, Manila. The same lies
near another parcel of land, registered in the name of private
respondent BIO HONG TRADING CO., INC.
BIO HONG's title came from a prior owner and in their deed of
sale, the parties thereto reserved as an easement of way the
following: (1) 914 sq. m. of which was converted into a private alley
for the benefit of neighboring estates and (2) 179 sq. m. had
actually been expropriate, and developed by the City Government
pursuant to the beautification drive of the Metro Manila Governor.
As a consequence, an annotation was entered in BIO HONG's
title concerning the construction of a private alley from Concepcion
Street to the interior of the aforesaid property with the plan and
specification duly approved by the City Engineer subject to several
conditions. One of the conditions was that the owner of the lot on
which the alley has been constructed shall allow the public to use
the same.
SOLID MANILA claimed that ever since, it and as well as other residents
of neighboring estates, had made use of the above private alley and
maintained and contributed to its upkeep, until sometime in 1983, when, and
over its protests, BIO HONG constructed steel gates that precluded
unhampered use. Hence, in 1984, SOLID MANILA commenced suit for
injunction against BIO HONG, to have the gates removed and to allow full
access to the easement.
The court a quo shortly issued ex parte an order directing BIO HONG to
open the gates. Later, the trial court rendered judgment against BIO HONG.
Thereafter, BIO HONG appealed to the respondent COURT OF APPEALS,
which reversed the trial court decision. In favoring BIO HONG, it held that an
easement is a mere limitation on ownership and that it does not impair BIO
HONG's title, and that since BIO HONG had acquired title to the property,
"merger" brought about an extinguishment of the easement.
Hence, this appeal by SOLID MANILA. The corporation submitted that
the very deed of sale executed between BIO HONG and the previous owner
of the property "excluded" the alley in question, and that in any event, the
intent of the parties was to retain the "alley" as an easement
notwithstanding the sale.
ISSUES
(1) Whether or not the alley in question was excluded from the sale of
the property to BIO HONG.
(2) Whether or not there was a merger in the person of BIO HONG.
[applicable to Articles 614 and 631]
RULING
(1) No, it was not excluded. The sale of the property in favor of BIO
HONG did include the alley because it cannot be separated from the
tenement and maintain an independent existence. Article 617 states that
“Easements are inseparable from the estate to which they actively or
passively belong.”
Servitudes are merely accessories to the tenements of which they form
part. Although they are possessed of a separate juridical existence, as mere
accessories, they cannot, however, be alienated from the tenement, or
mortgaged separately.
The fact, however, that the alley in question, as an easement, is
inseparable from the main lot is no argument to defeat SOLID MANILA's
claims, because as an easement precisely, it operates as a limitation on the
title of the owner of the servient estate, specifically, his right to use (jus
utendi).
As SOLID MANILA indeed hastens to point out, the deed itself stipulated
that a portion thereof of the tenement measuring 914 sq. m. had been
converted into a private alley for the benefit of the neighboring estates.
Precisely because of this, the former owner, in conveying the property, gave
the BIO HONG a discount on account of the easement, that the purchase
price was lowered from P3,790,440 to P3,503,240.
Hence, and so we reiterate, albeit BIO HONG did acquire ownership
over the property-including the disputed alley-as a result of the conveyance,
it did not acquire the right to close that alley or otherwise put up
obstructions thereon and thus prevent the public from using it, because as a
servitude, the alley is supposed to be open to the public.
(2) NO, there was no genuine merger that took place as a consequence
of the sale in favor of BIO HONG. Under Article 631 of the Civil Code, a
merger exists when ownership of the dominant and servient estates is
consolidated in the same person. Merger then, as can be seen, requires full
ownership of both estates.
One thing ought to be noted here, however. The servitude in question is
a personal servitude, that is to say, one constituted not in favor of a
particular tenement (a real servitude) but rather, for the benefit of the
general public.
Personal servitudes are referred to in Article 614 of the Civil Code,
which states that “Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered estate does
not belong.”
In a personal servitude, there is therefore no "owner of a dominant
tenement" to speak of, and the easement pertains to persons without a
dominant estate, in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-
dominant owner relationship, and the termination of that relation leaves the
easement of no use. Unless the owner conveys the property in favor of the
public – if that is possible – no genuine merger can take place that would
terminate a personal easement.

ARTICLE 618: Easements are indivisible. If the servient estate is
divided between two or more persons, the easement is not
modified, and each of them must bear it on the part which
corresponds to him.
If it is the dominant estate that is divided between two
or more persons, each of the may use the easement in its entirety,
without changing the place of its use, or making it more
burdensome in any other way.
How are easement established?
ARTICLE 619: Easements are established either by or by the will of
the owners. The former are called legal and the latter voluntary
easement.
SPOUSES DE LA CRUZ vs. RAMISCAL
GR No. 137882. February 04, 2005
Voluntary easements are established by the will of the
owners. In the present case, it was not proven that
RAMISCAL, the owner, voluntarily granted a right of way
in favor of the SPOUSES DE LA CRUZ.
FACTS
Respondent OLGA RAMISCAL was the registered owner of a
parcel of land located at the corner of 18th Avenue and Boni
Serrano Avenue, Murphy, Quezon City. Petitioner SPOUSES
ELIZABETH and ALFREDO DE LA CRUZ were occupants of a parcel of
land, with an area of 85 sq. m., located at the back of RAMISCAL’s
property, which was registered in the name of Concepcion de la
Peña, mother of petitioner ALFREDO DE LA CRUZ.
RAMISCAL owned a 1.10-meter wide by 12.60-meter long
strip of land, which was being used by the SPOUSES DE LA CRUZ as
their pathway to and from 18th Avenue, the nearest public highway
from their property. SPOUSES DE LA CRUZ had enclosed the same
with a gate, fence, and roof.
In 1976, RAMISCAL leased her property, including the
building thereon, to Phil. Orient Motors, which also owned a
property adjacent to that of RAMISCAL’s. In 1995, Phil. Orient
Motors sold its property to San Benito Realty. After the sale, Engr.
Rafael Madrid prepared a relocation survey and location plan for
both contiguous properties of RAMISCAL and San Benito Realty. It
was only then that RAMISCAL discovered that the aforementioned
pathway being occupied by SPOUSES DE LA CRUZ was part of her
property.
Immediately, RAMISCAL through a letter, demanded that
SPOUSES DE LA CRUZ demolish the structure constructed by them
on said pathway without her knowledge and consent. However,
the letter was unheeded by the SPOUSES DE LA CRUZ. RAMISCAL
the former referred the matter to the Barangay for conciliation
proceedings, but the parties arrived at no settlement.
Hence, RAMISCAL filed a complaint with the RTC for the
demolition of the structure allegedly illegally constructed by
SPOUSES DE LA CRUZ on her property. RAMISCAL asserted that
SPOUSES DE LA CRUZ had an existing right of way to a public
highway other than the current one they were using, which she
owns.
On the other hand, SPOUSES DE LA CRUZ admitted having
used a 1.10-meter wide by 12.60-meter long strip of land on the
northern side of RAMISCAL’s property as their pathway to and from
18th Avenue, the nearest public highway from their property, but
claimed that such use was with the knowledge of RAMISCAL.
The SPOUSES DE LA CRUZ averred that they were made to
sign a document stating that they waived their right to ask for an
easement along the eastern side of RAMISCAL’s property towards
Boni Serrano Avenue, which document was among those submitted
in the application for a building permit by a certain “Mang Puling,”
the person in charge of the construction of the motor shop. That
was why, according to SPOUSES DE LA CRUZ, the perimeter wall on
RAMISCAL’s property was constructed at a distance of 1.10-meters
offset and away from RAMISCAL’s property line to provide a
passageway for them to and from 18th Avenue. They maintained in
that RAMISCAL knew all along of the 1.10-meter pathway and had, in fact,
tolerated their use thereof.
In 1997, the RTC ruled in favor of RAMISCAL. The appeal of the
SPOUSES DE LA CRUZ with the Court of Appeals was also dismissed. Hence,
this petition for review.
ISSUE
Whether or not RAMISCAL voluntarily accorded SPOUSES DE LA CRUZ to
an easement of right of way.
RULING
NO, RAMISCAL did not accord SPOUSES DE LA CRUZ a right of way.
Under Article 619 of the Civil Code, “Easements are established either by law
or by the will of the owners. The former are called legal and the latter
voluntary easements.” RAMISCAL did not make a voluntary easement in
favor of SPOUSES DE LA CRUZ.
The SPOUSES DE LA CRUZ failed to show by competent evidence other
than their bare claim that they and their tenants, spouses Manuel and Cecilia
Bondoc and Carmelino Masangkay, entered into an agreement with
RAMISCAL, through her foreman, Mang Puling, to use the pathway to 18 th
Avenue, which would be reciprocated with an equivalent 1.50-meter wide
easement by the owner of another adjacent estate. The Court did not give
credence to such’ self-serving claim that such right of way was voluntarily
given them by RAMISCAL for the following reasons:
First, SPOUSES DE LA CRUZ were unable to produce any shred of
document evidencing such agreement. The Civil Code is clear that any
transaction involving the sale or disposition of real property must be in
writing. Thus, the dearth of corroborative evidence opens doubts on the
veracity of the naked assertion of SPOUSES DE LA CRUZ that indeed the
subject easement of right of way was a voluntary grant from RAMISCAL.
Second, as admitted by the SPOUSES DE LA CRUZ, it was only the
foreman, Mang Puling, who talked with them regarding said pathway on the
northern side of RAMISCAL’s property. Thus, petitioner Elizabeth de la Cruz
testified that she did not talk to RAMISCAL regarding the arrangement
proposed to them by Mang Puling despite the fact that she often saw
RAMISCAL. It is, therefore, foolhardy for SPOUSES DE LA CRUZ to believe that
the alleged foreman of RAMISCAL had the authority to bind the RAMISCAL
relating to the easement of right of way.
Third, their explanation that said Mang Puling submitted said
agreement to the Quezon City Engineer’s Office, in connection with the
application for a building permit but said office could no longer produce a
copy thereof, does not inspire belief. As correctly pointed out by the trial
court, SPOUSES DE LA CRUZ should have requested a subpoena duces tecum
from said court to compel the Quezon City Engineer’s Office to produce said
document or to prove that such document is indeed not available.
The fact that the perimeter wall of the building on RAMISCAL’s property
was constructed at a distance of 1.10 meters away from the property line,
does not by itself bolster the veracity of SPOUSES DE LA CRUZ’ story that
there was indeed such an agreement. Further, as noted by the trial court, it
was Atty. Federico R. Onandia, counsel of Phil. Orient Motors, who wrote
SPOUSES DE LA CRUZ on 25 August 1994 advising them that his client would
close the pathway along 18th Avenue, thereby implying that it was Phil. Orient
Motors, RAMISCAL’s lessee, which tolerated SPOUSES DE LA CRUZ’ use of
said pathway.
MODES OF ACQUIRING EASEMENT
ARTICLE 620: Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten years.
Modes of acquiring easements:
1. Continuous and apparent easements are acquired either by virtue
of a title or by prescription of ten years. Good faith or bad faith is
insignificant
2. Title here means any kind of juridical act or law sufficient to
create the encumbrance. Example: contract, donation,
testamentary succession
RONQUILLO vs. ROCO
GR No. L-10619. February 28, 1958

The easement of right of way may not be acquired
through prescription.
(NOTE: under Art. 620 of the Civil Code, continuous and
apparent easements may be already acquired by virtue
of prescription of 10 years)
FACTS
Petitioners LHOGARIO RONQUILLO, ET AL., had been in the
continuous and uninterrupted use of a road or passage way in
going to Igualdad Street and the market place of Naga City, from
their residential land and back, for more than 20 years. Said road or
passage way traversed the land of VICENTE ROCO Y DOMINGUEZ,
ET AL.
The DEFENDANTS, who were the successors-in-interest of the
late VICENTE ROCO, together with the latter’s tenants had long
recognized and respected the private legal easement of road right
of way of RONQUILLO, ET AL. However, in 1953, respondent JOSE
ROCO thru his co-respondent RAYMUNDO MARTINEZ and their
men with malice and with a view to obstructing the RONQUILLO, ET
AL.'s private legal easement over the property of the late VICENTE
ROCO, started constructing a chapel in the middle of the said right
of way construction. The construction actually impeded, obstructed
and disturbed the continuous exercise of the rights of the
RONQUILLO, ET AL. over said right of way
In 1954, respondent NATIVIDAD ROCO and GREGORIO MIRAS,
JR. with the approval of JOSE ROCO and with the help of their men
and laborers, by means of force, intimidation, and threats, illegally
and violently planted wooden posts, fenced with barbed wire and
closed hermitically the road passage way and their right of way in
question against their protests and opposition of RONQUILLO, ET
AL. The latter were thereby prevented from going to or coming
from their homes Igualdad Street and the public market of the City
of Naga.
RONQUILLO, ET AL. then filed a complaint with the CFI. But
the said complaint was dismissed.
Hence, this appeal. RONQUILLO, ET AL. alleged that they had
acquired the easement of right of way over the land of the
DEFENDANTS and the latter's predecessors in interest, the late
VICENTE ROCO, through prescription by their continuous and
uninterrupted use of a narrow strip of land of the ROCO as passage
way or road in going to Igualdad Street and the public market of
Naga City, from their residential land or houses, and return for a
period of 20 years.
ISSUE
Whether RONQUILLO, ET. AL. had acquired the easement of
right of way through prescription.
RULING
NO, they have not acquired the easement of right of way
through prescription.
An easement of right of way though it may be apparent is,
nevertheless, discontinuous or intermittent and, therefore, cannot
be acquired through prescription, but only by virtue of a title.
Under the Old as well as the New Civil Code, easements may be
continuous or discontinuous (intermittent),apparent or non-
apparent, discontinuous being those used at more or less long
intervals and which depend upon acts of man (then Articles 532
and 615 of the Old and New Civil Codes, respectively). Continuous
and apparent easements are acquired either by title or
prescription, continuous non-apparent easements and
discontinuous ones whether apparent or not, may be acquired only
by virtue of a title (then Articles 537 and 539, and 620 and 622 of
the Old and New Civil Codes, respectively).
Both Manresa and Sanchez Roman are of the opinion that the
easement of right of way is a discontinuous one. Under the
provisions of the Civil Code, old and new, particularly the articles
thereof aforecited, it would therefore appear that the easement of
right of way may not be acquired through prescription. Even Article
1959 of the Old Civil Code providing for prescription of ownership
and other real rights in real property, excludes therefrom the
exception established by Article 622 (then Article 539), referring to
discontinuous, easements, such as, easement of right of way.
It is evident, therefore, that no vested right by user from time
immemorial had been acquired by RONQUILLO, ET AL. at the time the Civil
Code took effect. Under Article 622 of the Code, (then Article 539) no
discontinuous easement could be acquired by prescription in any event.
However, in the case of Municipality of Dumangas vs. Bishop of Jaro,
this same Tribunal held that the continued use by the public of a path over
land adjoining the Catholic church in going to and from said ,Church through
its side door, has given the church the right to such use by prescription, and
that because of said use by the public, an easement of right of way over said
land has been acquired by prescription, not only by the church, but also by
the public, which without objection or protest on the part of the owner of
said land, had continually availed itself of the easement.
The minority of which the writer of this opinion is a part, believes that
the easement of right of way may now be acquired through prescription, at
least since the introduction into this jurisdiction of the special law on
prescription through the Old Code of Civil Procedure, Act No. 190. Said law,
Particularly, Section' 41 thereof, makes no distinction as to the real rights
which are subject to Prescription, and there would appear to be no valid
reason, at least to the writer of this opinion, why the continued use of a path
or a road or right of way by the party, specially by the public, for 10 or more,
not by mere tolerance of the owner of the land, but through adverse use of
it, cannot give said party a vested right to such right of way through
prescription.
However, the opinion of the majority must prevail, and it is held that
under the present law, particularly, the provisions of the Civil Code, old and
new, unless and until the same is changed or clarified, the easement of right
of way may not be acquired through prescription.
Note: Today, under Art. 620 of the Civil Code, continuous and
apparent easements may be already acquired by virtue of
prescription of 10 years.
ARTICLE 621: In order to acquire by prescription the easements
referred to in the preceding article, the time of possession shall be
computed thus: in positive easements, from the day on which the
owner of the dominant estate, or the person who may have made
use of the easement, commenced to exercise it upon the servient
estate; and in negative easements, from the day on which the
owner of the dominant estate forbade, by an instrument
acknowledged before a notary public, the owner of the servient
estate, from executing an act which would be lawful without the
easement.
- Only continuous and apparent can be acquired by prescription. A
continuous and apparent easement may be negative or positive.
- Rules:
1. If the easement is positive begin counting the period from the day
the dominant estate began to exercise it.
Example:
A window in a partywall, from the day the opening or window was
built.
2. If negative, from the time NOTARIAL PROHIBITION was made on
the SERVIENT ESTATE.
3. Who makes the notarial prohibition or who should commence the
exercise of the easement? The dominant estate, thru its owner or
usufructuary or possessor or legal representative
Example:
A and B are neighbors. On his bldg’s wall, A opened a window beneath the
ceiling joists to admit light in 2002. Even after 10 years (2012), B may still
obstruct the light by constructing on his own lot a building higher that A’s
unless A makes a Notarial Prohibition prohibiting B from making the
obstruction. If in 2002, A makes the prohibition, may B still make the
obstruction in 2009?
Ans: Yes, because it is only in 2012 (10 yrs after the notarial prohibition)
when A may be said to have acquired this NEGATIVE easement of light and
view. If after 2012, B may no longer obstruct.
Bar Questions:
- Is the easement of light and view positive or negative? Ans. It
depends:
 - If made on one’s own wall and the wall does not extend
over the neighbor’s land, easement is negative. To
create an easement, a prohibition is required.
- If made on one’s own which extends over the
neighboring land or if made on a partywall, the
easement is created because of an act of SUFFERANCE
or ALLOWANCE, thus the easement is positive.
- May the Easement of Right of Way be acquired by
Prescription? No, because it is discontinuous or
intermittent.
CID vs. JAVIER, ET AL.
GR No. L-14116. June 30, 1960
Negative easements can not be acquired by less formal
means. Hence, the requirement that the prohibition (the
equivalent of the act of invasion) should be by "a formal
act", "an instrument acknowledged before a notary
public."
FACTS
Respondents IRENE P. JAVIER, ET AL., were registered owners
of a building standing on their lot with windows overlooking the
adjacent lot owned and registered in the name of petitioner
LAUREANA A. CID. In a case between the two parties, JAVIER, ET
AL. contended that they had acquired by prescription an
enforceable easement the view and light arising from a verbal
prohibition made by CID’s predecessor-in-interest to obstruct such
view and light, as owner of the adjoining lot.
The windows in question were admittedly in JAVIER, ET AL.’s
own building erected on their own lot. The easement, if there was
any, was therefore a negative one. Under the then Article 538 (now
Art. 621), “In order to acquire by prescription the easements..., the
time of the possession shall be computed,… in negative easements,
from the day on which the owner of the dominant estate has, by a
formal act, forbidden the owner of the servient estate to perform
any act which would be lawful without the easement."”
As may be seen, the only question hinges on the
interpretation of the phrase "a formal act". The lower court and
the Court of Appeals considered any prohibition made by the
owner of the dominant estate, be it oral or written, sufficient
compliance with the law. Both courts so declared that JAVIER, ET
AL. did acquire such easement.
Hence, this appeal by CID.
ISSUE
Whether or not “a formal act” contemplated by law may be
either written or verbal.
RULING
Neither. The “formal act” contemplated by law is not one that
is merely written but that which is notarized.
The law is explicit. It requires not any form of prohibition, but
exacts, in a parenthetical expression, for emphasis, the doing not
only of a specific, particular act, but a formal act.
"Formal – or pertaining to form, characterized by one due
form or order, done in due form or with a solemnity regular;
relating to matters of form."
"Act – In civil law, a writing which states in legal form that a
thing has been done, said or agreed.”
From these definitions, it would appear that the phrase
"formal act" would require not merely any writing, but one
executed in due form and/or with solemnity. That this is the
intendment of the law although not expressed in exact language is
the reason for the clarification made in Article 621 of the New Civil
Code, which specifically requires the prohibition to be in "an
instrument acknowledged before a notary public". This is as it
should be.
Easements are in the nature of an encumbrance on the
servient estate. They constitute a limitation of the dominical right
of the owner of the subjected property. Hence, they can be
acquired only by title and by prescription, in the case of positive
easement, only as a result of some sort of invasion, apparent and
continuous, of the servient estate. By the same token, negative easements
can not be acquired by less formal means. Hence, the requirement that the
prohibition (the equivalent of the act of invasion) should be by "a formal act",
"an instrument acknowledged before a notary public."
The Court of Appeals found as undisputed the fact CID' lot (dominant)
as well as JAVIER, ET AL.'s lot (servient) were covered by OCTs respectively,
both issued by the Register of Deeds of Ilocos Norte, in pursuance of the
decrees of registration issued in 1937, in Cadastral Case No. 51 of Laoag,
Ilocos Norte. In the certified copies of these certificates of title, no
annotation appeared with respect to the easement supposedly acquired by
prescription which, counting the 20 years from 1913 or 1914, would have
already ripened by 1937, date of the decrees of registration. Consequently,
even conceding arguendo that such an easement had been acquired, it had
been cut off or extinguished by the registration of the servient estate under
the Torrens System without the easement being annotated on the
corresponding certificate of title, pursuant to Section 39 of the Land
Registration Act.
ARTICLE 622: Continuous and non-apparent easements, and
discontinuous ones, whether apparent or not may be acquired only
by virtue of title.
Example: A RRW is a discontinuous easement although it may be said to be
apparent if there is a path or alley or any sign that would indicate its
existence. But since it is discontinuous, it cannot be acquired by prescription.
VELASCO vs. HON. CUSI
GR No. L-33507. July 20, 1981
Whether the mode of acquisition of the easement that Bolton
Street is, would be only by virtue of title was not material. It
remained as such legal encumbrance, as effectively as if it had
been duly noted on the certificate of title, by virtue of the clear
and express provision of Section 39 of Act 496, it being admitted
that at the time of the registration of Lot 77, the public highway
was already in existence or subsisting.
FACTS
Petitioner FE VELASCO alleged when she bought Lot 77-B2 from the
original owner in 1956. Then, Bolton Street was already existing. Without
ascertaining the monuments along Bolton Street, she had her house
constructed on her said lot and built a fence along said Bolton Street which
she believed to be the boundary between her lot and said street and in line
with other fences already existing when she bought said lot.
In 1970, after a relocation of the monuments of her lot, VELASCO
discovered that the Bolton Street of the respondent CITY OF DAVAO had
encroached at least 25 sq. m. with dimension of 2.5 meters by 10 meters,
making her actual occupation of her lot 10 meters by 47.5 meters.
She also had just discovered that the width of the Bolton Street is only 9
meters and since the CITY OF DAVAO was then asphalting the said street,
VELASCO had filed a complaint with the CFI of Davao in order to quiet her
title to the said portion of 2.5 meters by 10 meters. She alleged that because
the continued illegal occupation of said portion by the CITY OF DAVAO, it had
cast a cloud of doubt on the title over the portion of her lot being occupied
by Bolton Street, which was valued at P400 per square meters.
THE CITY OF DAVAO filed a motion to dismiss on the ground that the
complaint stated no cause of action. The CFI, presided over by public
respondent JUDGE HON. VICENTE CUSI JR., dismissed the case in 1970. The
court held that the allegations in the complaint that the Bolton Street
encroached on the lot of VELACO and that the CITY OF DAVAO had
continuously occupied the portion so encroached upon do not, contrary to
the conclusion of VELASCO, cast a cloud of doubt on her title, which would
justify this action.
Hence, this petition for certiorari seeking a review of the order of
dismissal. VELASCO contended that the CFI erred in declaring that Bolton
Street was an easement and must remain a burden on Lot 77-b2 (lot in
question) pursuant to section 39 of act 496 on the ground that it was subject
to easement of public highway. VELASCO also stated that Bolton Street could
not be a discontinuous easement as she claimed it to be, which may not be
acquired by prescription. She contended that the mode of acquisition of the
easement that Bolton Street is, would be only by virtue of title.
ISSUE
 (1) Whether or not Bolton Street was subject of an easement
of public highway.
(2) Whether or not the mode of acquisition of the easement
that Bolton Street is, would be only by virtue of title.
RULING
(1) YES, it was subject of an easement of public highway.
It appears on the face of the complaint that Bolton Street has
been where it is from time immemorial. When the mother title of
petitioner's TCT, which was an OCT issued in 1911, it was issued
subject to the provisions of Section 39 of Act 496 which reads:
Section 39. Every person receiving a certificate of title in
pursuance of a decree or registration, and every subsequent
purchasers of registered land who takes a certificate of title
for value in good faith shall hold the same free of all
encumbrances, except those noted on said certificate, and any
of the following encumbrances which may be subsisting
namely:
"Third. Any public highway, way, private way, or any
government irrigation, canal, or lateral thereof ....... "
From the foregoing provision, Bolton Street which is a public
highway, was already subsisting when said OCT was issued in 1911.
This fact was deemed to have attached as a legal encumbrance to
the lot originally registered, Lot No. 77-b2, notwithstanding the lack
of an annotation thereof in the OCT. VELASCO, therefore, could not
rely, as she almost entirely did for the relief she sought, on the
aforequoted provision, which she had repeatedly cited but without
making mention, perhaps conveniently, of the exception as
expressly provided in the later part of the legal provision invoked
(Sec. 39, Act 496).
If from the undisputed fact when Lot 77 was registered,
Bolton Street had already been a legal encumbrance on said lot,
pursuant to Section 39 of Act 496, contrary to VELASCO's theory
based on the same legal provision, but omitting the portion
pertinent to the instant case, there can be no gainsaying the fact
that petitioner's lot, Lot No. 77-B-2, which admittedly was originally
a part of Lot No. 77, must have to remain subject to the same legal
encumbrance of a public highway.
(2) Whether the mode of acquisition of the easement that
Bolton Street is, would be only by virtue of title, as VELASCO
contended, this is not material or of any consequence, in the
present proceedings.
Once it indubitably appears as it does, from the allegations of
the complaint itself, that Bolton Street constituted an easement of
public highway on Lot No. 77, from which VELASCO's lot was taken,
when the said bigger lot was originally registered. It remained as
such legal encumbrance, as effectively as if it had been duly noted
on the certificate of title, by virtue of the clear and express
provision of Section 39 of Act 496, it being admitted that at the
time of the registration of Lot 77, the public highway was already in
existence or subsisting.
This fact erases whatever cause of action petitioner may have
to bring the complaint she filed in the court a quo for quieting of
title on a portion of the street which she claimed to be part of her
lot, free from encumbrance of any kind. The Order complained of
has only this legal postulate as its basis. Nothing had been
mentioned therein on the acquisition by the CITY OF DAVAO of the
lot in question by prescription, and a discussion of this matter as is
found in petitioner's brief would be entirely irrelevant.
BOGO-MEDELLIN MILLING vs. CA, ET AL.
GR No 124699. July 31, 2003
The presence of railroad tracks for the passage of
petitioner’s trains denotes the existence of an apparent
but discontinuous easement of right of way. And under
Article 622 of the Civil Code, discontinuous easements,
whether apparent or not, may be acquired only by title
and not by prescription.
FACTS
Magdaleno Valdez, Sr., father of herein private respondents,
Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and
Daylinda Argawanon-Melendres (HEIRS OF VALDEZ), purchased from
Feliciana Santillan in 1935, a parcel of unregistered land covered by a tax
declaration with an area of 1 hectare, 34 ares and 16 centares, located in
Barrio Dayhagon, Medellin, Cebu. He took possession of the property and
declared it for tax purposes in his name.
Prior to the sale, however, the entire length of the land from north to
south was already traversed in the middle by railroad tracks owned by
petitioner BOGO-MEDELLIN MILLING CO., INC. (BOMEDCO). The tracks were
used for hauling sugar cane from the fields to BOMEDCO’s sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, private respondents
HEIRS OF VALDEZ inherited the land. However, unknown to them, BOMEDCO
was able to have the disputed middle lot which was occupied by the railroad
tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965.
The entire subject land was divided into 3, namely, Cadastral Lot Nos. 953,
954 and 955. The 1st and 3rd lots remained in the name of the HEIRS OF
VALDEZ while the 2nd however, the narrow lot where the railroad tracks lay,
was claimed by BOMEDCO as its own and was declared for tax purposes in its
name.
It was not until 1989 when the HEIRS OF VALDEZ discovered the
aforementioned claim of BOMEDCO on inquiry with the Bureau of Lands.
Through their lawyer, they immediately demanded the legal basis for
BOMEDCO's claim over Cadastral Lot No. 954 but their letter of inquiry
addressed to petitioner went unheeded, as was their subsequent demand for
payment of compensation for the use of the land.
Hence, the HEIRS OF VALDEZ filed a “Complaint for Payment of
Compensation and/or Recovery of Possession of Real Property and Damages
with Application for Restraining Order/Preliminary Injunction” against
BOMEDCO before the RTC of Cebu. They alleged that, before Santillan sold
the land to VALDEZ, SR. in 1935, Santillan granted BOMEDCO, in 1929, a
railroad right of way for a period of 30 years. When Valdez, Sr. acquired the
land, he respected the grant. The right of way expired sometime in 1959 but
respondent heirs allowed BOMEDCO to continue using the land because one
of them was then an employee of the company.
On the other hand, BOMEDCO’s principal defense was that it was the
owner and possessor of Cadastral Lot No. 954, having allegedly bought the
same from Feliciana Santillan in 1929, prior to the sale of the property by the
latter to MAGDALENO VALDEZ, SR. in 1935. It also contended that the HEIRS
OF VALDEZ’s claim was already barred by prescription and laches because of
BOMEDCO’s open and continuous possession of the property for more than
50 years.
The trial court rejected BOMEDCO's defense of ownership on the basis
of a prior sale citing that its evidence a xerox copy of the Deed of Sale dated
1929 was inadmissible and had no probative value. Nonetheless, the trial
court held that BOMEDCO had been in possession of Cadastral Lot No. 954 in
good faith for more than 10 years, thus, it had already acquired ownership of
the property through acquisitive prescription under Article 620 of the Civil
Code. It declared that in view of the BOMEDCO’s uninterrupted possession of
the strip of land for more than 50 years, there was clear continuity of
defendant’s possession of the strip of land it had been using as railway
tracks. Thus, BOMEDCO’s apparent and continuous possession of said strip of
land in good faith for more than ten (10) years had made defendant owner of
said strip of land traversed by its railway tracks.
The HEIRS OF VALDEZ elevated the case to the Court of Appeals which
found that BOMEDCO did not acquire ownership over the lot. It
consequently reversed the trial court. In its decision dated 1995, the
appellate court held that BOMEDCO only acquired an easement of right of
way by unopposed and continuous use of the land, but not ownership, under
Article 620 of the Civil Code.
Hence, this appeal. BOMEDCO contended that, even if it failed to
acquire ownership of the subject land, it nevertheless became legally entitled
to the easement of right of way over said land by virtue of prescription under
Article 620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue
of a title or by prescription of ten years.
ISSUES
(1) Whether or not BOMEDCO acquired the easement of right of way
by prescription under Article 620 of the Civil Code. [also applicable to Article
622]
(2) Whether or not BOMEDCO was entitled to a conferment of a legal
easement of right of way. [applicable to Article 649]
RULING
(1) NO, it had not because it was a discontinuous easement
and under Article 622 of the Civil Code, discontinuous easements,
whether apparent or not, may be acquired only by title and not by
prescription.
The trial court and the Court of Appeals both upheld this view
for the reason that the railroad right of way was, according to
them, continuous and apparent in nature. The more or less
permanent railroad tracks were visually apparent and they
continuously occupied the subject strip of land from 1959 (the year
the easement granted by Feliciana Santillan to petitioner expired).
Thus, with the lapse of the 10-year prescriptive period in 1969,
BOMEDCO supposedly acquired the easement of right of way over
the subject land.
Following the logic of the courts a quo, if a road for the use of
vehicles or the passage of persons is permanently cemented or
asphalted, then the right of way over it becomes continuous in
nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either
continuous or discontinuous according to the manner they are
exercised, not according to the presence of apparent signs or
physical indications of the existence of such easements. Thus, an
easement is continuous if its use is, or may be, incessant without
the intervention of any act of man, like the easement of drainage;
and it is discontinuous if it is used at intervals and depends on the
act of man, like the easement of right of way.
The easement of right of way is considered discontinuous
because it is exercised only if a person passes or sets foot on
somebody else’s land. Like a road for the passage of vehicles or
persons, an easement of right of way of railroad tracks is
discontinuous because the right is exercised only if and when a
train operated by a person passes over another's property. In other
words, the very exercise of the servitude depends upon the act or
intervention of man which is the very essence of discontinuous
easements.
The presence of more or less permanent railroad tracks does
not in any way convert the nature of an easement of right of way to
one that is continuous. It is not the presence of apparent signs or
physical indications showing the existence of an easement, but
rather the manner of exercise thereof, that categorizes such
easement into continuous or discontinuous. The presence of
physical or visual signs only classifies an easement into apparent or
non-apparent. Thus, a road (which reveals a right of way) and a
window (which evidences a right to light and view) are apparent
easements, while an easement of not building beyond a certain
height is non-apparent.
In Cuba, it has been held that the existence of a permanent
railway does not make the right of way a continuous one; it is only
apparent. Therefore, it cannot be acquired by prescription. In
Louisiana, it has also been held that a right of passage over
another's land cannot be claimed by prescription because this
easement is discontinuous and can be established only by title.
In this case, the presence of railroad tracks for the passage of
petitioner’s trains denotes the existence of an apparent but
discontinuous easement of right of way. And under Article 622 of
the Civil Code, discontinuous easements, whether apparent or not,
may be acquired only by title. Unfortunately, BOMEDCO never
acquired any title over the use of the railroad right of way whether
by law, donation, testamentary succession or contract. Its use of
the right of way, however long, never resulted in its acquisition of
the easement because, under Article 622, the discontinuous
easement of a railroad right of way can only be acquired by title
and not by prescription.
To be sure, beginning 1959 when the original 30-year grant of
right of way given to petitioner BOMEDCO expired, its occupation
and use of Cadastral Lot No. 954 came to be by mere tolerance of
the HEIR OF VALDEZ. Thus, upon demand by said heirs in 1989 for
the return of the subject land and the removal of the railroad
tracks, or, in the alternative, payment of compensation for the use
thereof, petitioner BOMEDCO which had no title to the land should
have returned the possession thereof or should have begun paying
compensation for its use.
(2) NO, it was not entitled for a conferment of a legal
easement.
But when is a party deemed to acquire title over the use of such land
(that is, title over the easement of right of way)? In at least two cases, we
held that if: (a) it had subsequently entered into a contractual right of way
with the heirs for the continued use of the land under the principles of
voluntary easements or (b) it had filed a case against the heirs for
conferment on it of a legal easement of right of way under Article 629 of the
Civil Code, then title over the use of the land is deemed to exist. The
conferment of a legal easement of right of way under Article 629 is subject to
proof of the following:
(1) it is surrounded by other immovables and has no adequate
outlet to a public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial to
the servient estate, and, insofar as consistent with this rule,
the distance from the dominant estate to the highway is the
shortest.
None of the above options to acquire title over the railroad right of way
was ever pursued by petitioner despite the fact that simple resourcefulness
demanded such initiative, considering the importance of the railway tracks to
its business. No doubt, it is unlawfully occupying and using the subject strip
of land as a railroad right of way without valid title yet it refuses to vacate it
even after demand of the heirs. Furthermore, it tenaciously insists on
ownership thereof despite a clear showing to the contrary.
ARTICLE 623: The absence of a document or proof showing the
origin of an easement which cannot be acquired by prescription
may be cured by a deed of recognition by the owner of the servient
estate or by a final judgment
ARTICLE 624: The existence of an apparent sign of easement
between two estates, established or maintained by the owner of
both, shall be considered, should either of them be alienated, as a
title in order that the easement may continue actively and
passively, unless at the time the ownership of the two estates is
divided, the contrary should be provided in the title of conveyance
of either of them, or the sign aforesaid should be removed before
the execution of the deed. This provision shall also apply in case of
the division of a thing owned in common by two or more persons.
- Apparent sign of easement, NOT EXISTING SIGN, but a sign of an
existing easement. What exists here is not a sign but an
easement. Sign that an easement is being exercised.
- Apparent Signs of an Easement that Apparently Exists:
a. Originally (before alienation) no true easement exists
here because there is only one owner;
b. The article speaks of apparent visible easements;
c. Sign of the easement means an outward indication
that the easement exists. Examples: a road, the
existence of windows
Rules:
1. before the alienation, there is no true easement;
2. after alienation:
a. There arises an easement IF the sign continues to
remain there UNLESS there is a contrary agreement.
b. There is no easement if the sign is REMOVED or if there
is an agreement to that effect.
Example:
A owns Estate 1 and Estate 2 and there exists a road or
passageway allowing passage from Estate 1 thru Estate 2. If estate 1 is sold to
B and estate 2 is sold to C, the easement exists if the road still exists, unless
the contrary has been provided in the deed of conveyance of either of them.
If the deed be silent, the easement exists unless the sign be removed.
Juan Gargantos vs. Tan Yanon
Facts: Francisco Sanz owned a parcel of land with some buildings. He
subdivided the property into 3 portions each of which was sold to a different
person. One of the house with door and windows overlooking another
portion. In 1955, the buyer of the latter portion, Gargantos, applied for a
permit to construct a building on his lot. The buyer of the 1st portion opposed
approval of the application unless Gargantos would respect the easement of
light and view, and would observe the 3-meter requirement under
art 673 of the NCC. Gargantos alleged however, that no easement
had ever been acquired in view of the lack of a notarial prohibition.
Held: Garagantos should not construct, unless he observed the
3meter rule. No notarial prohibition was required, fro the proper
Article to apply is Art 624 regarding the existence of the apparent
sign of an easement: the existence of doors and windows.
Inapplicability of the article
- In case either estates or both portions are alienated to
the SAME owner, for then there would be no true
easement unless there Is a further alienation, this time,
to Different owners.
GARGANTOS vs. TAN YANON
GR No. L-14652. June 30, 1960
The existence of an apparent sign of easement between
two estates, established by the proprietor of both, shall
be considered, if one of them is alienated, as a “title”(i.e.
doors and windows) so that the easement will continue
actively and passively unless at the time the ownership
of the two estates is divided, the contrary is stated in the
deed of alienation of either of them, or the sign is made
to disappear before the instrument is executed.
FACTS
The late Francisco Sanz was the former owner of a parcel of
land containing 888 square meters, with the buildings and
improvements thereon, situated in the poblacion of Romblon. He
subdivided the lot into 2 and then sold each portion to different
persons. One portion was purchased by Guillermo Tengtio, who
subsequently sold it to Vicente Uy Veza. Another portion, with the
house of strong materials thereon, was sold in 1927 to respondent
TAN YANON. This house has on its northeastern side, doors and
windows overlooking the third portion, which, together with the
camarin and small building thereon, after passing through several
hands, was finally acquired by petitioner JUAN GARGANTOS.
In 1955, GARGANTOS applied to the Municipal Mayor of
Romblon for a permit to demolish the roofing of the old camarin.
The permit having been granted, GARGANTOS tore down the roof
of the camarin. Later, GARGANTOS asked the Municipal Council of
Romblon for another permit, this time in order to construct a
combined residential house and warehouse on his lot. TAN YANON
opposed approval of this application.
Later, the permit to build by GARGANTOS was granted. TAN
YANON then filed an action with the CFI to restrain GARGANTOS
from constructing a building as should the construction proceed,
the building would prevent TAN YANON from receiving light and
enjoying the view through the windows of his house, unless such
building was erected at a distance of not less than 3 meters from
the boundary line between the 2 lots. The case as against the
members of the Municipal Council was subsequently dismissed
with concurrence of plaintiff's council.
The CFI dismissed the complaint. On appeal, the Court of
Appeals set aside the decision of the Court of First Instance of
Romblon and enjoined defendant from constructing his building
unless he erects the same at a distance of not less than three
meters from the boundary line of his property, in conformity with
Article 673 of the New Civil Code.
So, GARGANTOS filed this petition for review of the appellate
Court's decision. GARGANTOS argued that TAN YANON has not
acquired an easement by prescription because he has never
formally forbidden TAN YANON from performing any act which
would be lawful without the easement, hence the prescriptive
period never started.
ISSUE
Whether or not the property of TAN YANON has an easement
of light and view against the property of GARGANTOS.
RULING
YES, the property of TAN YANON had acquired an easement of light and
view against the property of GARGANTOS.
The two estates, now owned by GARGANTOS and TANYANON, were
formerly owned by just one person, Francisco Sanz. It was Sanz who
introduced improvements on both properties. On that portion presently
belonging to respondent, he constructed a house in such a way that the
northeastern side thereof extends to the wall of the camarin on the portion
now belonging to GARGANTOS. On said northeastern side of the house, there
are windows and doors which serve as passages for light and view. These
windows and doors were in existence when TAN YANON purchased the
house and lot from Sanz. The deed of sale did not provide that the easement
of light and view would not be established.
This then is precisely the case covered by 624, which provides that the
existence of an apparent sign of easement between two estates, established
by the proprietor of both, shall be considered, if one of them is alienated, as
a “title” so that the easement will continue actively and passively unless at
the time the ownership of the two estates is divided, the contrary is stated in
the deed of alienation of either of them, or the sign is made to disappear
before the instrument is executed.
The existence of the doors and windows on the northeastern side of the
aforementioned house, is equivalent to a title, for the visible and permanent
sign of an easement is the title that characterizes its existence.
It should be noted, however, that while the law declares that the
easement is to "continue" the easement actually arises for the first time only
upon alienation of either estate, inasmuch as before that time there is no
easement to speak of, there being but one owner of both estates (Article
613).
TAN YANON's property has an easement of light and view against
GARGANTOS's property. By reason of this easement, GARGANTOS cannot
construct on his land any building unless he erects it at a distance of not less
than 3 meters from the boundary line separating the two estates.
TAÑEDO vs. HON. BERNAD, ET AL.
GR No. L-66520. August 30, 1988
In the instant case, no statement abolishing or extinguishing the
easement of drainage was mentioned in the deed of sale of Lot A
to Tañedo. Nor did Cardenas stop the use of the drain pipe and
septic tank by the occupants of Lot A before he sold said lot to
Tañedo. Hence, the use of the septic tank was continued by
operation of law.
FACTS
Private respondent ANTONIO CARDENAS was the owner of 2 contiguous
parcels of land, Lot A (140 sq. m.) and Lot B (612 sq. m.) situated in Cebu City
which he had inherited from Lourdes Cardenas.
On Lot A, an apartment building was constructed. On the other hand,
the improvements on Lot B consisted of (1) a 4-door apartment of concrete
and strong materials, (2) a 2-storey house of strong materials, (3) a bodega of
strong materials and (4) a septic tank for the common use of the occupants
of Lots A and B. A small portion of the apartment building on Lot A also
stands on Lot B.
In 1982, CARDENAS sold Lot A to herein petitioner EDUARDO C.
TAÑEDO. CARDENAS, on that same day, also mortgaged Lot B to TAÑEDO as a
security for the payment of a loan in the amount of P10,000.00.
CARDENAS further agreed that he would sell Lot B only to TAÑEDO in
case he should decide to sell it, as the septic tank in Lot B services Lot A and
the apartment building on Lot A has a part standing on Lot B. CARDENAS,
however, sold Lot B to the co-private respondent SPOUSES ROMEO AND
PACITA SIM.
Upon learning of the sale, TAÑEDO offered to redeem the property
from ROMEO SIM but the latter refused. Instead, ROMEO SIM blocked the
sewage pipe connecting the building of TAÑEDO built on Lot A, to the septic
tank in Lot B. He also asked TAÑEDO to remove that portion of his building
encroaching on Lot B.
As a result, TAÑEDO, invoking the provisions of Art. 1622 of the Civil
Code, filed an action for legal redemption and damages, with a prayer for the
issuance of a writ of preliminary injunction, before the RTC of Cebu against
the SPOUSES ROMEO and PACITA SIM, ANTONIO CARDENAS and his wife
MAE LINDA CARDENAS, the REGISTER OF DEEDS OF CEBU CITY, and BANCO
CEBUANO, CEBU CITY DEVELOPMENT BANK.
 Answering, the SPOUSES ROMEO and PACITA SIM claimed
that they are the absolute owners of Lot B and that TAÑEDO had no
right to redeem the land under Art. 1622 of the Civil Code as the
land sought to be redeemed is much bigger than the land owned by
Tañedo.
CARDENAS, upon the other hand, admitted that he had
agreed to sell Lot B to Eduardo TAÑEDO and claimed by way of
cross-claim against the SPOUSES ROMEO and PACITA SIM, that the
Deed of Sale he had executed in favor of said spouses was only
intended as an equitable mortgage, to secure the payment of
amounts received by him from said spouses as petty loans.
In answer to the cross-claim, the SPOUSES ROMEO and
PACITA SIM insisted that the sale executed by CARDENAS of Lot -B
in their favor was an absolute one. In 1983, the SPOUSES ROMEO
and PACITA SIM filed motions to dismiss the complaint and the
cross-claim, for lack of cause of action.
Acting upon these motions and other incidental motions, the
respondent judge HON. JUANITO BERNAD dismissed both the
complaint and cross-claim.
Hence, the present recourse by TAÑEDO.
ISSUE
Whether or not easement in favor of TAÑEDO ceased.
RULING
NO, it did. The use of the easement was continued by
operation of law. Article 624 of the Civil Code provides:
The existence of an apparent sign of easement
between two estates, established or maintained by the
owner of both, shall be considered should either of them
be alienated, as a title in order that the easement may
continue actively and passively, unless, at the time the
ownership of the two estates is divided, the contrary
should be provided in the title of conveyance of either of
them, or the sign aforesaid should be removed before
the execution of the deed. This provision shall also apply
in case of the division of a thing owned in common by
two or more persons.
In the instant case, no statement abolishing or extinguishing
the easement of drainage was mentioned in the deed of sale of Lot
A to TAÑEDO. Nor did CARDENAS stop the use of the drain pipe and
septic tank by the occupants of Lot A before he sold said lot to
TAÑEDO. Hence, the use of the septic tank was continued by
operation of law. Accordingly, the SPOUSES ROMEO and PACITA
SIM, the new owners of the servient estate (Lot B), cannot impair,
in any manner whatsoever, the use of the servitude."
ARTICLE 625: Upon the establishment of an easement, all the rights
necessary for its use are considered granted.
ARTICLE 626: The owner of the dominant estate cannot use the
easement except for the benefit of the immovable originally
contemplated. Neither can he exercise the easement in any other
manner than that previously established.
Easements Appurtenant and Easements in Gross
- Art 626 presuposes the existence of course of a
dominant estate, otherwise the Article cannot apply.
Easements with a dominant estate are called easement
appurtenant, without the dominant estate, they are
purely personal, and may thus be referred to as
easements in gross.
RIGHTS AND OBLIGATIONS OF THE OWNERS OF THE DOMINANT
AND SERVIENT ESTATE
ARTICLE 627: The owner of the dominant estate may make, at his
own expense, on the servient estate any works necessary for the
use and preservation of the servitude, but without altering it or
rendering it more burdensome.
For this purpose he shall notify the owner of the servient
estate, and shall choose the most convenient time and manner so
as to cause the least inconvenience to the owner of the servient
estate.
- The rights of dominant estate:
1. Exercise the easement and all necessary rights for its use including
accessory easements. So the principal easement carries with it the
accessory easements. The right to exercise accessory easements
under Art. 625.
So if the easement is for drawing water it carries with it the accessory of
easement of right of way.
2. To make on the servient estate all works necessary for the use and
preservation of the servitude, including repair and maintenance.
However, these must be at his own expense, he must notify the
servient owner, select convenient time and place, and he must
not alter easment or render it more burdensome.
3. To ask for mandatory injunction to prevent impairment or
obstruction in the exercise of the easement. Leading case of
Resolme vs. Lazo 27 Phil 416;
4. To renounce totally, if he desires exemption from contribution to
expenses under Art. 628. If he does not wish to contribute [if
there are several dominant estates] for the maintenance and
repair of the easement, then he may renounce his rights totally.
Obligations of the dominant estate:
1. He cannot alter the easement;
2. He cannot make it more burdensome. (Art. 627)
3. He cannot use the easement except for the immovable originally
contemplated.
4. In the easement of right of way, he cannot increase the agreed
width of path or deposit soil or materials outside the boundaries
agreed upon, for doing so would increase the burden of the
easement. .
Valderama vs. North Negros Sugar Co.
Wherein the dominant estate is allowed to pass the property of the servient
estate through a path or alley. Accdg to the SC, if the dominant estate is
allowed to pass over another's property, he may also allow neighbors to pass
over the same property. But accdg. to some authors, Capistrano of the Code
Commission, said that this decision is erroneous. To correct the said injustice
of this decision, the Code commission included Art. 626.
So he cannot use the easement except for immovable originally
contemplated. Because allowing somebody else to pass through another's
property would increase the burden (of the easement).
VALDERRAMA vs. NORTH NEGROS SUGAR
GR Nos. L-23810, L-23811 & L-23812. December 18, 1925
Under Article 627 of the Civil Code, the owner of the dominant
estate, in making on the servient estate the necessary works for
the use and preservation of the easement, cannot alter it, nor
make it more burdensome but this does not mean that NORTH
NEGROS could not transport in the wagons passing upon the
railroad other cane that of VALDERRAMA, RODRIGUEZ and URRA,
ET AL because the railroad continued to occupy the same area on
the servient estates and the encumbrance resulting from the
easement continued to be the same, whether the tractors traverse
the line 10, 20 or 30 times a day transporting cane for the central.
FACTS
In 1916, several hacienda owners in Manapla, Occidental Negros
entered into a contract with Miguel J. Osorio, known as milling contract,
wherein Osorio agreed to install in Manapla a sugar central of a minimum
capacity of 300 tons, for grinding and milling all the sugar cane to be grown
by the hacienda owners, who in turn bound themselves to furnish the central
with all the cane they might produce in their estates for 30 years from the
execution of the contract, all in accordance with the conditions specified
therein.
Later on, respondent NORTH NEGROS SUGAR CO., INC., acquired the
rights and interest of Miguel J. Osorio in the milling contract aforesaid.
 In 1919 petitioners CATALINO VALDERRAMA (case No. 23810)
and EMILIO RODRIGUEZ (case No. 23811) and SANTOS URRA,
IGNACIO BENITO HUARTE, ADOLFO HUARTE AND PEDRO
AUZMENDI (case No. 23812) made with NORTH NEGROS other
milling contracts identical with the first one dated 1916 with some
new conditions. URRA thereafter transferred to one Pedro
Auzmendi, and the latter to Lorenzo Echarri, their interest in the
milling contract executed by them.
In view of the fact that the hacienda owners, who were up to
that time customers of the central, could not furnish sufficient cane
for milling, as required by the capacity of said central, NORTH
NEGROS made other milling contracts with various hacienda
owners of Cadiz, Occidental Negros, in order to obtain sufficient
cane to sustain the central.
This gave rise to VALDERRAMA, RODRIGUEZ and URRA, ET
AL.’s filing of their respective complaints with the CFI, alleging that
the easement of way, which each of them had established in his
respective hacienda, was only for the transportation through each
hacienda of the sugar cane of the owner thereof. Also, while
NORTH NEGROS maintained that it had the right to transport to its
central upon the railroad passing through the haciendas of
VALDERRAMA, RODRIGUEZ and URRA, ET AL., not only the sugar
cane harvested in said haciendas, but also that of the hacienda
owners of Cadiz, Occidental Negros.
VALDERRAMA, RODRIGUEZ and URRA, ET AL.prayed that it be
held that NORTH NEGROS had no right, under the easement or
otherwise, to cause its locomotives and wagons to run across the
estates of the plaintiffs for the purpose of transporting sugar cane
of any agriculturist of Cadiz, Occidental Negros.
On the other hand, NORTH NEGROS alleged that
VALDERRAMA, RODRIGUEZ and URRA, ET AL. respectively granted
it for the period of 50 years from the date of the aforesaid
contracts, an easement of way 7 meters wide upon the lands of the
plaintiffs for the construction and operation of a railroad for the
transportation of sugar cane. It added that said easement of way
was established without any restriction whatsoever, as regards the
ownership of the cane to be transported over the said railroad.
After hearing the 3 cases, the trial court entered held that
NORTH NEGROS had no right to pass through the lands of
VALDERRAMA, RODRIGUEZ and URRA, ET AL. for the transportation
of sugar cane not grown from any of the latter’s haciendas.
From this judgment NORTH NEGROS appealed. Another
reason advanced by VALDERRAMA, RODRIGUEZ and URRA, ET AL.
in support of their theory is that by transporting upon the road,
through the servient estates, the cane of the planters of Cadiz, it
would alter the easement, making it more burdensome.
ISSUE
Whether or not NORTH NEGROS could transport on its
railroad passing through the haciendas of VALDERRAMA,
RODRIGUEZ and URRA, ET AL. where it had an easement of way
established in its favor, the cane not grown in the haciendas of the
latter, to be milled in the central of the NORTH NEGROS because it
made the easement more burdensome.
RULING
YES, NORTH NEGROS could still transport so.
It is true that Under Article 627 (then Article 543) of the Civil
Code that the owner of the dominant estate, in making on the
servient estate the necessary works for the use and preservation of
the easement, cannot alter it, nor make it more burdensome. But
this does not mean that NORTH NEGROS could not transport in the
wagons passing upon the railroad other cane that of VALDERRAMA,
RODRIGUEZ and URRA, ET AL.
What is prohibited by the legal provision above cited is that
NORTH NEGROS in excavations or building materials outside of the
area of 7 meters, because in the first case, the easement will be
altered, and in the second it would become more burdensome. But
nothing of the kind happened when NORTH NEGROS transported
on the railroad, crossing the servient estates, the cane of the
planters of Cadiz. The railroad continues to occupy the same area
on the servient estates and the encumbrance resulting from the
easement continues to be the same, whether the tractors traverse the line
10, 20 or 30 times a day transporting cane for the central.
Furthermore, the record showed a circumstance indicating that at the
time of the execution of the milling contracts above referred to, there was no
intention of the part of the contracting parties to limit the use of the railroad
to the transportation of cane grown by the plaintiffs in their respective
haciendas, and that is because, while the duration of the milling contracts is
fixed at 30 years that of the easement was at 50. So that if at the end of 30
years VALDERRAMA, RODRIFUEZ and URRA, ET AL. or their successors should
no longer desire to furnish canes for milling in the central of NORTH NEGROS,
the latter shall still have the right to the easement for the remaining period,
but without transporting on the railroad any cane for the central. An
interpretation of the clause in question leading to such a result is untenable.
In the respective contracts VALDERRAMA, RODRIGUEZ and URRA, ET AL.
with NORTH NEGROS in 1919, there appeared: "6th. That in order to have the
obligations herein entered into by Mr. Valderrama duly registered, in regard
to the rural estates belonging to him and which are described hereinafter, an
easement of way 7 meter wide and for the period of 50 years from the date
hereof is hereby created in favor of the 'North Negros Sugar Co., Inc., ' upon
his property hereinafter described, at such place as said corporation may see
fit for the construction of a railroad."
Had the clause mentioned only an "easement of way," there might be a
doubt as to whether or not the easement of way was for pedestrians,
horsemen or carriages. But when the clause says: "easement of way 7 meters
wide for the period of 50 years for the construction of the railroad," there
could be no doubt about what the contracting parties have agreed upon, to
wit, that VALDERRAMA, RODRIGUEZ and URRA, ET AL. had created upon their
respective haciendas at a suitable place an easement of way 7 meters wide
and for a period of fifty years, in order to enable NORTH NEGROS to build and
maintain a railroad for the transportation of sugar cane to the central. It was
clear that the cane of VALDERRAMA, RODRIGUEZ and URRA, ET AL. was to be
transported upon the railroad to the central. But to limit the use of the road
exclusively to the cane of the plaintiffs and within their respective haciendas
would make the contract in question ineffective, except as to the hacienda
which is contiguous or nearest to the central. If VALDERRAMA, RODRIGUEZ
and URRA, ET AL. do not produce sufficient cane to cover the capacity of the
central, it would be unjust to impose upon the NORTH NEGROS the burden of
maintaining a central, prohibiting it to obtain from another source sufficient
cane with which to maintain its business. Besides, in the milling contract,
there was nothing to prohibit NORTN NEGROS from making milling contracts
with other planters, and obtain in that way all cane necessary to cover the
capacity of the central.
It is against the nature of the easement to pretend that it was
established in favor of the servient estates, because it is a well-settled rule
that things serve their owner by reason of ownership and not by reason of
easement.
This was a case of an easement for the benefit of a corporation,
voluntarily created by VALDERRAMA, RODRIGUEZ and URRA, ET AL. upon
their respective estates for the construction of a railroad connecting said
estates with the central of the defendant. But as the easement was created
for the benefit of the corporation, owner of the central, it may cause its
wagons to pass upon the road as many times as it may deem fit, according to
the needs of the central.
ARTICLE 628: Should there be several dominant estates, the owners
of all of them shall be obliged to contribute to the expenses referred
to in the preceding article, in proportion to the benefits which each
may derive from the work. Any one who does not wish to contribute
may exempt himself by renouncing the easement for the benefit of
the others.
If the owner of the servient estate should make use of
the easement in any manner whatsoever, he shall also be obliged to
contribute to the expenses in the proportion stated, saving an
agreement to the contrary.
ARTICLE 629: The owner if the servient estate cannot impair, in any
manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally
assigned, or of the manner established for the use of the easement,
the same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any important
works, repairs or improvements thereon, it may be changed at his
expense, provided he offers another place or manner equally
convenient and in such a way that no injury is caused thereby to the
owner of the dominant estate or to those who may have a right to
use of the easement.
RIGHTS OF THE SERVIENT ESTATE:
1. To retain possession and ownership of the portion of his
land affected by the easement. So would the owner of
the servient estate lose possession or ownership of his
property? No, he retains possession or ownership,
except that it is burdened by an encumbrance.
2. To make use of the easement.. Generally, unless
deprived under the terms and conditions of the
contract. Now, if he makes use of the easement, he has
to contribute for the expenses for the maintenance
thereof.
3. Has the right to change the location of a very
inconvenient easement, provided that an equally
convenient substitute is made without injury on the part
of the dominant estate. (the change in location would
not result to injury on the part of the dominant estate)
OBLIGATIONS OF THE SERVIENT ESTATE
1. He cannot impair the use of the easement. For example,
he blocks the flow of water;
2. He must contribute to the expenses in case he uses the
easement;
3. In case of impairment, he has the obligation to restore
the easement to its original location;
4. If he wishes to change the location of the easement, the
change must be done at his own expense. (Art. 629).
ARTICLE 630: The owner of the servient estate retains ownership of
the portion in which the easement is established, and may use the
same in such a manner as not to affect the exercise of the
easement.
MODES OF EXTINGUISHMENT OF EASEMENTS
ARTICLE 631: Easements are extinguished:
1. By merger in the same person of the ownership of the
dominant and servient estates;
2. By non-use for ten years; with respect to discontinuous
easements, this period shall be computed from the day
on which they ceased to be used; and, with respect to
continuous easements, from the day on which an act
contrary to the same took place;
3. When either or both of the estates fall into such
condition that the easement cannot be used; but it shall
revive if the subsequent condition of the estates or either
of them should again permit its use, unless when the use
becomes possible, sufficient tome for prescription has
elapsed, in accordance with the provisions of the
preceeding number;
4. By the expiration of the term or the fulfilment of the
condition, if the easement is temporary or conditional;
5. By the renunciation of the owner of the dominant estate;
6. By the redemption agreed upon between the owners of
the dominant and servient estates.
Modes of extinguishment of easement
1. merger of the dominant and the servient estate into one. A
merger must be absolute complete. If there are conditions or
merely partial, then there is no extinguishment.
Ex: Sale a retro
2. non user for 10 years. This presupposes that an easement has
been used before and later it is no longer used for 10 years. Non
user here is voluntary abstention and not due to some kind of
fortuitous event. The 10 year period is counted from the time the easement
is no longer used
If it is a continuous easement like a canal, then the period is counted from
the time an act contrary to the use of easement is occurred
3. by impossibility of use or bad condition by the tenement. But some
authors would say that this does not really extinguish the easement but
merely suspends the use until after the situation improves,
Except if has been non used for 10 years.
4. By expiration of the term or fulfillment of the condition. For example the
easement was created to last upon until the owner of the servient estate
becomes a lawyer. If he becomes a lawyer, the condition is fulfilled and the
easement extinguished.
5. waiver or renunciation of the owner of the dominant estate. As a general
rule, the renunciation must be express, clear and specific. Otherwise it will be
confused with non user. Nonetheless, it may be tacit for as long as there are
acts that clearly reveal the renunciation beyond doubt.
6. Other causes: Expropriation, annulment, rescission, cancellation,
abandonment of the servient estate, and resolution of the right of the
grantor to create the easement.
CABACUNGAN vs. CORRALES
GR N. L-6629. September 30, 1954
Under Article 631 of the Civil Code, the easement is not
extinguished by the acquisition of a share in property held in
common.
FACTS
Petitioners EUFROCINA HIDALGO CABACUNGAN, AURELIA HIDALGO
ROLDAN, and TERESA HIDALGO IGLESIAS, together with 3 other sisters were
co-heirs and co-owners of a parcel of land. In 1952, 2 of their sisters, as co-
heirs and co-owners, Sofia Hidalgo Soria and Carmen Soria Abad had sold
their undivided shares in said land to respondent QUINTIN CORRALES, an
outsider.
CABACUNGAN, ET AL. wished to redeem said property in accordance
with Article 1088 of the Civil Code. Hence, they approached QUINTIN
CORRALES and his wife and co-respondent CATALINA V. CORRALES and
tendered them P600 for that purpose, but the tender was refused.
CABACUNGAN, ET AL. then filed an action with the CFI of Ilocos Sur,
praying that CORRALES be ordered to allow them to exercise their right of
legal redemption. The complaint set up three causes of action.
CABACUNGAN, ET AL. alleged that in 1950, CORRALES, being owners of a lot
contiguous to the land here in question, constructed a building on said lot
with balcony and windows less than 3 meters distant from said land and with
roof that drains rain water into it in violation of Article 670 and 674,
respectively, of the New Civil Code. They therefore prayed that the said
balcony and windows be ordered closed and the roofs constructed in such a
way that rain water would not fall on CABACUNGAN, ET AL.'s land. Taking the
view that, with the acquisition by CORRALES of a share in the land in
question, the easement of light, view and drainage was extinguished "by
merger in the same person of the ownership of dominant and servient
estates" pursuant to Article 631 of the New Civil Code, the lower court ruled
out this cause of action.
Hence, this appeal.
ISSUE
Whether or not with the acquisition by CORRALES of a share in the land
in question, the easement of light, view and drainage was extinguished "by
merger in the same person of the ownership of dominant and servient
estates" pursuant to Article 631 of the New Civil Code.
RULING
NO, there was no merger. As CORRALES had not become sole owners
of the servient estate, for they have acquired only a part interest therein, it
could not be said that in this case ownership of the dominant and servient
estates has been merged in the same person for the purposes of Article 631
of the Civil Code. Thus, commenting on the corresponding article of the
Spanish Civil Code (Art. 546), Manresa observed that under that
article the easement is not extinguished by the acquisition of a
share in property held in common.
And as to the matter of drainage, Article 674 of the New Civil
Code specifically provides "that the owner of a building shall be
obliged to construct its roof or covering in such a manner that the
rain water shall fall on his own land or on a street or public place,
and not on the land of his neighbor, even though the adjacent land
may belong to two or more persons, one of whom is the owner of
the proof."
BENEDICTO vs. CA
GR N. L-22733. September 25, 1968
In the present case, there was no indubitable proof of
non-user. BENEDICTO merely assumed that the
passageway in question had not been in use since 1941
because the property of Heras has since gained direct
access to San Marcelino street with the demolition of his
house.
FACTS
Miriam R. Hedrick owned several parcels of land. In 1917,
Hedrick sold a portion of such property to Claro M. Recto as proven
by a Deed of Sale in the latter’s favor. At the time of the sale, some
buildings were located on the respective properties of Clara M.
Recto and Miriam R. Hedrick. Later, by virtue of the Deed of Sale in
favor of Recto, a separate TCT was issued in his name. In line with
this, Hedrick also asked for a separate new title based on the new
survey in the cadastral survey of 1917. In 1924, a new TCT was
issued in her name.
The property purchased by Recto from Hedrick became the
subject of a series of transfers. It was sold by Recto to one
Emmanuel Ty (TCT issued in 1924), who later sold in petitioner
SALVADOR BENEDICTO. BENEDICTO was issued a TCT in 1934.
On the other hand, the remaining property of Hedrick also
became the subject of a series of transfers. Hedrick sold it to one
Chow Kwo Hsien (TCT issued in 1924), who sold it to General
Security and Investment Co. (TCT issued in 1936), who eventually
sold it to respondent VICENTE A. HERAS. A TCT in favor of HERAS
was issued in 1941.
The properties of BENEDICTO and HERAS were adjoining each
other as it formerly belonged to one property owned by Hedrick.
In 1941, HERAS demolished the entire building situated on his
property.
IN 1955, HERAS filed an action in court seeking to recover a
portion of land enclosed and waited by the BENEDICTO, and to
demand the reopening of an easement of way between his real
property and that of the petitioner.
The trial court found that after selling potions of his lot,
Hedrick obtained a separate title for the remaining 2 lots, with an
area of only 540.4 square meters. But in the new TCT issued to
Hedrick, their total area was made to appear to be 681.30 square
meters. The increase in area was due to the fact that the technical
description used in the new title was based on a cadastral survey.
Since HERAS, as successor-in-interest of Hedrick, owned no more
than 540.4 square meter, the court held that no portion of his
property had been encroached upon by the BENEDICTO.
The trial court likewise found that the easement of way was
found entirely within the property of BENEDICTO, contrary to the
stipulation in the deed of sale between Miriam R. Hedrick and Claro
M. Recto that it should be between their properties, with each
contributing an equal portion of his property. According to the
court, this was the reason why Recto, BENEDICTO's predecessor-in-
interest, who had earlier asked for a resurvey in accordance with
the deed of sale, subsequently withdrew his motion, after finding
that the passageway was located entirely within his property.
Accordingly, the court directed both parties to contribute
equally to the maintenance of a three to four-meter-wide
passageway between their properties, with the property line
running at the middle of the passageway. It rejected BENEDICTO's
claim that the easement had been extinguished by nonuser and by the
cessation of the necessity for a passageway.
Both parties appealed to the Court of Appeals. SALVADOR BENEDICTO,
who in the meantime died, was substituted by the judicial administrator of
his estate, ROBERTO S. BENEDICTO. In 1964, the Court of Appeals rendered
affirned in toto the decision of the trial court.
Hence, this appeal by BENEDICTO. According to him, the easement was
originally constituted because the buildings then erected on the respective
properties of Miriam R. Hedrick and Claro M. Recto so adjoined each other
that the only way the back portions of the properties could be reached by
their owners from San Marcelino street was through the passageway. He
claimed that when the HERAS had his building demolished in 1941 the
property gained direct access to San Marcelino street with the result that
since then there has been no need for the passageway. He argued further
that it could be assumed that since 1941 the passageway ceased to be used
for certainly BENEDICTO could not be expected to be making 'detours' to
reach San Marcelino Street when the very frontage of his property was now
open in its entirety to San Marcelino Street.
ISSUE
Whether or not the easement was already extinguished by nonuser.
RULING
NO, it was not extinguished by nonuser.
Article 631 of the Civil Code provides in part:
Art. 631. Easements are extinguished:
(2) By nonuser for ten years; with respect to discontinuous
easements, this period shall be computed from the day on
which they ceased to be used; and, with respect to
continuous easements, from the day on which an act
contrary to the same took place;
(3) When either or both of the estates fall into such condition
that the casement cannot be used; but it shall revive if the
subsequent condition of the estates or either of them
should again permit its use; unless when the use become
possible, sufficient time for prescription has elapsed, in
accordance with the provisions of the preceding number;
...
This provision was taken from article 546 of the Civil Code of 1889, with
the modification that the period of nonuser was reduced from 20 to 10 years.
BENEDICTO argued at length that this case is governed by the present
Code, and that since 14 years had elapsed from the time the building on
HERAS' property was demolished in 1941 to 1955 when this action was
begun (during which period he assumes that the passageway ceased to be
used because HERAs' property had direct access to the street), the easement
must be deemed to have been extinguished.
The court did not find it necessary to determine whether the
appropriate period of nonuser in this case is 20 or 10 years. For one thing,
there is no indubitable proof of non-user. BENEDICTO merely assumed that
the passageway in question had not been in use since 1941 because the
property of HERAS has since gained direct access to San Marcelino Street
with the demolition of his house.
For another, even if it be assumed that the period of prescription based
on nonuser is 10 years, the very testimony of the BENEDICTO showed that it
was only in 1946 that he had the passageway walled in by constructing a
fence, and since the present action was filed in 1955, granting that article 631
of the Civil Code is applicable, the prescriptive period has not yet elapsed.
Nor can presumptive renunciation by HERAS of the use of the said
passageway be inferred. It would appear from the record that HERAS started
the construction of an apartment building on his parcel of land after the
demolition of his house in 1941, and that although interrupted by World War
II, construction was continued in 1955. Since it was patent from the
stipulation of facts that the easement in question is mainly a vehicular
passageway, the obvious need for such passageway to the rear portion of the
projected apartment building negates any presumptive renunciation on the
part of HERAS.
Moreover, the easement in this case is perpetual in character and was
annotated on all the TCTs issued in the series of transfers from Hedrick
through to the HERAS, and in the TCTs issued in the series of transfers from
Recto to BENEDICTO. Since there was nothing in the record that would point
to a mutual agreement between any of the predecessors-in-interest of the
petitioner and any of the predecessors-in-interest of the respondent nor
between the petitioner and the respondent themselves with respect to the
discontinuance or obliteration of the easement annotated on the
titles, the continued existence of the easement must be upheld and
respected.
The fact that the easement here was one of necessity did not
detract from the conclusion reached. For even assuming that with
the demolition of the house on HERAS' property the necessity for
the passageway ceased (a point traversed by HERAS who claims
that he demolished his house precisely in order to build an
apartment building in its place), still, as held in one case, “the fact
that an easement [by grant] may have also qualified as an
easement of necessity does not detract from its permanency as a
property right, which survives the termination of the necessity."
Indeed, when the easement in this case was established, the
parties unequivocally made provisions for its observance by all who
in the future might succeed them in dominion, and this was the
reason the permanent character of the easement was annotated
on each and all of the TCTs.
TAÑEDO vs. HON. BERNAD, ET AL.
GR No. L-66520. August 30, 1988
The alienation of the dominant and servient estates to
different persons is not one of the grounds for the
extinguishment of an easement.
FACTS
Private respondent ANTONIO CARDENAS was the owner of 2
contiguous parcels of land, Lot A (140 sq. m.) and Lot B (612 sq. m.)
situated in Cebu City which he had inherited from Lourdes
Cardenas.
On Lot A, an apartment building was constructed. On the
other hand, the improvements on Lot B consisted of (1) a 4-door
apartment of concrete and strong materials, (2) a 2-storey house of
strong materials, (3) a bodega of strong materials and (4) a septic
tank for the common use of the occupants of Lots A and B. A small
portion of the apartment building on Lot A also stands on Lot B.
In 1982, CARDENAS sold Lot A to herein petitioner EDUARDO
C. TAÑEDO. CARDENAS, on that same day, also mortgaged Lot B to
TAÑEDO as a security for the payment of a loan in the amount of
P10,000.00.
CARDENAS further agreed that he would sell Lot B only to
TAÑEDO in case he should decide to sell it, as the septic tank in Lot
B services Lot A and the apartment building on Lot A has a part
standing on Lot B. CARDENAS, however, sold Lot B to the co-private
respondent SPOUSES ROMEO AND PACITA SIM.
Upon learning of the sale, TAÑEDO offered to redeem the
property from ROMEO SIM but the latter refused. Instead, ROMEO
SIM blocked the sewage pipe connecting the building of TAÑEDO
built on Lot A, to the septic tank in Lot B. He also asked TAÑEDO to
remove that portion of his building encroaching on Lot B.
As a result, TAÑEDO, invoking the provisions of Art. 1622 of
the Civil Code, filed an action for legal redemption and damages,
with a prayer for the issuance of a writ of preliminary injunction,
before the RTC of Cebu against the SPOUSES ROMEO and PACITA
SIM, ANTONIO CARDENAS and his wife MAE LINDA CARDENAS, the
REGISTER OF DEEDS OF CEBU CITY, and BANCO CEBUANO, CEBU
CITY DEVELOPMENT BANK.
Answering, the SPOUSES ROMEO and PACITA SIM claimed
that they are the absolute owners of Lot B and that TAÑEDO had no
right to redeem the land under Art. 1622 of the Civil Code as the
land sought to be redeemed is much bigger than the land owned by
Tañedo.
CARDENAS, upon the other hand, admitted that he had
agreed to sell Lot B to Eduardo TAÑEDO and claimed by way of
cross-claim against the SPOUSES ROMEO and PACITA SIM, that the
Deed of Sale he had executed in favor of said spouses was only
intended as an equitable mortgage, to secure the payment of
amounts received by him from said spouses as petty loans.
In answer to the cross-claim, the SPOUSES ROMEO and
PACITA SIM insisted that the sale executed by CARDENAS of Lot -B
in their favor was an absolute one. In 1983, the SPOUSES ROMEO
and PACITA SIM filed motions to dismiss the complaint and the cross-claim,
for lack of cause of action.
Acting upon these motions and other incidental motions, the
respondent judge HON. JUANITO BERNAD dismissed both the complaint and
cross-claim.
Hence, the present recourse by TAÑEDO.
ISSUE
Whether or not easement in favor of TAÑEDO was extinguished.
RULING
NO, it was not extinguished.
The finding of the trial court that TAÑEDO's right to continue to use the
septic tank, erected on Lot B, ceased upon the subdivision of the land and its
subsequent sale to different owners who do not have the same interest,"
also appears to be contrary to law. Article 631 of the Civil Code enumerates
the grounds for the extinguishment of an easement. Said article provides:
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the
dominant and servient estates;
(2) By non-user for ten years; with respect to discontinuous
easements, this period shall be computed from the day on
which they period to be used; and, with respect to
continuous easements, from the day on which an act
contrary to the same took place;
(3) When either or both of the estates fall into such condition
that the easement cannot be used; but it shall revive if
the subsequent condition of the estates or either of them
should again permit its use, unless when the use becomes
possible, sufficient time for prescription has elapsed, in
accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of
the dominant and servient estates."
As can be seen from the above provisions, the alienation of the
dominant and servient estates to different persons is not one of the grounds
for the extinguishment of an easement.
ARTICLE 632: The form or manner of using the easement may
prescribe as the easement itself, and in the same way.
Easement may be extinguished thru prescription. It may be 10 years after
non-use or 10 yrs after impossibility of use
ARTICLE 633: If the dominant estate belongs to several persons in
common, the use of the easement by any one of them prevents
prescription with respect to the others.
LEGAL EASEMENTS
ARTICLE 634: Easements imposed by law have for their object either
public use or the interest of private persons.
Legal easements are those imposed by law and which have for their object
public use or the interest of private persons. With respect to public use, they
are governed by special laws like law on waters, irrigation laws and more
particularly now, the water code. With respect to the interest of private
persons, they are governed by the provisions of the Civil Code, the
agreement of the parties, or general or local laws.
Under 636, easements for private interest are governed by:
the agreement of the parties provided not prohibited by law nor prejudicial
to 3rd person;
in default of general or local laws and ordinances for general welfare may
govern;
In default, the civil code.
ARTICLE 635: All matters concerning easements established for
public or communal use shall be governed by the special laws and
regulations relating thereto, and, in the absence thereof, by the
provisions of this Title.

ARTICLE 636: Easements established by law in the interest of
private persons or for private use shall be governed by the
provisions of this Title, without prejudice to the provisions of
general or local laws and ordinances for the general welfare.
These easements may be modified be agreement of the
interested parties, whenever the law does not prohibit it or no
injury is suffered by a 3rd person
Kinds of legal easements
1) EASEMENTS PERTAINING TO WATERS:
A) easement of natural drainage (Art. 637);
B) natural drainage of buildings (Art. 674)
C) EASEMENTS ON RIPARIAN BANKS FOR NAVIGATION,
FLOATAGE AND SALVAGE (638)
D) EASEMENT OF A DAM (639, 647)
E) EASEMENT FOR DRAWING WATER OR FOR WATERING
ANIMALS (640, 641)
F) EASEMENT OF AQUEDUCT (643, 646)
G) EASEMENT FOR THE CONSTRUCTION OF STOP LOCK OR
SLUICE GATE
2) EASEMENT OF RIGHT OF WAY. Now for purposes of your bar
exam, the easement of right of way is a perennial source of
bar questions.
3) EASEMENT OF PARTY WALL
4) EASEMENT OF LIGHT AND VIEW
5) EASEMENT OF DRAINAGE
6) EASEMENT OF INTERMEDIATE DISTANCE
7) EASEMENT AGAINST NUISANCE
8) EASEMENT OF LITORAL OR SUBJACENT SUPPORT.
EASEMENTS RELATING TO WATERS
ARTICLE 637: Lower estates are obliged to receive the waters which
naturally and without the intervention of man descend from the
higher estates, as well as the stones or earth which they carry with
them.
The owner of the lower estate cannot construct works
which will impede this easement; neither can the owner of the
higher estate works which will increase the burden.
- The owner of the lower estate cannot prevent the flow
of water by erecting a wall at the boundary line to
prevent the flow of water. He cannot enclose his lands
with ditches and fences which would impede the flow of
water. But then he can make some kind of constructions
in order to control the descent of the water. He cannot
also construct works that would impede the easements
such as blocking dams which would divert the flow of
water to another tenement or estate.
- On the other hand, the dominant estate cannot also
make works or constructions that would increase the
velocity of the waters, or make the grounds more
impervious. That's the duty on the part of the dominant
estate.
ARTICLE 638: The banks of the rivers and streams, even in case they
are of private ownership, are subject throughout their entire length
and within a zone of three meters along their margins, to the
easement of public use in the general interest of navigation,
floatage, fishing and salvage.
Estates adjoining the banks of navigable of floatable
rivers are, furthermore, subject to the easement of towpath for the
exclusive service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of
private ownership, the proper indemnity shall first be paid.
- Estates adjoining the banks of navigable or floatable
rivers are, furthermore, subject to the easement of
towpath for the exclusive service of river navigation and
floatage.
- The width between the high water level and the low water level is
called the shore line or litoral line
- If the land is public ownership, there is no indemnity. If the land is
private ownership, there is indemnity
ARTICLE 639: Whenever for the diversion or taking of water from a
river or brook, or for the use of any other continuous or
discontinuous stream, it should be necessary to build a dam, and
the person who is to construct 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.
Abutment of a dam simply means to support a dam. If you want to draw
water from a river and there is a need to construct a dam but you are not the
owner of that land where the support of the dam will be constructed, you
may petition for an easement of abutment of a dam
ARTICLE 640: Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of public use in
favor of a town or village, after payment of the proper indemnity.
ARTICLE 641: Easements for drawing water and for watering
animals carry with them the obligation of the owners of the servient
estates to allow passage to persons and animals to the place where
such easements are to be used, and the indemnity shall include this
service.
- 2 easements under 640 and 641:
1. Principal easement - easement for drawing water and for watering
animals;
2. accessory easement - easement of a road right of way
REQUISITES for the principal easement
1. It must be for public use. Here it must be for public use and not
for private interest.
2. It must be in favor of a town or village.
3. Proper indemnity shall be paid to the servient owner.
- What are the REQUISITES for the accessory easement?
a. for public use
b. in favor of a town or village
c. the right must be sought not by one individual but by
the town
d. payment of the proper indemnity
- The right of way should have a maximum width of 10m which
cannot be altered by the owners of the servient estates although
the direction of the path may indeed be changed, provided the
use of the easement is not prejudiced.
- VIP: An easement of a road right of way does not carry with it the
easement of aqueduct. The right granted is merely that of ingress
and egress, not the right to draw water from a water source.
EASEMENT OF AQUEDUCT
ARTICLE 642: Any person who may wish to use upon his own estate
any water of which he can dispose shall have the right to make it
flow thru the intervening estates, with the obligation to indemnify
their owners, as well as the owners of the lower estates upon which
the waters may filter or descend.
ARTICLE 643: One desiring to make use of the right granted in the
preceding article is obliged:
To prove that he can dispose of the water and that it is sufficient for
the use for which it is intended.
To show that the proposed right of way is the most convenient and
the least onerous to 3rd persons.
To indemnify the owner of the servient estate in the manner
determined by the laws and regulations.
- REQUISITES how one can acquire an easement of aqueduct:
 1. He must prove that he can dispose of the water. So it
means that he really needs the water;
2. The water is sufficient to which it is intended;
3. To show that the proposed right of way is the most
convenient and the least onerous to 3rd persons;
4. To indemnify the owner of the servient estate.
BANZON vs. BANZON
GR No. 27296. October 8, 1927
Mariano undoubtedly had a right to a compulsory
easement of aqueduct, upon payment of indemnity,
since, although he was not the owner of the waters of
the Talisay River, he could dispose of 50 liters of the
same per second, by virtue of the grant from the
Director of Public Works.
FACTS
Petitioner TRINIDAD GONZALEZ was the judicial administratrix
of the INTESTATE ESTATE OF JOSE B. BANZON.
In 2 occasions, respondents B. BANZON, URSULA BANZON and
the latter's husband, ALBERTO AQUINO, without the knowledge or
consent of TRINIDAD, opened 2 irrigation canals crossing the land
belonging to the INTESTATE ESTATE OF JOSE B. BANZON.
The first was in 1919, when MARIANO, ET AL. opened a canal
1,000 meters long, 2 meters wide, and 2 meters deep across said
land, from east to west, for the purpose of drawing water from the
Talisay River to irrigate their lands.
The second was in 1988, when MARIANO, ET AL. opened
another canal almost parallel to the former, 1,000 meters long, 3
meters wide, and 2 meters deep, on the same land on the north
side of the former one, to irrigate their lands with water from the
aforesaid Talisay River.
As a consequence of the opening of said canals, TRINIDAD
filed an action against MARIANO, ET AL. She claimed that she had
suffered damages from loss of crops, disintegration and unleveling
of land and therefore prayed that MARIANO, ET AL. be ordered to
close and refill skid canals and to indemnify her for damages.
On the other hand, MARIANO, ET AL. denied TRINIDAD’s
allegations. They claimed that JOSE B. BANZON had aided in the
construction of the first canal in the year 1905, as well as in the
maintenance of the same, as an integral part of an irrigation system
connected with his land and that he benefited therefrom during his
life and after his death, by his children, including TRINIDAD. They
also averred that the second canal was built by respondent
MARIANO B. BANZON, brother of JOSE B. BANZON, with the
knowledge and consent of the latter and his wife. MARIANO then
prayed that he be awarded the right to maintain and preserve the
aforesaid second canal, upon paying the proper indemnity.
The trial court ruled in favor of MARIANO, ET AL. Hence, this
petition by TRINIDAD. TRINIDAD argued that inasmuch as the two
canals in question did not appear in the OCT of the land belonging
to the INTESTATE ESTATE OF JOSE B. BANZON, said lot was free of
said easements and the defendants hd no right to continue using
them
As to the second canal, however, MARIANO filed a
counterclaim alleging that he has obtained from the Director of
Public Works a grant to use 50 liters of water per second from the
Talisay River to irrigate his lands, and, in accordance with the
provision, of Article 642 (the Article 557) in connection with Article
643 (then Article 558) of the Civil Code, he asked that he be
authorized to open, maintain and preserve a canal similar to the
second one mentioned on TRINIDAD’s land upon payment of the
proper indemnity, alleging that the place where said canal passed
was the most convenient and least onerous to third parties, and
that there was no other place more appropriate and less
prejudicial.
ISSUES
(1) Whether or not the right of voluntary easement of
aqueduct in the property belonging to the INTESTATE ESTATE OF
JOSE BANZON in favor of the MARIANO, E TAL. before its
registration under the Torrens system had been extinguished by such
registration.
(2) Whether or not MARIANO had the right, after paying the proper
indemnity, to conduct water from the Talisay River through the land
belonging to the INTESTATE ESTATE OF JOSE B. BANZON, by opening up a
canal similar to the second one here in question.
RULING
(1) YES, it had already been extinguished.
According to Sec. 39 of Act No. 496, as amended by Act No. 2011, the
registration of a servient estate under the Torrens system extinguishes all
easements to which it is subject and which have not been noted on the
certificate of title issued in accordance with the proper decree of registration.
It will be noted that the law mades no distinction as to the kind of easement
and it is well known that there are two kinds of easements-legal
and voluntary.
The two canals in question were opened by the defendants across JOSE
BANZON's and with his knowledge and consent, and are therefore voluntary
easements. And as their existence didnot appear in the OCT of the property
belonging to the INTESTATE ESTATE OF JOSE BANZON, these easements were
extinguished and MARIANO, ET AL. had lost their right to the use of said
canals.
(2) YES, MARIANO had such right.
The text of Article 642 (then Article 557) of the Civil Code is as follows:
ART. 642. Any person who wishes to use upon his own land
any water of which he may have the control is entitled to take it
through the intervening estates, subject to the obligation of
indemnifying the owners thereof, as well as the owners of any
lower estates upon which the water may filter or descend.
MARIANO undoubtedly had a right to a compulsory easement of
aqueduct, upon payment of indemnity, since, although he was not the owner
of the waters of the Talisay River, he could dispose of 50 liters of the same
per second, by virtue of the grant from the Director of Public Works. This
may be inferred from the provision of article 125 of the Law of Waters of
August 3, 1866, which authorizes the owner, of the land on which it is sought
to impose the compulsory easement of aqueduct, to object when the
applicant is not the owner or grantee of the water.
To enjoy the right granted by the above quoted Article 642 (then Article
557) of the Civil Code, the requisites established in Article 643 (then Article
558) of the same Code must be complied with, which are as follows:
Any person desiring to make use of the right granted in the
foregoing article shall be obliged
1. To prove that he has a right to dispose of the water, and
that it is sufficient for the use to which it is destined;
2. To show that the right of way he requests is the most
convenient and least onerous to third persons;
3. To indemnify the owner of the servient estate in the
manner prescribed by the laws and regulations.
MARIANO had complied with these requirements. It had been proved
that he was granted the use of 50 liters of water per second from the Talisay
River, a sufficient amount to irrigate his land. He also had proved that the
passage opened by him was the most convenient and least onerous to third
parties, and that he wais willing to indemnify the INTESTATE ESTATE OF JOSE
B. BANZON, owner of the servient estate, as the courts may determine.
The trial court had fixed the sum of P36.72 as the indemnity to be paid
by the MARIANO to the INTESTATE ESTATE OF JOSE B. BANZON.
GONZALES vs. DE DIOS
GR No. L-3099. May 21, 1951
Under Article 642, he phrase "of which he may have the control"
should be interpreted in connection with article 643(l) which
means that he has a right to dispose of the water. This was
interpreted to mean one who has obtained from the government a
grant to use water from a river.
FACTS
Petitioner CIPRIANA GONZALES was the owner of a fishpond situated in
the barrio of Bambang in Bulacan. Said fishpond was also adjacent to the
fishpond of respondents PURIFICACION, GUITTERMO, EUSTACIO and
FAUSTINA DE DIOS.
 The only source of water of GONZALES’ fishpond was the Kay
Pateng River, to which it had neither ingress nor egress, because it
had been completely cut off from it by the fishpond of the DE DIOS.
After the several attempts made by her to obtain from the DE DIOS
a right of way to and from said river to furnish a source of water to
her fishpond proved futile, she filed the present action in the CFI of
Bulacan.
Upon agreement of the parties, the court designated one
Felipe Asuncion, a surveyor, to investigate the premises and study
the most convenient place through which an aqueduct may be
constructed for the supply of water needed by the fishpond of
GONZALES, who accordingly investigated the property and
submitted his report.
The CFI rendered judgment in favor of GONZALES. It declared
that GONZALES had a right of passage for water from the river Kay
Pateng to her fishpond, on the northwest side of the dyke by
constructing a canal 8t meters wide and about 100 hundred meters
long alongside the old dike at her expense and upon payment of
P798.16 as just compensation including consequential damages.
Aggrieved, DE DIOS appealed to the Court of Appeals which
also affirmed the CFI decision. It held that the claim of GONZALES
found support in the provisions of articles 118 to 125 of the Law of
Waters of 1966 and Article 642 (then Article 557) and Article 643
(then Article 558) of the Civil Code, which were also relied upon by
the court a quo. There was nothing in the Law of Waters and the
Civil Code, which prohibited the use of water for purposes other
than those mentioned in said laws. GONZALES had proven that she
had the right to draw water from Kay Pateng River to make her
fishpond as productive as the other surrounding fishponds.
Hence, this appeal by DE DIOS.
ISSUE
Whether or not GONZALES was entitled to a right of voluntary
easement of aqueduct.
RULING
YES, she was. The Court of Appeals was correct in stating that
Articles 642 and 643 of the Civil Code could be invoked in support
of the claim of GONZALES.
Article 642 provides that "any person who wishes to use
upon his own land any water of which he may have the control is
entitled to take it through the intervening estates, subject to the
obligation of indemnifying the owners thereof." The phrase "of
which he may have the control" should be interpreted in
connection with article 643(l) which means that he has a right to
dispose of the water. This was interpreted to mean one who has
obtained from the government a grant to use water from a river.
The use to which the water may be applied must also be
interpreted in the same way: that the water be sufficient for the
use intended (643[l]).
To enjoy the right granted by article 642 of the Civil Code, the
requisites established in article 643 of the same code must be
complied with.
If a person who has obtained from the Government a grant
to use water from a river for irrigation was given the right to
construct a canal over the intervening lands of other private
owners upon payment of indemnity, no valid reason is seen for
not granting the same privilege to the GONZALES who desired to
draw water from a river for the use of her fishpond.
A fishpond comes within the classification of agricultural land
and is regarded as an important source of revenue. It is generally
constructed in low lands or swampy places and draw its breadth of
life from brooks and rivers. It is just as rich and valuable as any
piece of agricultural land and in some regions it is regarded as the
main source of wealth. It is an undertaking to be encouraged and
promoted, for it contributes to the economic development of the
people. Our law should be interpreted in a sense that may give it
life if it can be done without doing violence to reason or to any
rule of statutory construction.
There can, therefore, be no doubt with regard to the right of
GONZALES to draw the water she needed for her fishpond through
the land of DE DIOS if she has obtained the necessary permit to
use the water from the Government. The law requires that this
permit be obtained from the Director of Public Works. While there was no
proof to this effect, at least this matter was not an issue in this case. This
point was not disputed.
ARTICLE 644: The easement of aqueduct of private interest cannot
be imposed in buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing.
ARTICLE 645: The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or from
building over the aqueduct in such manner as not to cause the
latter any damage, or render necessary repairs and cleanings
impossible.
ARTICLE 646: For legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, even though the flow of
the water may not be continuous, or its use depends upon the
needs of the dominant estate or upon a schedule of alternate days
of hours.
1. Easement of aqueduct – the right to make water flow thru
intervening estates in order that one may make use of said
waters.
2. The existence of Right of Way does not necessarily include the
easement of aqueduct.
SUMMARY: AQUEDUCT
1. Indemnity in aqueduct – It must be paid to the owners of
intervening estates and to the owners of lower estates;
2. If for private interest, the easement cannot be imposed on
existing bldgs., courtyards, annexes, outhouses, orchards, or
gardens.
3. There must be proof that:
4. He can dispose of the water;
5. That the water intended is sufficient;
6. That the proposed course is the most convenient and least
onerous;
7. Permission from proper administrative agencies
8. Payment of indemnity.
ARTICLE 647: One who for the purpose if irrigating or improving his
estate, has to construct a stop lock or sluice gate in the bed of the
stream from which the water is to be taken, may demand that the
owners of the banks permit its construction, after payment of
damages, including those caused by the new easement to such
owners and to the other irrigators.
CONSTRUCTION OF A STOP LOCK OR SLUICE GATE:
REQUISITES:
1. purpose must be for irrigation or improvement;
2. the construction must be on the estate of another;
3. damages must be paid;
4. 3rd persons should not be prejudiced.
ARTICLE 648: The establishment, extent, form and conditions of the
servitudes of waters, to which this section refers, shall be governed
by the special laws relating thereto, insofar as no provisions
therefore is made in this Code.
VASLINO vs. ADRIANO
GR No. L-37409 May 23, 1988.
Water rights, such as the right to use a drainage ditch for
irrigation purposes, which are appurtenant to a parcel of land,
pass with the conveyance of the land, although not specifically
mentioned in the conveyance.
FACTS
In 1960, the petitioner NICOLAS VALISNO-appellant file against the
ADRIANO-appellee an action for damages docketed as Civil Case No. 3472 in
the Court of First Instance of Nueva Ecija. The complaint alleged that the
 Petitioner NICOLAS VALISNO was the registered owner and
actual possessor of a 557,949-square-meter parcel of land in La
Fuente, Santa Rosa, Nueva Ecija. VALISNO bought the land from the
respondent FELIPE ADRIANO’s sister, Honorata ADRIANO Francisco
in 1959. The land sold to VALISNO, which was planted with
watermelon, peanuts, corn, tobacco, and other vegetables,
adjoined the land of ADRIANO on the bank of the Pampanga River.
Both parcels of land had been inherited by Honorata and ADRIANO
from their father, Eladio Adriano. At the time of the sale of the land
to VALISNO, the land was irrigated by water from the Pampanga
River through a canal about seventy (70) meters long, traversing
the appellee's land.
In 1959, ADRIANO leveled a portion of the irrigation canal so
that VALISNO was deprived of the irrigation water and was
prevented from cultivating his 57-hectare land.
VALISNO then filed in the Bureau of Public Works and
Communications a complaint for deprivation of water rights. A
decision was rendered in 1960, ordering ADRIANO to reconstruct
the irrigation canal. However, Instead of restoring the irrigation
canal, the ADRIANO asked for a reinvestigation of the case by the
Bureau of Public Works and Communications. A reinvestigation was
granted.
In the meantime, VALISNO rebuilt the irrigation canal at his
own expense because his need for water to irrigate his watermelon
fields was urgent.
Thereafter, VALISNO filed a complaint for damages in the CFI
claiming that he suffered damages when he failed to plant his fields
that year (1960) for lack of irrigation water and for the expenses he
made to reconstruct the canal on ADRIANO's land.
ADRIANO, in his answer to the damage suit, admitted that he
leveled the irrigation canal on his land, but he averred: that neither
his late father nor his sister Honorata possessed water rights for
the land which she sold to the VALISNO. He averred that he applied
for water rights for his land in 1956 and obtained the same in 1958;
and that he had a perfect right to level his land for his own use
because he merely allowed his sister to use his water rights when
she still owned the adjacent land. He set up a counterclaim
damages.
In 1961, the Secretary of Public Works and Communications
reversed the Bureau's decision by issuing a final resolution
dismissing VALISNO's complaint. The Secretary held that Eladio
Adriano's water rights, which had been granted in 1923 ceased to
be enjoyed by him in 1936 or 1937, when his irrigation canal
collapsed. His non-use of the water right since then for a period of
more than 5 years extinguished the grant by operation of law,
hence the water rights did not form part of his hereditary estate
which his heirs partitioned among themselves. VALISNO, as vendee
of the land which Honorata received from her father's estate did
not acquire any water rights with the land purchased.
In 1966, as to the case for damages filed by VALISNO, the
claim for damages and counterclaim was dismissed. The CFI held
that the VALISNO had no right to pass through the ADRIANO's land
to draw water from the Pampanga River. Under Section 4 of the
Irrigation Law, controversies between persons claiming a right to
water from a stream are within the jurisdiction of the Secretary of
Public Works and his decision on the matter is final, unless an
appeal is taken to the proper court within 30 days. The court may
not pass upon the validity of the decision of the Public Works
Secretary collaterally. Furthermore, there was nothing in the
VALISNOs evidence to show that the resolution was not valid.
Hence, this appeal. VALSINO argued that while the trial court
correctly held that the Secretary of Public Works may legally decide
who between the parties is entitled to apply for water rights under
the Irrigation Act, it erred in ruling that the Secretary has authority
to hear and decide the VALISNO’s claim for damages for the
ADRIANO's violation of his right to continue to enjoy the easement
of aqueduct or water through the ADRIANO's land under Articles
642, 643, and 646 of the Civil Code.
ISSUE
Whether or not ADRIANO should grant VALISNO the
continued and unimpeded use of the irrigation ditch traversing his
land in order to obtain water from the Pampanga River to irrigate VALISNO's
land.
RULING
YES, VALISNO was entitled to said right.
Under Article 648 of the new Civil Code, the establishment, extent and
consitions of the servitudes of waters, shall be governed by the special laws
relating thereto (the irrigation law and the Spanish Law of Waters of August
3, 1866, specifically Article 122 thereof) insofar as no provision is made in the
Civil Code.
The existence of the irrigation canal on ADRIANO's land for the passage
of water from the Pampanga River to Honorata's land prior to and at the time
of the sale of Honorata's land to the VALISNO was equivalent to a title for the
vendee of the land to continue using it under Article 624, which provides
that:
Article 624. The existence of an apparent sign of easement
between two estates, established or maintained by the owner of both
shall be considered, should either of them be alienated, as a title in
order that the easement may continue actively and passively, unless at
the time the ownership of the two estates is divided, the contrary
should he provided in the title of conveyance of either of them, or the
sign aforesaid should be removed before the execution of the deed.
This provision shall also apply in case of the division of a thing owned in
common by two or more persons.
This provision was lifted from Article 122 of the Spanish Law of Waters
which provided:
Article 122. Whenever a tract of irrigated land which previously
received its waters from a single point is divided through inheritance,
sale or by virtue of some other title, between two or more owners, the
owners of the higher estates are under obligation to give free passage
to the water as an easement of conduit for the irrigation of the lower
estates, and without right to any compensation therefore unless
otherwise stipulated in the deed of conveyance." (Art. 122, Spanish
Law of Waters of August 3, 1866.)
No enlightened concept of ownership can shut out the idea of
restrictions thereon, such as easements. Absolute and unlimited dominion is
unthinkable, inasmuch as the proper enjoyment of property requires mutual
service and forbearance among adjoining estates.
The deed of sale in favor of VALISNO included the "conveyance and
transfer of the water rights and improvements" appurtenant to Honorata's
property. By the terms of the Deed of Absolute Sale, the vendor Honorata
sold, ceded, conveyed and transferred to Dr. Nicolas VALISNO all "rights, title,
interest and participations over the parcel of land above-described, together
with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 500-
1500 GPM, with Serial No. 5415812 and 1 set of suction pipe and discharge of
pipe with elbow, nipples, flanges and foot valves," and the water rights and
such other improvements appertaining to the property subject of this sale.
According to VALISNO, the water right was the primary consideration for his
purchase of Honorata's property, for without it the property would be
unproductive.
Water rights, such as the right to use a drainage ditch for irrigation
purposes, which are appurtenant to a parcel of land, pass with the
conveyance of the land, although not specifically mentioned in the
conveyance. The purchaser's easement of necessity in a water ditch running
across the grantor's land cannot be defeated even if the water is supplied by
a third person. The fact that an easement by grant may also have qualified as
an easement of necessity does not detract from its permanency as property
right, which survives the determination of the necessity.
As an easement of waters in favor of VALISNO has been established, he
is entitled to enjoy it free from obstruction, disturbance or wrongful
interference, such as the ADRIANO's act of levelling the irrigation canal to
deprive him of the us of water from the Pampanga River.
EASEMENT OF RIGHT OF WAY
ARTICLE 649: The owner, or any person who by virtue of a real right
may cultivate or use any immovable, which is surrounded by other
immovables pertaining to other persons and without adequate
outlet to a public highway, is entitled to demand d a right if way
thru the neighboring estate, after payment of the proper indemnity.
Should this easement be established in such a manner
that its use may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of the
damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded by others and
for the gathering of its crops thru the servient estate without
permanent way, the indemnity shall consist in the payment of the
damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor’s own acts.
- Easement of right way is an easement or privilege by
which one person or a particular class of persons is
allowed to pass over another’s land, usually thru one
particular path or line.
 REQUISITES:
1. property is surrounded by the estates of others;
2. there is no adequate outlet to a public highway;
3. there must be payment of proper indemnity;
4. it must be established at a point least prejudicial for the
servient estate;
5. the isolation must not be due to the proprietor's own
acts (Dionisio case)
6. demandable by the owner or one with a real right like a
usufructuary.
- If these requirements; if these are not present, there
could be no establishment of easement of right of way.
- Remedy of the owner of an estate which is isolated to a
public highway.
- To file a petition for an easement of right of way.
- If none of the circumstances are present, easement may
be created through a contract between the parties for
the establishment of a RRW.
ARTICLE 650: The easement of right of way shall be established 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 the shortest.
ARTICLE 651: The width of the easement of right of was shall be
that which is sufficient for the needs of the dominant estate and
may accordingly be changed from time to time.
ARTICLE 652: Whenever a piece of land acquired by sale, exchange
or partition, is surrounded by other states of the vendor, exchanger,
or co-owner, he shall be obliged to grant a right of way without
indemnity.
In case of a simple donation, the donor shall be
indemnified by the donee for the establishment of the right of way.
ARTICLE 653: In the case of the preceding article, if it is the land of
the grantor that becomes isolated, he may demand a right of way
after paying an indemnity. However, the donor shall not be liable
for indemnity.
RULES IF GRANTOR’S OR GRANTEE’S LAND IS ENCLOSED
1. If the ENCLOSING estate is that of the grantor (seller or
co-owner but not donor), the grantee does nor pay
indemnity for the easement.
2. If the ENCLOSED estate is that of the grantor (seller, co-
owner but not donor), the grantor must indemnify.
Problems:
A sold to B a parcel of land surrounded by other
estates owned by A (Estate 1, 2, and 3). A gave B an outlet thru
Estate 1 without indemnity since the purchase price presumably
already included in the right to the easement. Later, the outlet thru
Estate 1 became useless because the highway to which it led was
closed. If B demands another outlet, is he allowed to get one? If so,
must he pay indemnity? Yes, he can demand another outlet under
649 and must therefore pay. He cannot take advantage of Art 652 because
after all, the outlet had already been granted once, that is, when the sale was
made. This time, the necessity arises not because of the sale but because of
necessity itself.
A owns 2 estates. He sold the first (having access to the
highway) to B. later, he sold the 2nd (without access) to C. So that C can again
access, he must pass thru B’s land. Does C have to pay indemnity to B? Yes
because after all, B did not sell the land to C, and clearly Art. 652 cannot
apply.
COSTABELLA vs. CA
GR No. 80511. January 25,1991
Hence, when there is already an existing adequate outlet from the
dominant estate to a public highway, even if the said outlet, for
one reason or another, be inconvenient, the need to open up
another servitude is entirely unjustified. For to justify the
imposition of an easement or right of way, "there must be a real,
not a fictitious or artificial necessity for it."
FACTS
Petitioner COSTABELLA CORP. owned real estate properties in Lapu-
Lapu City, on which it had constructed a resort and hotel. Adjoining to this
land, were the lots of private respondent KATIPUNAN LUMBER CO., INC., ET
AL.
Before COSTABELLA CORP. began the construction of its beach hotel,
KATIPUNAN LUMBER, ET AL., in going to and from their respective properties
and the provincial road, passed through a passageway which traversed
COSTABELLA CORP.'s property.
In 1981, the COSTABELLA CORP. closed the passageway when it began
the construction of its hotel but nonetheless opened another route across its
property through which the KATIPUNAN LUMBER, ET AL., as in the past, were
allowed to pass.
In 1982, when COSTABELLA CORP. undertook the construction of the
second phase of its beach hotel, it fenced its property thus closing even the
alternative passageway and prevented KATIPUNAN LUMBER, ET AL. from
traversing any part of its lot.
Hence, KATIPUNAN LUMBER, ET AL filed an action for injunction with
damages was filed against the COSTABELLA CORP. before the CFI of Cebu for
the latter’s deprivation of the former of the road right of way. They alleged
that the passage way was an "ancient road right of way" that had been
existing before World War II and since then had been used by them, the
community, and the general public, either as pedestrians or by means of
vehicles, in going to and coming from LapuLapu City and other parts of the
country.
KATIPUNAN LUMBER, ET AL. likewise alleged that the COSTABELLA
CORP. had constructed a dike on the beach fronting the latter's property
without the necessary permit, obstructing the passage of the residents and
local fishermen, and trapping debris and flotsam on the beach. They also
claimed that the debris and flotsam that had accumulated prevented them
from using their properties for the purpose for which they had acquired
them. The complaint this prayed for the trial court to order the re-opening of
the original passageway across the COSTABELLA CORP.'s property as well as
the destruction of the dike.
On the other hand, COSTABELLA CORP. denied the existence of an
ancient road through its property and counter-averred, among others, that it
and its predecessors-in-interest had permitted the temporary, intermittent,
and gratuitous use of, or passage through, its property by KATIPUNAN
LUMBER CO., INC., ET AL. and others by mere tolerance and purely as an act
of neighborliness. At any rate, COSTABELLA CORP. alleged that KATIPUNAN
LUMBER, ET AL. were not entirely dependent on the subject passageway as
they had another existing and adequate access to the public road through
other properties. With respect to the dike it allegedly constructed, the
COSTABELLA CORP. stated that what it built was a breakwater on the
foreshore land fronting its property and not a dike as claimed by the
KATIPUNAN LUMBER, ET AL. Moreover, contrary to the KATIPUNAN LUMBER,
ET AL.' accusation, the said construction had benefitted the community
especially the fishermen who used the same as mooring for their boats
during low tide. The quantity of flotsam and debris which had formed on the
KATIPUNAN LUMBER, ET AL.'s beach front on the other hand were but the
natural and unavoidable accumulations on beaches by the action of the tides
and movement of the waves of the sea.
 In 1984, the CFI ruled in favor of KATIPUNAN LUMBER, ET AL.
It held that KATIPUNAN LUMBER, ET AL. had acquired a vested right
over the passageway in controversy based on its long existence and
its continued use and enjoyment not only by the KATIPUNAN
LUMBER, ET AL., but also by the community at large. The
COSTABELLA CORP. in so closing the said passageway, had
accordingly violated the private respondent's vested right. Thus,
the trial court ordered the COSTABELLA CORP. to open the disputed
passage way and make it available to KATIPUNAN LUMBER, ET AL.
and the general public at all times free of any obstacle thereof,
unless the it shall provide another road equally accessible and
convenient.
Both parties elevated the trial court's decision to the Court of
Appeals, with COSTABELLA CORP. questioning the alleged "vested
right" of the KATIPUNAN LUMBER, ET AL. over the subject
passageway, and KATIPUNAN LUMBER, ET AL. assailing the
dismissal of their complaint insofar as their prayer for the
demolition of the COSTABELLA CORP.'s "dike" is concerned.
The Court of Appeals found that the trial court’s decision
finding KATIPUNAN LUMBER, ET AL. to had acquired a vested right
over the passageway in question by virtue of prescription was
without legal basis. It pointed out that an easement of right of way
is a discontinuous one which, under Article 622 of the New Civil
Code, may only be acquired by virtue of a title and not by
prescription. Nevertheless, the court ruled that in the interest of
justice and in its exercise of its equity jurisdiction, it found no
reason for not to treat the easement sought by KATIPUNAN
LUMBER, ET AL. , as one that is not dependent upon the claims of
the parties but a compulsory one that is legally demandable by the
owner of the dominant estate from the owner of the servient
estate. Thus, it granted KATIPUNAN LUMBER, ET AL. the right to an
easement of way on the COSTABELLA CORP.'s property,using the
passageway in question, unless the COSTABELLA CORP. should
provide another passageway equally accessible and convenient as
the one it closed.
Hence, COSTABELLA CORP. filed a petition for review with the
Supreme Court. It argued that the appellate court’s decision was
contrary to the provisions of Articles 649 and 650 of the Civil Code
on easements and the prevailing jurisprudence on the matter.
ISSUES
Whether or not the right of voluntary easement of aqueduct
in the property belonging to the INTESTATE ESTATE OF JOSE
BANZON in favor of the MARIANO, E TAL. before its registration
under the Torrens system had been extinguished by such
registration.
RULING
It is already well-established that an easement of right of way,
as is involved here, is discontinuous and as such can not be
acquired by prescription. Insofar therefore as the appellate court
adhered to the foregoing precepts, it stood correct. Unfortunately,
after making the correct pronouncement, the respondent Appellate
Court did not order the reversal of the trial court's decision and the
dismissal of the complaint after holding that no easement had been
validly constituted over the COSTABELLA CORP.'s property. Instead,
the Appellate Court went on to commit a reversible error by
considering the passageway in issue as a compulsory easement
which the KATIPUNAN LUMBER, ET AL., as owners of the
"dominant" estate, may demand from the COSTABELLA CORP. the
latter being the owner of the "servient" estate.
Under Articles 649 and 650 of the Civil Code that, the owner
of the dominant estate may validly claim a compulsory right of way
only after he has established the existence of four requisites, to
wit:
(1) the (dominant) estate is surrounded by other
immovables and is without adequate outlet to a public
highway;
(2) after payment of the proper indemnity,
(3) the isolation was not due to the proprietor's own acts;
and
(4) the right of way claimed is at a point least prejudicial to
the servient estate.
Additionally, the burden of proving the existence of the foregoing pre-
requisites lies on the owner of the dominant estate.
Here, there was absent any showing that KATIPUNAN LUMBER, ET AL.
had established the existence of the 4 requisites mandated by law. For one,
they failed to prove that there is no adequate outlet from their respective
properties to a public highway highway. On the contrary, as alleged by the
COSTABELLA CORP. in its answer to the complaint, and confirmed by the
appellate court, there was another outlet for KATIPUNAN LUMBER, ET AL. to
the main road."18
Thus, the respondent Court of Appeals likewise admitted that "legally
the old road could be closed." Yet, it ordered the re-opening of the old
passageway on the ground that "the existing outlet (the other outlet) was
inconvenient to the plaintiff." On this score, it is apparent that the Court of
Appeals lost sight of the fact that the convenience of the dominant estate has
never been the gauge for the grant of compulsory right of way. To be sure,
the true standard for the grant of the legal right is "adequacy." Hence, when
there is already an existing adequate outlet from the dominant estate to a
public highway, even if the said outlet, for one reason or another, be
inconvenient, the need to open up another servitude is entirely unjustified.
For to justify the imposition of an easement or right of way, "there must be a
real, not a fictitious or artificial necessity for it."
Further, the KATIPUNAN LUMBER, ET AL. failed to indicate in their
complaint or even to manifest during the trial of the case that they were
willing to indemnify fully the COSTABELLA CORP. for the right of way to be
established over its property. Neither have the KATIPUNAN LUMBER, ET AL.
been able to show that the isolation of their property was not due to their
personal or their predecessors-ininterest's own acts. Finally, the KATIPUNAN
LUMBER, ET AL. failed to allege, much more introduce any evidence, that the
passageway they sought to be reopened was at a point least prejudicial to
the COSTABELLA CORP.
Considering that the COSTABELLA CORP. operates a hotel and beach
resort in its property, it must undeniably maintain a strict standard of
security within its promises. Otherwise, the convenience, privacy, and safety
of its clients and patrons would be compromised. That indubitably will doom
the COSTABELLA CORP.'s business. It is therefore of great importance that
the claimed right of way over the COSTABELLA CORP.'s property be located at
a point least prejudicial to its business.
Servitudes of right of way are an ancient concept, which date back to
the iter, actus, and via of the Romans. They are demanded by necessity, that
is, to enable owners of isolated estates to make full use of their properties,
which lack of access to public roads has denied them. Under Article 649 of
the Civil Code, they are compulsory and hence, legally demandable, subject
to indemnity and the concurrence of the other conditions above-referred to.
As also earlier indicated, there must be a real necessity therefor, and
not mere convenience for the dominant estate. Hence, if there is an existing
outlet, otherwise adequate, to the highway, the "dominant" estate can not
demand a right of way, although the same may not be convenient. Of course,
the question of when a particular passage may be said to be "adequate"
depends on the circumstances of each case.
The isolation of the dominant estate is also dependent on the particular
need of the dominant owner, and the estate itself need not be totally
landlocked. What is important to consider is whether or not a right of way is
necessary to fill a reasonable need therefor by the owner.
But while a right of way is legally demandable, the owner of the
dominant estate is not at liberty to impose one based on arbitrary choice.
Under Article 650 of the Code, it shall be established upon two criteria:
(1) at the point least prejudical to the servient state; and
(2) where the distance to a public highway may be the shortest.
According, however, to one commentator, "least prejudice" prevails over
"shortest distance."29 Yet, each case must be weighed according to its
individual merits, and judged according to the sound discretion of the court.
"The court," says Tolentino, "is not bound to establish what is the shortest; a
longer way may be established to avoid injury to the servient tenement, such
as when there are constructions or walls which can be avoided by a
roundabout way, or to secure the interest of the dominant owner, such as
when the shortest distance would place the way on a dangerous decline.
ENCARNACIO vs. CA
GR No. 77628. March 11, 1991
 Under the Art. 651, it is the needs of the dominant
property which ultimately determine the width of the
passage and these need, may vary from time to time.
Since the easement to be established in favor of
ENCARNACION is of a continuous and permanent
nature, the indemnity shall consist of the value of the
land occupied and the amount of the damage caused to
the servient estate pursuant to Article 649 of the Civil
Code.
FACTS
Petitioner TOMAS ENCARNACION and private respondent
HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN were the
owners of 2 adjacent estates situated in Buco, Talisay, Batangas
ENCARNACION owned the dominant estate which has an area
of 2,690 square meters. HEIRS OF VIUDA DE SAGUN co-owned the
405-square meter servient. In other words, the servient estate
stood between the dominant estate and the national road.
Prior to 1960, when the servient estate was not yet enclosed
with a concrete fence, persons going to the national highway just
crossed the servient estate at no particular point. However, in 1960
when HEIRS OF VIUDA DE SAGUN constructed a fence around the
servient estate, a road path measuring 25 meters long and about a
meter wide was constituted to provide access to the highway. One-
half meter width of the path was taken from the servient estate
and the other one-half met" portion was taken from another lot
owned by one Mamerto Magsino. No compensation was asked and
none was given for the portions constituting the pathway.
It wan also about that time that ENCARNACION started his
plant nursery business on his land where he also had his abode. He
would use said pathway as passage to the highway for his family
and for his customers. ENCARNACION's plant nursery business
through sheer hard work flourished and with that, it became more
and more difficult for ENCARNACION to haul the plants and garden
soil to and from the nursery and the highway with the use of
pushcarts In January, 1984, ENCARNACION was able to buy an
owner-type jeep which he could use for transporting his plants
However, that jeep could not pass through the road path and an he
approached the servient estate owners (Aniceta Vda. de Sagun and
Elena Romero Vda de Sagun) and requested that they sell to him
one and onehalf (1 1/2) meters of their property to be added to the
existing pathway an as to allow passage for his jeepney. To his utter
consternation, his request was turned down by the two widows
and further attempts at negotiation proved futile.
Thhereafter, ENCARNACION then instituted an action with the
RTC of Batangas to seek the issuance of a writ of easement of a
right of way over an additional width of at least 2 meters over the
DE SAGUNA's 406-square-meter parcel of land.
In 1985, the lower court dismissed the complaint of
ENCARNACION. It held that it was clear that ENCARNACION had 2
outlets to the highway – one through DE SEGUNA’s land on a one
meter wide passageway, which was bounded an both sides by
concrete walls and second, through the dried river bed eighty
meters away. It ruled that ENCARNACION had an adequate outlet
to the highway through the dried river bed where his jeep could
pass.
ISSUE
Whether or nor ENCARNACION was entitled to an additional
easement of right of way.
RULING
YES, he was entitled to an additional easement of right of way
of twenty five (25) meters long by one and one-half (1½) meters
ande over the servient estate or a total area of 62.5 square meters
after payment of the proper indemnity.
While there was a dried river bed less than 100 meters from
the dominant tenement, that access is grossly inadequate.
Generally, the right of way may he demanded when: (1) when
there is absolutely no access to a public highway, and (2) when,
even if there is one, it is difficult or dangerous to use or is grossly
insufficient.
In the present case, the river bad route is traversed by a semi-concrete
bridge and there was no ingress nor egress from the highway. For the jeep to
reach the level of the high-way, it must literally jump 4 to 5 meters up.
Moreover, during the rainy season, the river bed was impassable due to the
floods. Thus, it can only he used at certain times of the year. With the
inherent disadvantages of the river bed which make passage difficult, if not
impossible, it in if there were no outlet at all.
Where a private property has no access to a public road, it has the right
of easement over adjacent servient estates as a matter of law.
With the non-availability of the dried river bed as an alternative route
to the highway, we transfer our attention to the existing pathway which
straddles the adjoining properties of the DE SAGUN HEIRS and Mamerto
Magsino.
The courts below have taken against ENCARNACION his candid
admission in open court that he needed a wider pathway for the convenience
of his business and family. We cannot begrudge ENCARNACION for wanting
that which is convenient but certainly that should not detract from the more
pressing consideration that there in a real and compelling need for such
servitude in his favor Article 651 of the Civil Code provides that
"(t)he 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."
This is taken to mean that under the law, it is the needs of the dominant
property which ultimately determine the width of the passage and these
need, may vary from time to time.
When ENCARNACION started out as a plant nursery operator, he and
his family could easily make do with a few pushcarts to tow the plants to the
national highway but the business grew and with it, the need for the use of
modern meant of conveyance or transport. Manual hauling of plants and
garden mail and use of pushcarts have become extremely cumbersome and
physically taxing. To force ENCARNACION to leave his jeepney in the highway,
exposed to the elements and to the risk of theft simply because it could not
pass through the improvised pathway, is sheer pigheadedness on the part of
the servient estate and can only be counter productive for all the people
concerned. ENCARNACION should not be denied a passageway wide enough
to accomodate his jeepney since that is a reasonable and necessary aspect of
the plant nursery business.
We are well aware that an additional one and me-half (1 ½) meters in
the width of the pathway will reduce the servient estate to only about 342.5
square meters But ENCARNACION has expressed willingness to exchange an
equivalent portion of his land to compensate HEIRS OF VIUDA DE SAGUN for
their loss. Since the easement to be established in favor of ENCARNACION is
of a continuous and permanent nature, the indemnity shall consist of the
value of the land occupied and the amount of the damage caused to the
servient estate pursuant to Article 649 of the Civil Code.
FRANCISCO vs. IAC
GR No. 63996. September 15, 1989
But the law makes it amply clear that an owner cannot, as RAMOS
has done, by his own act isolate his property from a public
highway and then claim an easement of way through an adjacent
estate.
FACTS
Private respondent CRESENCIO RAMOS’ Lot 860-A used to be a part of
Lot 860 of the Malinta Estate, which was owned by Cornelia and Frisca Dila
and had a frontage along Parada Road measuring 51.90 meters. Adjoining Lot
860 was Lot 226, owned by petitioner EUSEBIO FRANCISCO, which also had a
frontage along Parada Road of 62.10 meters.
In 1947, Cornelia and Frisca Dila executed a deed by which each of the 3
undivided 1/3 portion of the land was given to:
1. Epifania Dila, a niece
2. children of a deceased sister, Anacleta Dila,
3. Cornelia Dila.
Then, the parties agreed to partition the property, as follows:
1. to Epifania Dila – Lot 860-B (5,291 sq. m.)
2. to the heirs of Anacleta Dila – Lot 860-D (5,291 sq. m.)
3. to Cornelia Dila – Lot 860-A (2,204 sq. m.) and Lot 860-C (3,086 sq.
m.)
The former co-owners evidently overlooked the fact that, by reason of
the subdivision, Lot 860-B of Epifania Dila came to include the entire frontage
of what used to be Lot 860 along Parada Road, and thus effectively
isolated from said road the other lots, i.e., Lots 860-A and 860-C of
Cornelia Dila, and Lot 860-D of the children of Anacleta Dila.
Later, Cornelia sold Lot 860-A to the sisters Marcosa,
Margarita, and Irinea Eugenio and in 1971, the Eugenio Sisters sold
the land to private respondent CRESENCIO J. RAMOS.
In 1972, after having set up a piggery on his newly acquired
property, RAMOS had his lawyer write to FRANCISCO, owner of the
adjoining lot, Lot 266-to ask for a right of way through the latter's
land. Negotiations thereafter had however failed to bring about a
satisfactory arrangement. FRANCISCO's proposal for an exchange of
land at the rate of one (1) square meter from him to three (3)
square meters from RAMOS, as was supposedly the custom in the
locality, was unacceptable to RAMOS.
Later that year, RAMOS succeeded through the intercession of
Councilor Tongco of Valenzuela in obtaining a three meter wide
passageway through Lot 860-B of Epifania Dila. Yet in August, 1973,
he inexplicably put up a ten-foot high concrete wall on his lot and
thereby closed the very right of way granted to him across Lot 860-
B. It seemed that what he wished was to have a right of passage
precisely through FRANCISCO's land, considering this to be more
convenient to him, and he did not bother to keep quiet about his
determination to bring suit, if necessary, to get what he
wanted.FRANCISCO learned of RAMOS' intention and reacted by
replacing the barbedwire fence on his lot along Parada Road with a
stone wall.
As a result, RAMOS filed a complaint against FRANCISCO with
the CFI of Bataan, praying that the latter be ordered to remove his
stone fence and keep his lot open for RAMOS' use.
The court appointed a commissioner who conducted an
ocular inspection of the lots in question. On the basis of the
commissioner's report, the Court granted RAMOS a temporary right
of way over FRANCISCO’s property, ordering the latter to
immediately remove all obstructions existing in order that RAMOS
may have a free access to his property.
Later, the Court rendered a decision adversely against
FRANCISCO. It granted RAMOS the right of way he prayed over
FRANCISCO’s property upon the payment of indemnity. The same
decision was affirmed by the Court of Appeals.
Hence, this appeal. FRANCISCO argues that under Art. 649 of
the Civil Code, RAMOS was not entitled for the easement of right of
way because
1. FRANCISCO's Lot 266 may not be considered a servient
estate subject to a compulsory easement of right of way in
favor of Ramos' Lot 860-A; and
2. Courts are not empowered to establish judicial easements.
ISSUE
Whether or not RAMOS was entitled to a legal easement of a
right of way under Article 649.
RULING
NO, he was not entitled to a legal easement.
In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision Inc.,
the Supreme Court held that a compulsory easement of way cannot
be obtained without the presence of four (4) requisite provided for
in Articles 649 and 650 of the Civil Code, which the owner of the
dominant tenement must establish, to wit:
1. That the dominant estate is surrounded by other
immovables and has no adequate outlet to a public
highway (Art. 649, par. 1)
2. After payment of proper indemnity (Art. 649, par. 1,
end);
3. That the isolation was not due to acts of the proprietor
of the dominant estate; and
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 the
shortest. (Art. 650)
In the present case, RAMOS had already been granted access
to the public road (Parada Road) through the other adjoining Lot
860-B owned by Epifania Dila and this, at the time he was negotiating with
petitioner for the similar easement over the latter's Lot 266 that he now
claims-inexplicably gave up that right of access by walling off his property
from the passageway thus established.
That there was such a passageway was also confirmed by another
witness, Parada Barrio Captain Fausto Francisco, one of those who had
earlier tried to bring FRANCISCO and RAMOS to an agreement about the
proposed right of way through the property of the former. This witness
declared, as already stated, that after the negotiations had been stalled by
the failure of the parties to agree on the terms of a proposed land exchange
that would have given Ramos access to Parada Road, RAMOS had been able
to obtain right of passage to the same public road over a 3-meter wide
portion of Lot 860-B owned by Epifania Dila through the intercession of
Councilor Tongco of Valenzuela. The presence of the tire marks indicating
that the portion of Lot 860-B where they were found had been used as a
passageway was also brought to the attention of the Trial Court at the ocular
inspection conducted, with the parties present or duly represented.
The evidence, also uncontradicted, is that said passageway was 2.76
meters wide, or wide enough to accommodate a truck. The surveyor who at
the instance of petitioner made a survey of the premises, shortly after
RAMOS had filed his complaint, verified the existence of said passageway
from the presence of tire marks found on the scene and indicated on the
sketch plan he prepared the path that it took from said RAMOSt's Lot 860-A
through Lot 860-B to Parada Road.2
The evidence is, therefore, persuasively to the effect that the RAMOS
had been granted an adequate access to the public highway (Parada Road)
through the adjacent estate of Epifania Dila even as he was trying to
negotiate a satisfactory agreement with FRANCISCO for another passageway
through the latter's property. If at the time he filed suit against the
FRANCISCO, such access (through the property of Epifania Dila) could no
longer be used, it was because he himself had closed it off by erecting a
stone wall on his lot at the point where the passageway began for no reason
to which the record can attest except to demonstrate the isolation of his
property alleged in his complaint.
But the law makes it amply clear that an owner cannot, as RAMOS has
done, by his own act isolate his property from a public highway and then
claim an easement of way through an adjacent estate. The third of the cited
requisites: that the claimant of a right of way has not himself procured the
isolation of his property had not been met-indeed the respondent had
actually brought about the contrary condition and thereby vitiated his claim
to such an easement. It will not do to assert that use of the passageway
through Lot 860-B was difficult or inconvenient, the evidence being to the
contrary and that it was wide enough to be traversable by even a truck, and
also because it has been held that mere inconvenience attending the use of
an existing right of way does not justify a claim for a similar easement in an
alternative location.
FLORO vs. LLENADO
GR No. 75723. June 2, 1995
Failing to establish the existence of the prerequisites under
Articles 649 and 650 of the Civil Code, private respondent
Llenado's bid for a compulsory easement of right of way over
Road Lots 4 and 5 of the Floro Park Subdivision must fail.
FACTS
Petitioner SIMEON FLORO was the owner of a piece of land known as
the Floro Park Subdivision situated in Meycauayan, Bulacan. The subdivision
has its own egress and ingress to and from the MacArthur Highway by means
of its Road Lot 4 and the PNR level crossing.
Private respondent ORLANDO A. LLENADO, on the other hand, was the
registered owner of 2 parcels of land, known as the Llenado Homes
Subdivision. Prior to its purchase by LLENADO from the owner Francisco de
Castro, the land was known as the Emmanuel Homes Subdivision, a duly
licensed and registered housing subdivision in the name of Soledad Ortega. It
was bounded on the South by the 5 to 6 meter-wide Palanas Creek, which
separated it from the Floro Park Subdivision, and on the west by ricelands
belonging to Marcial Ipapo, Montaos and Guevarra
 LLENADO HOMES did not have any existing road or passage to
the MacArthur Highway. However, a proposed access road
traversing the idle riceland of Marcial Ipapo had been specifically
provided in the subdivision plan of the Emmanuel Homes
Subdivision, which was duly approved by the defunct Human
Settlement Regulatory Commission (now Housing and Land Use
Regulatory Board).
In 1983, the LLENADO sought and were granted permission by
the FLORO to use Road Lots 4 and 5 of the Floro Park Subdivision as
passageway to and from MacArthur Highway. Later, however,
FLORO barricaded Road Lot 5 with a pile of rocks, wooden posts
and adobe stones, thereby preventing its use by LLENADO.
Their request for the reopening of Road Lot 5 having been
denied, LLENADO instituted in 1983 a complaint before the RTC of
Malolos, Bulacan, against FLORO for Easement of Right of Way.
After hearing and ocular inspection, the trial court granted a
writ of preliminary mandatory injunction in favor of LLENADO. The
court also ordered FLORO to open the road by removing the rocks
and wooden posts and/or to remove the barricade on the subject
road of the Floro Park Subdivision. He was also prohibited from
doing or performing any act or acts which would prevent LLENADO
from passing through the subject subdivision road.
In the meantime, LLENADO died and was substituted by his
wife Wenifreda T. Llenado as administratrix of his estate and as
legal guardian of their 4 minor children.
In 1984, the trial court dismissed the case and lifted the writ
of preliminary mandatory injunction previously issued. It held that
LLENADO was not entitled to an easement of right of way. On
appeal to the Court of Appeals, the appellate court reversed the
decision of the lower court. It granted the easement for a right of
way in favor of LLENADO.
Hence, this appeal by FLORO.
ISSUES
(1) Whether or not FLORO granted LLENADO a voluntary
easement of right of way when the former granted the latter
passage through his property for a limited time, without
compensation.
(2) Whether or not LLENADO can demand a compulsory
easement of right of way over the existing roads of the adjacent
subdivision instead of developing his subdivision's proposed access
road as provided in his duly approved subdivision plan.
RULING
(1) NO, LLENADO was not granted a voluntary easement for a
right of way.
It is not disputed that sometime in March 1983, FLORO
granted the LLENADOS verbal permission to pass through the Floro
Park Subdivision in going to and from the MacArthur Highway.
Whether such permission, as claimed by Floro, was for the month
of March only, without compensation and as a neighborly gesture
for the purpose merely of enabling the Llenados to install stone
monuments (mojones) on their land, or was in relation to the
easement of right of way granted in their favor, as insisted by the
Llenados, the fact remains that no such contract of easement of
right of way was actually perfected between FLORO and LLENADO.
Both ORLANDO and WENIFREDA LLENADO testified that the
conditions of the easement of right of way were still to be drawn
up by FLORO's lawyer. Thus, no compensation was agreed upon,
and none was paid, for the passage through Floro's property during
the month of March.
However, when WENIFREDA saw FLORO in the evening of
April 1983 to negotiate for the reopening of Road Lot 5 and FLORO
laid down his conditions for the requested reopening and
presumably for the requested easement of right of way, ORLANDO
rejected said conditions for being onerous.
The use of Road Lots 4 and 5 by the LLENADOS during the
month of March was by mere tolerance of FLORO pending the
negotiation of the terms and conditions of the right of way. This is
evident from the testimony of WENIFREDA that "they said to us to
go on while they are preparing for the papers" and that "We can
use that for a while, while they were making for the papers."
Although such use was in anticipation of a voluntary easement of
right of way, no such contract was validly entered into by reason of the
failure of the parties to agree on its terms and conditions. Thus, LLENADOS
cannot claim entitlement to a right of way through the Floro Park Subdivision
on the basis of a voluntary easement.
(2) NO, LLENADO was not entitled to a compulsory easement.
For the Llenados to be entitled to a compulsory servitude of right of
way under the Civil Code, the preconditions provided under Articles 649 and
650 thereof must be established. These preconditions are:
1. that the dominant estate is surrounded by other immovables and
has no adequate outlet to a public highway (Art. 649, par. 1);
2. after payment of proper indemnity (Art. 649, par. 1);
3. that the isolation was not due to acts of the proprietor of the
dominant estate (Art. 649, last par.); and,
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 the
shortest (Art. 650).
The burden of proving the existence of the prerequisites to validly claim
a compulsory right of way lies on the owner of the dominant estate. We find
that the LLENADOS have failed in this regard. Failing to establish the
existence of the prerequisites under Articles 649 and 650 of the Civil Code,
private respondent Llenado's bid for a compulsory easement of right of way
over Road Lots 4 and 5 of the Floro Park Subdivision must fail.
Requisite #1 was absent: that it is surrounded by other immovables and has
no adequate outlet to a public highway.
Significantly, when Orlando Llenado filed the complaint for legal
easement under Articles 649 and 650 of the Civil Code, he focused his
argument on the absence of any road, other than the closed road of the Floro
Park Subdivision, as his means of ingress and egress to and from his property.
However, he omitted to state that there is a proposed access road through
the lpapo property.
There being an existing right of way over the lpapo property, the first
requirement for a grant of a compulsory easement of right of way over the
Floro Park Subdivision has not been met.
Requisite #2 was absent: that there must be payment of proper indemnity
Prepayment, as we used the term means the delivery of the proper
indemnity required by law for the damage that might be incurred by the
servient estate in the event the legal easement is constituted. The fact that a
voluntary agreement upon the extent of compensation cannot be reached by
the parties involved, is not an impediment to the establishment of such
easement. Precisely, the action of the dominant estate against the servient
estate should include a prayer for the fixing of the amount which may be due
from the former to the latter."
In the case at bench, no proof was presented by private respondent
LLENADO that he complied with this requirement. The complaint for
easement of right of way filed by him in the lower court did not contain a
prayer for the fixing of the amount that he must pay FLORO in the event that
the easement of right of way be constituted. Thus, the existence of the
second requisite has likewise not been established.
Requisite #3 was absent: that the isolation is not the result of its own acts;
There can be no denying that the isolation of the Llenado Homes
Subdivision is the doing of its owner/developer/applicant. It appears that the
access road indicated in the Plan of the Emmanuel Homes Subdivision and
the Llenado Homes Subdivision for which a right of way over the Ipapo
property was procured, was merely for the sake of securing an approval of
the proposed development plan. There were no proofs of actual work having
been done to construct a road, even just a dirt road, over the right of way
that would connect Road Lot 3 of the Llenado Homes Subdivision to the
MacArthur Highway. LLENADo admitted that the Ipapo riceland was no
longer being cultivated and there was already a fence made of adobe wall
constructed on it. Indications are that it has already been abandoned as a
ricefield. There was no reason for private respondent's failure to develop the
right of way except the inconvenience and expenses it would cost him.
Hence, the third requisite has not been met.
Requisite #4 was absent: that the right of way claimed is at the point least
prejudicial to the servient estate
The Court takes cognizance of the fact that, instead of developing the
proposed access road, LLENADO applied for the conversion of Lot 14 of Block
6 into a road lot to connect it with Road Lot 5 of the Floro Park
Subdivision, citing as reason therefor, that the amendment sought
would create a "more adequate and practical passage" from the
Llenado Homes Subdivision to the MacArthur National Highway
and vice-versa. The "convenience" of using Road Lots 4 and 5 of the
Floro Park Subdivision will not suffice, however, to justify the
easement in favor of private respondent.
In order to justify the imposition of the servitude of right of
way, there must be a real, not a fictitious or artificial necessity for
it. Mere convenience for the dominant estate is not what is
required by law as the basis for setting up a compulsory easement.
Even in the face of a necessity, if it can be satisfied without
imposing the servitude, the same should not be imposed.
This easement can also be established for the benefit of a
tenement with an inadequate outlet, but not when the outlet is
merely inconvenient. Thus, when a person has already established
an easement of this nature in favor of his tenement, he cannot
demand another, even if the first passage has defects which make
passage impossible, if those defects can be eliminated by proper
repairs.
QUIEMEN vs. CA
GR No. 112331. May 29, 1996
IN EASEMENT OF RIGHT OF WAY that easement where
the way is shortest and will cause least prejudice shall
be chosen. However, if the two circumstances do not
concur in a single tenement, the way where damage will
be least shall be used even if not the shortest route. This
is so because least prejudice prevails over shortest
distance. This means that the court is not bound to
establish what is the shortest distance; a longer way
may be adopted to avoid injury to the servient estate,
such as when there are constructions or walls which can
be avoided by a round about way, or to secure the
interest of the dominant owner, such as when the
shortest distance would place the way on a dangerous
decline.
FACTS
Petitioner ANASTACIA QUIMEN together with her brothers
Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of
property situated in Pandi, Bulacan. They agreed to subdivide the
property equally among themselves, as they did, with the shares of
Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road.
The share of ANASTACIA, located at the extreme left. Behind
ANASTACIA’s lot was the lot of her brother Antonio.
In 1982, private respondent YOLANDA OLIVEROS purchased
Lot No. 1448-B-6-A from her uncle Antonio through her aunt
ANASTACIA who was then acting as his administratrix. According to
YOLANDA, when ANASTACIA offered her the property for sale she
was hesitant to buy as it had no access to a public road. But
ANASTACIA prevailed upon her to buy the lot with the assurance
that she would give her a right of way on her adjoining property for
P200.00 per square meter.
Thereafter, YOLANDA constructed a house on the lot she
bought using as her passageway to the public highway a portion of
ANASTACIA's property. But when YOLANDA finally offered to pay
for the use of the pathway ANASTACIA refused to accept the
payment. In fact she was thereafter barred by ANASTACIA from
passing through her property.
In 1986, YOLANDA purchased the other lot of Antonio, located
directly behind the property of her parents who provided her a
pathway gratis et amore between their house, extending about
nineteen (19) meters from the lot of YOLANDA behind the sari-sari
store of Sotero, and ANASTACIA's perimeter fence. The store is
made of strong materials and occupies the entire frontage of the
lot measuring four (4) meters wide and nine meters (9) long.
Although the pathway leads to the municipal road it is not
adequate for ingress and egress. The municipal road cannot be
reached with facility because the store itself obstructs the path so
that one has to pass through the back entrance and the facade of the store to
reach the road.
In 1987, YOLANDA filed an action against ANASTACIA, praying that she
be given a right of way. In 1991, the court dismissed the complaint for lack of
cause of action, explaining that the right of way through Sotero's property
was a straight path and to allow a detour by cutting through ANASTACIA's
property would no longer make the path straight. Hence the trial court
concluded that it was more practical to extend the existing pathway to the
public road by removing that portion of the store blocking the path as that
was the shortest route to the public road and the least prejudicial to the
parties concerned than passing through ANASTACIA's property.
On appeal by YOLANDA, the Court of Appeals granted her a right of way
over ANASTACIA’s property because it would cause the least damage and
detriment to the servient estate.
Hennce, this appeal by ANASTACIA. Incidentally, ANASTACIA denied
having promised private respondent a right of way She alleged that in holding
that the one-meter by five-meter passage way proposed by private
respondent is the least prejudicial and the shortest distance to the public
road was wrong. She insisted that passing through the property of
YOLANDA's parents was more accessible to the public road than to make a
detour to her property and cut down the avocado tree standing thereon. She
strongly maintained that the proposed right of way was not the shortest
access to the public road because of the detour and that moreover, she wass
likely to suffer the most damage as she derives a net income of P600.00 per
year from the sale of the fruits of her avocado tree, and considering that an
avocado has an average life span of seventy (70) years, she expects a
substantial earning from it.
ISSUE
Whether or not YOLANDA was entitled to a right of way through
ANASTACIA’s property.
RULING
YES, she was. The voluntary easement in favor of YOLANDA, which
petitioner now denies but which the court is inclined to believe, has in fact
become a legal easement or an easement by necessity constituted by law.
As defined, an easement is a real right on another's property, corporeal
and immovable, whereby the owner of the latter must refrain from doing or
allowing somebody else to do or something to be done on his property, for
the benefit of another person or tenement. It is jus in re aliena, inseparable,
indivisible and perpetual, unless extinguished by causes provided by law. A
right of way in particular is a privilege constituted by covenant or granted by
law to a person or class of persons to pass over another's property when his
tenement is surrounded by realties belonging to others without an adequate
outlet to the public highway. The owner of the dominant estate can demand
a right of way through the servient estate provided he indemnifies the owner
thereof for the beneficial use of his property.
The conditions sine qua non for a valid grant of an easement of right of
way are:
1. the dominant estate is surrounded by other immovables without
an adequate outlet to a public highway;
2. the dominant estate is willing to pay the proper indemnity;
3. the isolation was not due to the acts of the dominant estate; and,
4. the right of way being claimed is at a point least prejudicial to the
servient estate.
A cursory examination of the complaint of respondent Yolanda for a
right of way13 readily shows that--
[E] ven before the purchase of the said parcels of land the plaintiff was
reluctant to purchase the same for they are enclosed with permanent
improvements like a concrete fence and store and have (sic) no egress
leading to the road but because of the assurance of the defendant that
plaintiff will be provided one (1) meter wide and five (5) meters long right of
way in the sum of P200.00 per square meter to be taken from Anastacia's lot
at the side of a concrete store until plaintiff reach(es) her father's land,
plaintiff was induced to buy the aforesaid parcels of land x x x. That the
aforesaid right of way is the shortest, most convenient and the least onerous
leading to the road and being used by the plaintiff's predecessors- in- interest
from the very inception x x x.
The evidence clearly shows that the property of private respondent is
hemmed in by the estates of other persons including that of petitionerthat
she offered to pay P200.00 per square meter for her right of way as agreed
between her and petitioner: that she did not cause the isolation of her
property; that the right of way is the least prejudicial to the servient
estate.14 These facts are confirmed in the ocular inspection report
of the clerk of court, more so that the trial court itself declared that
"[t]he said properties of Antonio Quimen which were purchased by
plaintiff Yolanda Quimen Oliveros were totally isolated from the
public highway and there appears an imperative need fior an
easement of right of way to the public highway."
Petitioner finally insists that respondent court erroneously
concluded that the right of way proposed by private respondent is
the least onerous to the parties. We cannot agree. Article 650 of
the New Civil Code explicitly states that the casement of right of
way shall be established 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 the
shortest. The criterion of least prejudice to the servient estate must
prevail over the criterion of shortest distance although this is a
matter of judicial appreciation. While shortest distance may
ordinarily imply least prejudice, it is not always so as when there
are permanent structures obstructing the shortest distance; while
on the other hand, the longest distance may be free of obstructions
and the easiest or most convenient to pass through. In other
words, where the easement may be established on any of several
tenements surrounding the dominant estate, the one where the
way is shortest and will cause the least damage should be chosen.
However, as elsewhere stated, if these two (2) circumstances
do not concur in a single tenement, the way which will cause the
least damage should be used, even if it will not be the shortest.16
This is the test.
The trial court found that Yolanda's property was situated at
the back of her father's property and held that there existed an
available space of about nineteen (19) meters long which could
conveniently serve as a right of way between the boundary line and
the house of Yolanda's father; that the vacant space ended at the
left back of Sotero's store which was made of strong materials; that
this explained why Yolanda requested a detour to the lot of
Anastacia and cut an opening of one (1) meter wide and five (5)
meters long to serve as her right of way to the public highway. But
notwithstanding its factual observations, the trial court concluded,
although erroneously, that Yolanda was not entitled to a right of
way on petitioner's property since a detour through it would not
make the line straight and would not be the route shortest to the
public highway.
In applying Art. 650 of the New Civil Code, respondent Court
of Appeals declared that the proposed right of way of Yolanda,
which is one (1) meter wide and five (5) meters long at the extreme
right of petitioner's property, will cause the least prejudice and/or
damage as compared to the suggested passage through the
property of Yolanda's father which would mean destroying the sari-
sari store made of strong materials. Absent any showing that these
findings and conclusion are devoid of factual support in the
records, or are so glaringly erroneous, this Court accepts and
adopts them. As between a right of way that would demolish a
store of strong materials to provide egress to a public highway, and
another right of way which although longer will only require an
avocado tree to be cut down, the second alternative should be
preferred. After all, it is not the main function of this Court to
analyze or weigh the evidence presented all over again where the
petition would necessarily invite calibration of the whole evidence
considering primarily the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their relation to
each other, and the probabilities of the situation. In sum, this Court
finds that the decision of respondent appellate court is thoroughly
backed up by law and the evidence.
SPOUSES DE LA CRUZ vs. RAMISCAL
GR No. 137882. February 04, 2005
Voluntary easements are established by the will of the
owners. Additionally, the burden of proving the
existence of the foregoing pre-requisites lies on the
owner of the dominant estate. In the present case, it
was not proven that RAMISCAL, the owner, voluntarily
granted a right of way in favor of the SPOUSES DE LA CRUZ.
FACTS
Respondent OLGA RAMISCAL was the registered owner of a parcel of
land located at the corner of 18th Avenue and Boni Serrano Avenue, Murphy,
Quezon City. Petitioner SPOUSES ELIZABETH and ALFREDO DE LA CRUZ were
occupants of a parcel of land, with an area of 85 sq. m., located at the back of
RAMISCAL’s property, which was registered in the name of Concepcion de la
Peña, mother of petitioner ALFREDO DE LA CRUZ.
RAMISCAL owned a 1.10-meter wide by 12.60-meter long strip of land,
which was being used by the SPOUSES DE LA CRUZ as their pathway to and
from 18th Avenue, the nearest public highway from their property. SPOUSES
DE LA CRUZ had enclosed the same with a gate, fence, and roof.
In 1976, RAMISCAL leased her property, including the building
thereon, to Phil. Orient Motors, which also owned a property adjacent to
that of RAMISCAL’s. In 1995, Phil. Orient Motors sold its property to San
Benito Realty. After the sale, Engr. Rafael Madrid prepared a relocation
survey and location plan for both contiguous properties of RAMISCAL and
San Benito Realty. It was only then that RAMISCAL discovered that the
aforementioned pathway being occupied by SPOUSES DE LA CRUZ was part
of her property.
Immediately, RAMISCAL through a letter, demanded that SPOUSES DE
LA CRUZ demolish the structure constructed by them on said pathway
without her knowledge and consent. However, the letter was unheeded by
the SPOUSES DE LA CRUZ. RAMISCAL the former referred the matter to the
Barangay for conciliation proceedings, but the parties arrived at no
settlement.
Hence, RAMISCAL filed a complaint with the RTC for the demolition of
the structure allegedly illegally constructed by SPOUSES DE LA CRUZ on her
property. RAMISCAL asserted that SPOUSES DE LA CRUZ had an existing right
of way to a public highway other than the current one they were using, which
she owns.
On the other hand, SPOUSES DE LA CRUZ admitted having used a 1.10-
meter wide by 12.60-meter long strip of land on the northern side of
RAMISCAL’s property as their pathway to and from 18th Avenue, the nearest
public highway from their property, but claimed that such use was with the
knowledge of RAMISCAL.
The SPOUSES DE LA CRUZ averred that they were made to sign a
document stating that they waived their right to ask for an easement along
the eastern side of RAMISCAL’s property towards Boni Serrano Avenue,
which document was among those submitted in the application for a building
permit by a certain “Mang Puling,” the person in charge of the construction
of the motor shop. That was why, according to SPOUSES DE LA CRUZ, the
perimeter wall on RAMISCAL’s property was constructed at a distance of
1.10-meters offset and away from RAMISCAL’s property line to provide a
passageway for them to and from 18th Avenue. They maintained in that
RAMISCAL knew all along of the 1.10-meter pathway and had, in fact,
tolerated their use thereof.
In 1997, the RTC ruled in favor of RAMISCAL. The appeal of the
SPOUSES DE LA CRUZ with the Court of Appeals was also dismissed. Hence,
this petition for review.
ISSUE
Whether or not SPOUSES DE LA CRUZ was entitled to a legal easement
of a right of way under Article 649.
RULING
NO, they were not entitled to a legal easement. Under Art. 649. “The
owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is 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.”
The conferment of a legal easement of right of way under Article 649
is subject to proof of the following requisites:
1. it is surrounded by other immovables and has no adequate outlet
to a public highway;
2. payment of proper indemnity;
3. the isolation is not the result of its own acts;
4. the right of way claimed is at the point least prejudicial to the
servient estate; and
 5. to the extent consistent with the foregoing rule, where
the distance from the dominant estate to a public
highway may be the shortest.
The first 3 requisites were not obtaining in the instant case.
Requisite #1 was absent: that it is surrounded by other immovables
and has no adequate outlet to a public highway.
The trial court found from the records that Concepcion de la
Peña had provided SPOUSES DE LA CRUZ with an adequate ingress
and egress towards Boni Serrano Avenue.
During trial, RAMISCAL presented a TCT covering the
property denominated as Lot 1-B in the name of Concepcion de la
Peña, mother of petitioner herein ALFREDO DE LA CRUZ. The TCT
revealed that a portion of Lot 1-B, consisting of 85 sq. m. and
denominated as Lot 1-B-2, is being occupied by SPOUSES DE LA
CRUZ. To prove that SPOUSES DE LA CRUZ had an existing right of
way to a public highway other than the pathway which RAMISCAL
owns, the latter adduced in evidence a copy of the plan of a
subdivision survey for Concepcion de la Peña and Felicidad Manalo
prepared in 1965 and subdivision plan for Concepcion de la Peña
prepared in 1990. These documents establish an existing 1.50-
meter wide alley, identified as Lot 1-B-1, on the lot of Concepcion
de la Peña, which serves as passageway from the lot being
occupied by SPOUSES DE LA CRUZ (Lot 1-B-2), to Boni Serrano
Avenue.
In fact, petitioner ELIZABETH DE LA CRUZ herself admitted
knowledge of the existence of the subdivision plan of Lot 1-B
prepared for Concepcion de la Peña by Engr. Julio Cudiamat in
1990. The Subdivision Plan subdivided Lot 1-B into three portions,
namely:
(1) Lot 1-B-1, which is an existing alley, consisting
of 59.60 square meters, towards Boni Serrano
Avenue;
(2) Lot 1-B-2, consisting of 85.20 square meters,
which is being occupied by SPOUSES DE LA
CRUZ; and
(3) Lot 1-B-3, consisting also of 85.20 square
meters, which is being occupied by the sister of
petitioner Alfredo dela Cruz.
From petitioner Elizabeth de la Cruz’s own admission, Lot 1-B-
1 was intended by the owner, Concepcion de la Peña, to serve as an
access to a public highway for the occupants of the interior portion
of her property.
Requisite #2 was absent: that there must be payment of proper
indemnity
Inasmuch as SPOUSES DE LA CRUZ have an adequate outlet to a
public highway (Boni Serrano Avenue), they have no right to insist
on using a portion of RAMISCAL’s property as pathway towards 18th
Avenue and for which no indemnity was being paid by them.
Requisite #3 was absent: that the isolation is not the result of its
own acts;
Petitioner Elizabeth de la Cruz claimed before the trial court
that although there was indeed a portion of land allotted by
Concepcion de la Peña to serve as their ingress and egress to Boni
Serrano Avenue. However, they stated that they can no longer use
the same because de la Peña had constructed houses on it. As
found by the trial court, the isolation of SPOUSES DE LA CRUZ’
property was due to the acts of Concepcion de la Peña, who is
required by law to grant a right of way to the occupants of her
property.
Article 649 of the Civil Code provides that the easement of
right of way is not compulsory if the isolation of the immovable is
due to the proprietor’s own acts. To allow defendants access to
plaintiff’s property towards 18th Avenue simply because it is a
shorter route to a public highway, despite the fact that a road right
of way, which is even wider, although longer, was in fact provided
for them by Concepcion de la Peña towards Boni Serrano Avenue
would ignore what jurisprudence has consistently maintained
through the years regarding an easement of right of way, that
“mere convenience for the dominant estate is not enough to serve
as its basis.
To justify the imposition of this servitude, there must be a real, not a
fictitious or artificial necessity for it.” In Francisco vs. Intermediate Appellate
Court, 177 SCRA 527, it was likewise held that a person who had been
granted an access to the public highway through an adjacent estate cannot
claim a similar easement in an alternative location if such existing easement
was rendered unusable by the owner’s own act of isolating his property from
a public highway, such as what Concepcion de la Peña allegedly did to her
property by constructing houses on the 1.50 meter wide alley leading to Boni
Serrano Avenue. And, if it were true that defendants had already bought Lot
1-B-2, the portion occupied by them, from Concepcion de la Peña, then the
latter is obliged to grant defendants a right of way without indemnity.
We hasten to add that under the above-quoted Article 649 of the Civil
Code, it is the owner, or any person who by virtue of a real right may cultivate
or use any immovable surrounded by other immovable pertaining to other
persons, who is entitled to demand a right of way through the neighboring
estates. In this case, SPOUSES DE LA CRUZ fell short of proving that they are
the owners of the supposed dominant estate. Nor were they able to prove
that they possess a real right to use such property. The SPOUSES DE LA CRUZ
claim to have acquired their property, denominated as Lot 1-B-2, from
Concepcion de la Peña, mother of defendant Alfredo de la Cruz, who owns
Lot 1-B-3, an adjacent lot. However, as earlier noted, the trial court found
that the title to both lots is still registered in the name of Concepcion de la
Peña under TCT No. RT-56958 (100547). Neither were SPOUSES DE LA CRUZ
able to produce the Deed of Sale evidencing their alleged purchase of the
property from de la Peña. Hence, by the bulk of evidence, de la Peña, not
SPOUSES DE LA CRUZ, is the real party-in-interest to claim a right of way
although, as explained earlier, any action to demand a right of way from de la
Peña’s part will not lie inasmuch as by her own acts of building houses in the
area allotted for a pathway in her property, she had caused the isolation of
her property from any access to a public highway.
ARTICLE 654: If the right of way is permanent, the necessary repairs
shall be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed by the said
owner to the proprietor of the servient estate.
1. Eventhough permanent, the path belongs to the servient estate,
and he pays all the taxes.
2. But the dominant estate:
a. Should pay for the repairs;
b. Should pay proportionate share of the taxes to the
servient estate.
ARTICLE 655: If the right of way is granted to a surrounded estate
ceases to be necessary because its owner has joined it to another
abutting on a public road, the owner of the servient estate may
demand that the easement be extinguished, returning what he may
have received by way of indemnity. The interest on the indemnity
shall be deemed to be in payment of rent for the use of the
easement.
The same rule shall be applied 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.
.
CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY:
1. opening of a new road;
2. joining the dominant estate to another (that is the latter becomes
also the property of the dominant owner) which abuts, and
therefore has access to the public highway. But the new access
must be adequate and convenient.
3. The extinguishment is not automatic because the law says that
the servient owner may demand. It follows that if he chooses not
to demand, the easement remains and he has no duty to refund
the indemnity.
4. This rule applies only to the legal or compulsory easement of right
of way, NOT to a voluntary one.
ARTICLE 656: If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to carry
materials thru the estate of another, or to raise thereon scaffolding
or other objects necessary for the work, the owner of such estate
shall be obliged to permit the act, after receiving payment of the
proper indemnity for the damage caused him.
TEMPORARY EASEMENT OF RIGHT OF WAY:
- The easement here is necessarily only temporary;
nonetheless proper indemnity must be given.
- Indispensable is not to be construed literally. The
causing of great inconvenience is sufficient.
- The owner or the usufructuary can make use of Art. 656.
ARTICLE 657: Easements of 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 usage and customs of the place.
Without prejudice to rights legally acquired, the animal
path shall not exceed in any case the width of 75 m, and the animal
trail that of 37m and 50cm.
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 10m.
Cross references to Art. 640 and 641 relate to: a.) indemnity
payment; b) the fact that the easement for drawing water or for
watering animals can be imposed only for reasons of public use in
favor of a town or village.
EASEMENT OF A PARTY WALL
ARTICLE 658: 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 the same, and by the rules of co-ownership.
PARTY WALL. This is a wall at the dividing line of the estates. Co-
ownership shall govern the wall hence, the party wall is necessarily
a common wall. However, not all common walls are party walls.
The easement of a party wall is a compulsory kind of co-
ownership (FORGED INDIVISION) where the shares of each owner
cannot be separated physically (otherwise the wall would be
destroyed), although said shares may in a sense be materially
pointed out.
ARTICLE 659: The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to the
contrary:
In dividing walls of adjoining building up to the point of common
elevation;
In dividing walls of gardens or yards situated in cities, towns, or in
rural communities.
In fences, walls and live hedges dividing rural lands.
- The presumption that a wall is a party wall may be
rebutted by:
1. title to the contrary;
2. exterior signs to the contrary;
3. proof to the contrary.
A title conferring (expressly) ownership in one co-owner prevails
over a mere exterior sign (from which, there is merely an
inference).
ARTICLE 660: It is understood that there is an exterior sign, contrary
to the easement of 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 onward;
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 the others;
5. Whenever the dividing wall between the 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 enclosed by fences or live hedges adjoin
other which are not enclosed.
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.
- This article enumerates, by way of illustration, exterior signs
rebutting the presumption of there being an easement of party
wall (thus, instead of a party wall, we have a wall exclusively
owned by a single owner).
- If one owner has signs in his favor, and some against him, they
generally cancel each other, unless it can be shown from the
purpose of the wall that it had been made for the exclusive
benefit of one.
ARTICLE 661: Ditches or drains opened between two estate are also
presumed as common to both, if there is no title or sign showing to
the contrary.
There is a sign to the 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.
- 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.
ARTICLE 662: The cost of repairs and construction of party walls
and maintenance of fences, live hedges, ditches, and drains owned
in common, shall be borne by all the owners of the lands or
tenements having the party wall in their favor, in proportion to the
right of each.
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-ownership,
except when the party wall supports a building belonging to him.
- Proportionate contribution to repairs and construction.
- Renunciation of share of one owner in the party wall may be
made, in order to free himself from the above mentioned
contribution unless –
o The repair had already been contracted for and made
(for here, he would still be liable for the repairer).
o He still used the wall (as when it supports his building).
If the building is demolished renunciation can be made.
REQUISITES FOR THE RENUNCIATION OF SHARE:
1. Must be total or complete. Thus, if a person owns ½ of the wall,
he must renounce all his share. He cannot insist on paying ½
of his share for expenses by renouncing ½ of his share in the
wall.
2. Must be made voluntarily and with full knowledge of the
facts.
3. Must be made before the expenses incurred;
4. Is made with the implied condition that the other owner
should make or pay for the repairs. (Thus, if repairs are not
made, it is as if no renunciation had been done, and the co-
ownership remains. Thus, also if neglect to make the repairs
makes the wall fall, co-ownership remains with the felled or
 destroyed wall, each owner being entitled to his
share of the materials).
5. Must be both the share in the wall and the share in
the land, for the wall cannot be used without the
land. (If however the wall is to be removed to
some other place, there need not be a
renunciation of the land originally used).
ARTICLE 663: If the owner of a building supported by a party wall
desires 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.
ARTICLE 664: Every co-owner may increase the height of the party
wall, doing so at his own expense and paying got any damage
which may be caused by the work, even though such damage be
temporary.
The expenses of maintaining the wall in the part newly
raised or depend at its foundation shall also be paid for by him; and
in addition, the indemnity for the increased expense which may be
necessary for the preservation of the party wall by reason of the
greater height or depth which has been given it.
If the party wall cannot bear the increased height, the
owner desiring to raise it shall be obliged to reconstruct it at his
own expense and of for this purpose it be necessary to make it
thicker, he shall give the space required from his own land.
- This deals with the right to increase the height of the
party wall. He who desires this:
1. Must do so at his own expense.
2. Must pay the necessary damages caused, even if the
damage be temporary.
3. Must bear the costs of maintenance of the portion
added.
4. Must pay for the increased cost of preservation.
5. Must reconstruct if original wall cannot bear the
increased height.
6. Must give the additional space (land) necessary, if wall is
to be thickened.
ARTICLE 665: The other owners who have not contributed in giving
increased height, depth, or thickness to the wall may, nevertheless,
acquire the right of part-ownership therein, by paying
proportionally the value of the work at the time of the acquisition
and of the land used for its increased thickness.
ARTICLE 666: Every part-owner of a party wall may use it in
proportion to the right he may have in the co-ownership, without
interfering with the common and respective uses by the other co-
owners.
EASEMENT OF LIGHT AND VIEW
- This section deals with 2 kinds of easements:
1. the easement of LIGHT – jus luminum ( as in the case of
small windows, not more than 30cm square, at the
height of the ceiling joist, the purpose of which is to
admit light and a little air, but not VIEW).
2. The easement of VIEW – servidumbre prospectus (as
in the case of full or regular windows overlooking
the adjoining estate. Although the purpose here is
view, the easement of light is necessarily included,
as well as the easement of not to build higher for
the purpose of obstruction).
ARTICLE 667: No part owner may, without the consent of others
open thru the party wall any window or aperture of any kind.
Example: A and B are co-owners of a party wall. A can not make an
opening on the wall without the permission of B. If A were allowed
to do this without B’s consent, there is a distinct possibility that A will later
claim the whole wall as his in view of the exterior sign. It is as if A is allowed
to use the whole thickness of the wall.
Suppose in the preceding example, A makes the opening without B’s consent,
what will B’s right? B can order that the opening be closed unless of course a
sufficient time for prescription has elapsed – 10 yrs from the opening of the
window.
ARTICLE 668: The period of prescription for the acquisition of an
easement of light and view shall be counted:
From the time of the opening of the window, if it is thru a party
wall; or
From the time of the formal prohibition upon the proprietor of the
adjoining land or tenement, if the window is thru a wall on the
dominant estate.
1. The easement for light and view is either positive or negative:
a. Positive – if the window is thru a party wall. The period
for prescription commences from the time the window
is opened. The mere opening of the window does not
create the easement; it is only when after a sufficient
lapse of time, the window still remains open that the
easement of light and view is created.
b. Negative – if the window id thru one’s own wall, that is
thru a wall of the dominant estate. Therefore, the time
for the period of prescription should begin from the
time of notarial prohibition upon the adjoining owner.
Formal or notarial prohibition means not merely any
writing, but one executed in due form and/or with
solemnity – a public instrument.
ARTICLE 669: When the distances in Article 670 are not observed,
the owner of a wall which is not a party wall, adjoining a tenement
or piece of land belonging to another, can make in it openings to
admit light at the height of the ceiling joints or immediately under
the ceiling, and of the size of 30 cm square, and, in every case, with
an iron imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can close them
should he acquire part ownership thereof, if there be no stipulation
to the contrary.
He can also obstruct them by constructing a building on
his land or by raising a wall thereon contiguous to that having some
openings, unless an easement of light has been acquired.
a. The opening of the window referred to in this article is for the
light and NOT for view. There restrictions themselves are:
1. maximum size- 30cm/sq;
2. here must be iron grating imbedded in the wall;
3. wire screen;
4. the opening must be at the height of the ceiling joists or
immediately under the ceiling.
b. Unless the easement of light has been acquired, the light of such
restricted windows may still be obstructed. Example: A has made
restricted window on his own wall for light. What can the
adjoining or abutting owner do?
 He can obstruct the light:
o By constructing a higher building on his own land.
o Or by raising a blocking wall (in both cases he cannot
make the obstruction if the easement of light has been
acquired – 10 yrs. after notarial prohibition.
o If the wall becomes a party wall, he can close the
window, unless there is a stipulation to the contrary.
ARTICLE 670: 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 2m
between the wall in which they are made and such contiguous
property.
 Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of 60m.
The non-observance of these distances does not give rise
to prescription.
ARTICLE 671: The distances referred to in the preceding article shall
be measured in cases of direct views from the outer line of the wall
when the openings do not project, from the outer line of the latter
when they do, and in cases of oblique views from the dividing line
between the 2 properties.
RULES FOR REGULAR WINDOWS:
 Arts. 670 and 671 deal with regular full windows (as
distinguished from the restricted windows referred to in
669).
 Regular windows can be opened provided that the
proper distances are followed.
THE PROPER DISTANCES:
1) For windows having direct views, observe at least 2m
distance between the wall having the windows and the
boundary line.
2) For windows having side or oblique views (that is one
must turn his head to the right or to the left to view the
adjoining land), observe a distance of at least 60cms
between the boundary line and nearest edge of the
window.
3) If these distances are not observed, the owner cannot
acquire the same by prescription.
ARTICLE 672: The provisions of Article 670 are not applicable to
buildings separated by a public way or alley, which is not less than 3
m wide, subject to special regulations and local ordinances.
ARTICLE 673: 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 therein at
less than a distance of 3m to be measured in the manner provided
in Article 671. Any stipulation permitting distances less than those
prescribed in Article 670 is void.
ARTICLE 674: The owner of a building shall be obliged to construct
its roof or covering in such manner that the rain water shall fall on
his own land or on street of a public place, and not on the land of
his neighbour, even though the adjacent land may belong to two or
more persons, one of whom is the owner of the roof. Even if it
should fall on his own land, the owner shall be obliged to collect the
water in such a way as not to cause damage to the adjacent or
tenement.
 The article speaks that:
1. A person should let rain water FALL on his own land, and not
on the adjacent land, even if he be a co-owner of the latter.
2. Rain water must be COLLECTED instead of just being allowed
to drift to the adjacent or lower land.
3. Art. 674 does not really create an easement, for it merely
regulates the use of a person’s property insofar as rain water
is concerned.
ARTICLE 675: The owner of a tenement or a piece of land, subject to
the easement of receiving water falling from roofs, may build in
such manner as to receive the water upon his own roof or give it
another outlet in accordance with local ordinances or customs, and
in such a way as not to cause any nuisance or damage whatever to
the dominant estate.
ARTICLE 676: Whenever the yard or court of a house is surrounded
by other houses, and it is not possible to give an outlet thru the
house itself to the rain water collected thereon, the establishment
of an easement of drainage can be demanded, giving an outlet to
the water at the point of the contiguous lands or tenements where
its egress may be the easiest, and establishing a conduit for the
drainage in such manner as to cause the least damage to the
servient estate, after payment of the proper indemnity.
CONDITIONS:
1. Because of enclosure, there is no adequate outlet for the rainwater (or
similar things).
2. The outlet must be at the point of easiest egress (going out).
3. Least possible damage.
4. Payment of proper indemnity.
INTERMEDIATE DISTANCES AND WORKS FOR CERTAIN CONSTRUCTIONS
AND PLANTINGS
ARTICLE 677: No constructions can be built or plantings made near
fortified places or fortresses without compliance with the conditions
required in special laws, ordinances, and regulations relating
thereto.
ARTICLE 678: No person shall build any adequate, well, sewer,
furnace, forge, chimney, stable, deposit of corrosive substances,
machinery, or factory which by reason of its nature of products is
dangerous or noxious, without observing the distances prescribed
by the regulations and customs of the place, and without making
the necessary protective works, subject, in regard to the manner
thereof, to the conditions prescribed by such alterations. These
prohibitions cannot be altered or renounced by stipulation on the
part of the adjoining proprietors.
In the absence of regulations, such precautions shall be
taken as may be considered necessary, in order to avoid any
damage to the neighboring lands or tenements.
ARTICLE 679: No trees shall be planted near a tenement or piece of
land belonging to another except at the distance authorized by the
ordinances or customs of the place, and in the absence thereof, at a
distance of at least 2m from the dividing line of the estate if tall
trees are planted and at a distance of at least 50cm if shrubs or
small trees are planted.
Every landowner shall have the right to demand that
trees hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which
have grown spontaneously.
 At least 2 meters - to be observed with respect to tall trees
 50cm or half meter distance - with respect to small trees or shrubs
ARTICLE 680: If the branches of any trees should extend over a
neighboring estate, tenement, garden or yard, the owner of the
latter shall have the right demand that they be cut off insofar as
they may spread over hi property, and, if it be the roots of a
neighboring tree which should penetrate into the land of another,
the latter may cut them off himself within his property.
Q: Is the right limited to demand the cutting of branches only?
A: Yes. He cannot cut the branches himself because doing it would be putting
the law into his own hands.
1. Branches – adjacent owner has the right to DEMAND that they be cut
off (in so far as they spread over his property).
2. Roots – he may cut them off himself (because by ACCESSION or
INCORPORATION) he has acquired ownership over them.
3. Prescription:
1) Of the right to demand the cutting off of the branches – this
does not prescribe of tolerated by invaded owner; if demand
is made, prescription runs from the date of said demand.
2) Of the right to cut off the roots – this is imprescriptible
unless a notarial prohibition is made.
o A notarial prohibition can be made even of the intruding
roots are already owned by the invaded owner, precisely
because an easement (easement of restraint) is made on
somebody else or his property.
ARTICLE 681: Fruits naturally falling upon adjacent land belong to
the owner of said land.
 RULES AS TO FRUITS:
1. If the fruits still hang on to the tree, they are still owned by
the tree owner.
2. It is only after they have NATURALLY fallen (not taken down
by poles or shaken) that they belong to the owner of the
invaded land.
3. The rule is based not on accession for they were not grown or
produced by the land nor added to it (naturally or artificially);
nor on occupation (for they are not res nullius) but to avoid
disputes and arguments between the neighbours. The mode
of acquisition may be said to be the LAW.
VOLUNTARY EASEMENTS
ARTICLE 688: Every owner of a tenement or piece of land may
establish thereon the easements which he may deem suitable and
in the manner and form which he may deem best, provided he does
not contravene the laws, public policy or public order.
 The easement established may be predial (for the
benefit of an estate) or personal. Only the owner or
someone else inn the name of and with the authority of
the owner, may establish a voluntary predial servitude
on his estate, for this is an act of ownership. (However,
so as not prejudice the usufructuary, the usufructuary’s
consent is needed to create a ‘perpetual, voluntary
easement.’
 If a person is an owner with a resolutory title or an
annullable one, he can create an easement over the
property. But it is deemed extinguished upon resolution
or annulment of the right.
 A voluntary easement is not contractual in nature
because it may be imposed unilaterally.
 If fee is imposed, anybody can make use of the
easement upon payment of the said fee. In this sense,
and only in this, may the easement be said to partake of
the nature of a contract.
ARTICLE 689: The owner of a tenement or piece of land, the
usufruct of which belongs to another, may impose thereon, without
the consent of the usufructuary, any servitude which will not injure
the right of usufruct.
ARTICLE 690: Whenever the naked ownership of a tenement or
piece of land belongs to one person and the beneficial ownership to
another, no perpetual voluntary easement may be established
thereon without consent of both owners.
RULES WHEN USUFRUCT EXIST:
 The beneficial owner (as distinguished from the naked
owner) may by himself create a temporary easement
compatible with the extent of his beneficial dominion.
 If the easement is perpetual (like the permanent
easement of right of way) both the naked and the
beneficial owners must be consent.
ARTICLE 691: In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the co-owners shall be
required.
The consent given by some only, must be held in
abeyance until the last one of all the co-owners shall have
expressed his conformity.
But the consent given by one of the co-owners
separately form the others shall bind the grantor and his successors
not to prevent the exercise of the right granted.
 Reason for requiring unanimous consent on the part of
all co-owners: The creation of the voluntary easement is
an act of ownership (the alienation not of any aliquot
part but of a qualitative part of the enjoyment of the whole
premises).
ARTICLE 692: The title and, in a proper case, the possession of an
easement acquired by prescription shall determine the rights of the
dominant estate and the obligations of the servient estate. In
default thereof, the easement shall be governed by such provision
of this title as are applicable thereto.
GOVERNING RULES FOR VOLUNTARY EASEMENTS:
1. If created by title (contract, will, etc) the title governs. The Civil Code is
suppletory.
2. If created by prescription, the form and manner in which it had been
acquired.
3. If created by prescription in a proper case (that is, may have been a
contract initially, but the form and manner may have been extended or
decreased by prescription), the way the easement has been possessed,
that is, the manner and form of possession.
ARTICLE 693: If the owner of the servient estate should have bound
himself, upon the establishment of the easement, to bear the cost
of the work required for the use and preservation thereof, he may
free himself from this obligation by renouncing his property to the
owner of the dominant estate.
NUISANCE
ARTICLE 694: A nuisance is any act, omission, establishment,
condition of property, 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.
1. injures or endangers the health or safety of others; ex. a house in danger
of falling; fireworks or explosives factory
2. annoys or offends the senses; ex videoke, chimney or too much horn
blowing
3. shocks or defies or disregards decency or morality;
4. Obstructs or interferes with the free passage of any public highway or
street, or any body of water, ex. Houses constructed on public streets.
5. Hinders or impairs the use of property; ex. squatting because they hinder
or impairs the use of property by the owner.
ARTICLE 695: Nuisance is either public or private. A public nuisance
affects a community or neighbourhood or any considerable number
or persons, although the extent of the annoyance, danger or
damage upon individuals may be unequal. A private nuisance is one
that is not included in the foregoing definition
Public nuisance: The doing of or the failure to do something that injuriously
affects the health, safety or morals of the public or works such substantial
annoyance, inconvenience or injury to the public. It affects a community or
neighborhood or any considerable number of persons, although the extent of
damage or annoyance upon the people may be unequal.
Private nuisance when it violates only private rights and produces damage to
but one or few persons and cannot be said to be public
The yardstick in determining whether the nuisance is private or public is the
extent of those affected by such injury or inconvenience.
Old classifications of nuisance
1 .nuisance per se- a nuisance at all times under all circumstances
 2. nuisance per accidence- nuisance only under certain
circumstances or condition
Attractive nuisance. It is any contrivance which is very attractive to
children but very dangerous to them. An attractive nuisance is a
dangerous instrumentality or appliance which is LIKELY TO
ATTRACT CHILDREN AT PLAY.
An attractive nuisance is NOT illegal per se but because of its
nature, it can easily injure children. So that if you are the owner of
an attractive nuisance, the law requires that you take extra care of
the said contrivance or tool to prevent injury to the children. The
best example here is a firearm. He is required to exercise the
highest degree of diligence.
HIDALGO ENTERPRISES vs. BALANDAN (91 Phil 488)
F: 8-yr old boy drowned in a tank maintained by an ice-plant
factory; parents of the boy filed an action for damages against the
factory alleging that the tank full of water was an attractive
nuisance and yet the factory did not provide any precaution.
H: tank was not an attractive nuisance. Water in any form is not an
attractive nuisance. Nature in itself created streams, lakes, and
pools which attract children. Lurking in their waters is always the
danger of drowning. Against this danger, children are to know the
danger.
The tanks filled with water are not an attractive nuisance. Any
imitation of nature, like a swimming pool, is not an attractive
nuisance. So, if the owner of a private property creates an artificial
pool on his own property, merely duplicating the work of nature
without adding any new danger, he is not liable.
The factory owner need not exercise the highest degree of
diligence since it is not an attractive nuisance.
ARTICLE 696: Every successive owner or possessor of property who
fails or refuses to abate nuisance in that property started by a
former owner or possessor is liable therefore in the same manner as
the one who created it.
 Now who should be liable?
a. the one who creates the nuisance;
b. the one who participates in the creation of the nuisance;
c. the one who adopts the nuisance;
d. the one who continues the nuisance;
e. the one who refuses to abate the nuisance;
f. the successor of the property shall be held liable if he
knowingly fail or refuse to abate the nuisance.
ARTICLE 697: The abatement of a nuisance does not preclude the
right of any person injured to recover damages for its past
existence.
 If a property which has already caused nuisance is
removed, is it a defense?
 Ans: (Art 697) No, the abatement of a nuisance does not
preclude the right of any person injured to recover
damages for its past existence.
ARTICLE 698: Lapse of time cannot legalize any nuisance, whether
public or private.
 May an action for abatement of a nuisance prescribe?
No, an action for abatement of a nuisance is one which
is imprescriptible. A nuisance can be abated anytime.
ARTICLE 699: The remedies against a public nuisance are:
a. A prosecution under the Penal Code or any local
ordinance; or
b. A civil action; or
c. Abatement, without judicial proceedings.
If it is a PRIVATE NUISANCE, there are 2 possible remedies:
1) a civil action, or
2) abatement, without judicial proceedings (Article 705)
 Article 703 and 704 on the requisites for extra judicial abatement
of nuisance
REQUISITES:
1. There must be showing that the nuisance is specially injurious to the
person seeking the abatement of nuisance (Article 703), [injury
sustained]
2. That demand be first made upon the owner or possessor of the
property to abate the nuisance; [prior demand]
3. That such demand has been rejected or ignored;
4. That the abatement must be approved by the City Engineer in Manila
and other chartered cities, and in the provinces, by the Provincial
Health Officer and executed with the assistance of or attended by a
member of the local police force; [approval by the proper government
officers];
5. That the abatement must be done in such a way that it does not breach
public peace, or do unnecessary injury; and
6. That the value of the thing to be abated does not exceed P3,000. (The
amount is not realistic noh because the amount is only 3K).
 Criminal prosecution is not mentioned, nonetheless if there is a
crime committed, then that would be an added liability.
ARTICLE 707: A private person or a public official extrajudicially
abating a nuisance shall be liable for damages:
a. If he causes unnecessary injury; or
b. If an alleged nuisance is later declared by the courts to
be not a real nuisance.
Note that the person liable for damages in case of extrajudicial abatement
may be:
(1.) a private person
(2.) a public official
DONATION
GENERAL CHARACTERISTICS OF DONATION:
(1) It is essentially gratuitous because it is an act of
liberality. The consideration here is an act of liberality.
(2) It is by itself a mode of acquiring ownership. Tradition
is not required. The moment the donation is perfected
the donee is deemed the owner of the property.
- NOTE: Do not confuse yourself with succession because the latter
takes effect from the moment of death.
ESSENTIAL CHARACTERISTICS OF DONATION.
1. consent, subject matter, consideration;
2. There is a required form to some particular donation;
3. Donations are generally irrevocable.
4. There is intent to benefit the donee, animus donandi.
5. There is a resultant decrease of the assets or patrimony of the
donor.
6. There is a necessity of acceptance by the donee.
- Upon acceptance, the donee becomes the absolute owner of the
property donated. This is an ideal donation inter vivos.
CLASSIFICATIONS:
a. from the viewpoint of motive, purpose or cause: (Art 726)
1. simple
2. remuneratory
3. modal or conditional
4. onerous
b. from the viewpoint of time of taking effect (Art 728-729)
a) inter vivos
b) mortis causa
c. from the viewpoint of occasion
1. ordinary donation
2. donation propter nuptias
 d. from the viewpoint of object donated
1. corporeal property – real property or personal
property
2. incorporeal property – a right that is not purely
personal. It should be alienable rights.
 KINDS:
1. Simple donation – Art. 725
2. Remuneratory donation – Art. 726 (1st part)
3. Modal or conditional – Art. 726 (2nd part)
4. Onerous
ARTICLE 725: Donation is an act of liberality whereby a person
disposes gratuitously of a thong or right in favor of another, who
accepts it.
SIMPLE DONATION. Art. 725 pertains to simple donation.
 REQUISITES:
(1) an act of liberality – on the part of the donor
(2) increase in the patrimony of the donee
(3) corresponding decrease in the patrimony of
the donor
Example:
- A bought an insurance policy. He paid the premium for
the insurance. Then he named B as the beneficiary.
When A died B got P10M. Is there a donation? Based on
the provision, there is no donation with respect to the
entire P10M. There is no decrease of P10M from the
patrimony of the donor. However the premium paid,
which for example was worth P50T is a form of donation
because there was a decrease with respect the property
of the policyholder.
ARTICLE 726: When a person gives to another a thing or right on
account of the latter’s merits or of the services rendered by him to
the donor, provided they do not constitute a demandable debt. Or
when the gift imposes upon the donee a burden which is less than
the value of the thing given, there is also a donation.
REMUNERATORY. ‘When a person gives to another a thing or right
on account of the latter’s merits or of the services rendered by him
to the donor x x x.
 Meaning it is a donation to reward past services which
do not constitute a demandable debt. Ito yung donation
where the cause is gratitude or utang na loob. Because
you saved the life of the son of your neigbor, your
neighbor gifted you a brand new honda civic. That is a
donation and it is classified as remuneratory donation.
 What do you understand by the phrase "do not
constitute a demandable debt"? This means that the
service which was rendered did not produce an
obligation demandable against the donor. The purpose
is to reward past services with no strings attached.
These services do not constitute recoverable debts.
Meaning, it is not in payment of a debt. He has no right
to demand from you because it is out of your own
liberality.
Example:
Like you were crossing the street, and didn’t know that there is a
vehicle that is going to hit you and somebody saves your life, and
because you are very rich, you decided to give the person a car.
That is a remuneratory donation, on account of the latter’ merits.
MODAL OR CONDITIONAL. 2nd sent: ‘Or when the gift imposes
upon the donee a burden which is less than the value of the thing
given, there is also a donation.’
 Under this donation, you give something but you have a
condition.
 This is an exchange of future services. But the services
expected is less than the value of the thing given.
Example: I will give you my car but you have to be the driver. Ex.
Danna will give Mitos a cellphone worth P50T. The condition is that
she will have a dancing lesson. The value of the dancing lesson is P30T. So
P20T was donated to Mitos.
 Modal or conditional donation is partly onerous and partly simple.
The simple donation here is P20T in excess of the value of the
services. The P30T is onerous. Therefore, it is not pure anymore.
ONEROUS DONATION. It is not really a donation. Like the example about
dancing lesson. If the dance lesson is worth P50T, equal to the amount of the
donation, then it is not true donation anymore. It is onerous and is governed
by the provisions of contracts. It is now a contract. An onerous donation is
one that the charges of future services are equal to the thing donated.
ARTICLE 727: Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not imposed.
 If the condition of the contract is illegal, such contract is VOID.
 But in donation if there is a condition that is illegal, the condition
is disregarded and the donation remains to be valid. Donation will
become simple.
ARTICLE 728: Donations which are to take effect upon the death of
the donor partake of the nature of testamentary provisions, and
shall be governed by the rules established in the Title on Succession.
 Art. 728 talks about mortis causa which partakes of the nature of
testamentary provisions, and are covered in the rules on
succession.
 It takes effect from the death of the donor.
ARTICLE 729: When the donor intends that the donation shall take
effect during the lifetime of the donor, though the property shall
not be delivered until after the donor’s death, this shall be a
donation inter vivos. The fruits of the property from the time of the
acceptance of the donation, shall pertain to the donee, unless the
donor provides otherwise.
 When we talk of donation inter vivos, it takes effect during the
lifetime of the donor.
 What are the REQUISITES of DONATION PRAESENTI?
a) Intent by the donor that donation shall take effect during
the lifetime of the donor.
b) The property subject to donation is not yet delivered. In
donation, delivery is not required before the owner can
acquire the property. So if it is a donation in praesenti, the
property even if not yet delivered is already owned by the
donee.
Q: What happens to the fruits of the property?
A: By GR: The fruits of the property although not delivered will go to the
donee. Exception: Unless the donor provides otherwise.
Example:
A donated to B a house on January 10, 2000. B accepted on the same day.
The donation provides that A donates the house to B now, but while A is
alive, A will remain in the possession of the house. And the house shall only
be delivered to B after the death of A. What is the significance? What are the
CONSEQUENCES?
(1) Beginning January 10, 2000, the donee is now the owner of the house
upon acceptance. He is also entitled to the fruits unless the contrary is
provided.
(2) A cannot revoke the donation without a valid cause. (For me, that is
one of the most important distinction because when you go to
Succession, you will learn that the testator can change his will everyday
if he wants. If you are the donee, you cannot complain because you
have no right to tell the testator what he wills or donates, even if it is
already notarized. The latest will is the valid will.) Now, in donation
inter vivos is not easy to revoke. If I give my pen to Blithe, I cannot take
it back anymore unless I have a valid ground. What is a valid ground? If I
have a child that comes out. But we will take that up later.
(3) Even if the house that was donated (earlier example) was no yet
delivered, B can already dispose it because we know very well that he is
already the owner.
DISTINCTIONS BETWEEN INTER VIVOS AND MORTIS CAUSA:
 (1) As to effectivity. Inter vivos takes effect during the
lifetime of the donor, mortis takes effect only after the
death of the donor;
(2) As to the formalities. Inter vivos will follow the
formalities under this title; mortis causa to be valid
should follow the formalities required under the
provisions on Succession. So form should be in the form
of a will;
(3) As to its revocability. Inter vivos cannot be revoked as a
GR, except for the grounds provided by law; in mortis
causa YES, it can be revoked anytime for any reason
provided that the donor is still alive. Of course, when he
dies he can no longer revoked, unless there is another
will that he executed while he was still alive (like it was
found out after his death, it is still ok for as long as he
revoked the earlier will.)
(4) As to the impairment of legitime. Donations mortis
causa will be reduced ahead from the donations inter
vivos to accommodate the legitime; donation inter vivos
are preferred to donation mortis causa (Priority in time
is Priority in right). They won’t be touched until
donations mortis causa are not enough to cover the
legitime.
(5) As to the right to dispose. Inter vivos can be disposed of
upon acceptance because there is already transfer of
ownership although there may be a reservation to
deliver it after the death of the donor; mortis causa, no,
until the donor dies;
(6) As to acceptance. In inter vivos, acceptance must be
made during the lifetime of the donor and the donor
must know of the acceptance; in mortis causa, it can
only be done after the donor’s death. He cannot accept
it in advance.
ARTICLE 730: The fixing of an event or the imposition of a
suspensive condition, which may take place beyond the natural
expectation of life of the donor, does not destroy the nature of the
act as a donation inter vivos, unless a contrary intention appears.
 This is one situation where the donation is considered as
donation inter vivos notwithstanding the fact that the
happening of the event or the fulfilment of the
condition transpires after the death of the donor.
ILLUSTRATION: So if A gives B a car, but A said that you have to pass
the bar exam. Is that a donation inter vivos? YES, because it takes
effect right away if B says I accept it. Then B is already the owner of
the car. Even if B only passes the bar after the death of the donor, it
is still a donation inter vivos. Unless A says, ‘but if you do not pass
at all, you will have to return the car.’ That will become a resolutory
condition. A suspensive condition that is becoming a resolutory
condition because you have to terminate the obligation. So,
remember that it will not destroy the act as donation inter vivos,
unless a contrary intention appears.
ARTICLE 731: When a person donates something, subject to the
resolutory condition of the donor’s survival, there is donation inter
vivos.
 Even if the donation is subject to a resolutory condition
of the donor’s survival, there is still a donation inter
vivos.
 On the other hand, Art. 731 gives us also the effect of
the fulfillment of a resolutory condition: When a person
donates something subject to the resolutory condition
of the donor's survival, there is a donation inter vivos.
Example:
A is going to undergo a heart transplant and he will give to B a car
on the condition that if he will survive, the ownership of the car will
go back to A. B accepts it and the donation is effective. If he
survives, then it will revert to A, but if A dies, then B is the owner.
But it does not mean that it took effect after the death of A
because B already accepted it earlier. It was just subject to the
resolutory condition of the donor’s survival.
ARTICLE 732: Donations which are to take effect inter vivos shall be
governed by the general provisions on contracts and obligations in
all that is not determined in this Title.
 The governing laws when it comes to donations are the provisions
of this title. And if it is not determined by the provisions of this
title, then the general provisions on Oblicon such as onerous
donations.
 What are the governing laws when it comes to onerous
donations? Art. 733 of NCC, with respect to remuneratory
donations with respect to the donation (the P20T example earlier)
it will be govern by the provisions on donation but with respect to
onerous part (P30T) that will govern by the law on contract.
ARTICLE 733: Donations with an onerous cause shall be governed
by the rules on contracts, and remuneratory donations by the
provisions of the present Title as regards that portion which exceeds
the value of the burden imposed.
ARTICLE 734: The donation is perfected from the moment the donor
knows of the acceptance by the donee.
 This is COGNITION THEORY under your lessons in Oblicon.
 So donation is not perfected the moment the donee accepts, but
the moment the donor KNOWS/LEARNS of the acceptance by the
donee. In relation to this, refer to Art. 745 and 746: the
acceptance may be made through an agent and MUST be made
during the lifetime of the donor and the donee.
 Donor A donates a car to B in January 1, 2006. He accepted it thru
a letter in February 1, 2006. But on February 2, A dies and the
letter reaches A’s house on February 5. So, A does not know that
B accepted the donation, so the donation is not valid. Acceptance
must be made during the lifetime of the donor and he must know
of the acceptance while he is still alive.
Q: So what shall the donor do before he knows that the donee accepted the
donation?
A: He can dispose the property because the donation has not yet taken
effect. That is not tantamount to revocation because the donation has not
yet taken effect. That’s why, usually now, the donation and the acceptance
are in the same instrument. Both singled by the donor and the donee.
PAJARILLO vs. IAC
GR No. 72908. August 11, 1989
FACTS
The mother was Juana Balane de Suterio, who had a brother named
Felipe Balane and a sister named Perfecta Balane de Cordero. Perfecta died
in 1945 leaving inter alia a registered tract of land consisting of about 28
hectares in the barrio of Luctol, Municipality of Macalelon in Quezon
Province. In 1946, Juana and Felipe, as the only brother and sister
respectively and forced heirs of Perfecta, executed a public instrument
entitled "Extra-judicial Settlement of the Estate of the Deceased Perfecta
Balane de Cordero."
In the agreement, Juana and Felipe, in consideration of love and
affection agreed in carrying out the antemortem wish of Pefecta by donating
to private respondent SALUD SUTEXIO DE MATIAS (only niece) the 28-hectare
land Perfecta owned. It also conditioned that SALUD must assume the P1,000
obligation or debt of Perfecta’s estate with the Philippine National Bank. It
was also stated therein that SALUD accepted the said donation and
expressed her gratitude for the kindness and liberality of Juana and Felipe.
Later, SALUD executed a public instrument accepting the donation
made by Felipe and Juana. Therein, she expressed her gratitude for the
kindness and liberality of Juana and Felipe. One of the witnesses, who signed
in this document was petitioner EUFEMIA PAJARILLO.
These instruments were never registered nor was title transferred in
SALUD's name although she said she immediately took possession of the
land. Meantime, intestate proceedings were instituted on the estate of
Perfecta and the said land was among those included in the inventory of the
properties belonging to the decedent. SALUD interposed no objection to its
inclusion nor did she oppose its subsequent adjudication to her mother Juana
in the project of partition.
 It was not clear if the land was ever registered in Juana's
name. However, there is evidence that Juana confirmed the earlier
donation of the land to SALUD but requested that she be allowed
to possess the same and enjoy its fruits, until her death. It has also
not been controverted that Salud paid the P1,000.00 loan for which
the land was mortgaged.
In 1951, acceding to this request, she transferred the
possession of the land to her mother, who was then staying with
petitioner CLAUDIO SUTERIO, SR. and his family. During the period
they were occupying the land, CLAUDIO paid the realty taxes
thereon. In 1956, Juana executed a deed of absolute sale conveying
the land to CLAUDIO for the declared consideration of P12,000.00.
In 1958, Claudio had the land registered in as name and was issued
a TCT.
CLAUDIO died in 1961 and his mother in 1963. In 1965,
private respondents spouses SALUD and PEDRO MATIAS filed a
complaint for the reconveyance of the property on the ground that
the deed of sale in favor of CLAUDIO was fictitious and its
registration in his name was null and void.
SALUD alleged that she was unaware until later of the
supposed sale of the land to CLAUDIO. She faulted it as having been
procured through fraud and improper influence on her sick and
aged mother. She claimed that no compensation was actually paid
by CLAUDIO and that the transaction was deliberately concealed
from her by her brother and the defendants.
For their part, the respondents EUFEMIA PAJARILLO, CLAUDIO
SUTERIO, JR., NYMIA SUTERIO and MARILYN SUTERIO, widow and
children of CLAUDIO, assailed the donation to SALUD as legally
inefficacious and defective and contended that her complaint was
barred by prescription, estoppel and res judicata.
In 1979, the CFI of Quezon upheld the donation to SALUD and
annulled the deed of sale and the registration of the land in favor
of CLAUDIO. The defendants were required to reconvey the land to
SALUD as a result. On appeal, the decision was affirmed in toto.
Hence, this appeal by EUFEMIA, ET. AL.
The petitioners assailed the intrinsic validity of the
extrajudical settlement and submit that it was not really a donation
as conceptually understood in civil law. Their argument was that
the real donor of the property was Perfecta, the deceased sister,
who, however, could no longer bestow the intended gift. For their
part, Felipe and Juana could not have made the donation either
because they were not moved by the same sentiments Perfects had
for her niece SALUD. That feeling would have provided the required
consideration if Perfecta herself had made the donation, but not
the other two.
ISSUE
Whether or not the extrajudicial settlement was really a
donation since the donor of the property who was Perfecta, as she
was already deceased, could no longer bestow the intended gift
and that Felipe and Juana could not have made the donation either
because they were not moved by the same sentiments Perfecta
had for her niece SALUD.
RULING
YES, it was a donation. The argument aappeared to be too
much nitpicking, if not sophistry. Felipe and Juana had declared
themselves the heirs of Perfecta and the owners of the property in
question. As such, they were free to give the land to whomever
they pleased and for whatever reason they saw fit. Hence, if they
chose to respect Perfecta's wishes and carry out her intentions by
donating the land to SALUD, there was no legal impediment to their
doing so. In fact, that was not only the legal but also the moral
thing to do.
There is no question that Felipe and Juana could have simply
disregarded their sister's sentiments and decided not to donate the
property to SALUD, keeping the same for themselves. The fact that
they did not do this speaks well indeed of their integrity and their
loyalty as well to their deceased sister. The extrajudicial settlement
also reflected their own affection for SALUD which constituted the
valid consideration for their own act of liberality. Notably, in her
acceptance of the donation, SALUD referred to the donors Felipe
and Juana, and not Perfecta.
DE LUNA vs. Hon. ABRIGO
GR No. No. L-57455. January 18, 1990
articles 733
The prescriptive period of 4 years provided under Article 764 is not
applicable to onerous donations. Under Article 733, onerous donations
shall be governed by the rules on contract. Hence, for purposes of
prescription of onerous donations, it shall be governed by Art. 1144,
which provides that an action to enforce a written contract prescribes
in 10 years. In the present case, the action filed by the DE LUNAs was
well within the 10-year period.
FACTS
In 1965, Prudencio de Luna donated a portion of 7,500 square meters of
his registered lot in Lucena to the Luzonian Colleges, Inc., (now private
respondent LUZONIAN UNIVERSITY FOUNDATION, INC). The donation, which
was embodied in a Deed of Donation Intervivos was subject to certain terms
and conditions and provided for the automatic reversion to the donor of the
donated property in case of violation or non-compliance. The FOUNDATION
failed to comply with the conditions of the donation.
But in 1971, Prudencio de Luna "revived" the said donation in favor of
the FOUNDATION, in a document entitled "Revival of Donation Intervivos"
subject to terms and conditions which among others, required the
construction of the following: a Chapel, a Nursery and a Kindergarten School,
to be named after St. Veronica. It also conditioned that the plan must be in
accordance with the one prepared by the O.R. Quinto & Associates provided
that the flooring of the Altar and parts of the Chapel shall be of granoletic
marble. It also stipulated that the 3 constructions must be at least 70%
finished, 3 years from the date of donation and must be completed within 5
years, though extensions may be granted by Prudencio de Luna in writing. As
in the original deed of donation, the "Revival of Donation Intenrivos" also
provided for the automatic reversion to the donor of the donated area in
case of violation of the conditions thereof.
The FOUNDATION, through its president, accepted the donation in the
same document, subject to all the terms and conditions stated in the
donation. In 1971, the donation was registered and annotated in the
memorandum of encumbrances.
In the same year of 1971, Prudencio de Luna and the FOUNDATION
executed a 'Deed of Segregation" whereby the area donated was adjudicated
to the FOUNDATION. As a result, a TCT was issued in the name of the
FOUNDATION while the remaining portion of the lot was retained by
Prudencio de Luna.
In 1980, Prudencio de Luna died. As a result, in the same year, his
children and only heirs, petitioners EVELYN, ROSALINA, PRUDENCIO, JR.,
WILLARD, ANTONIO and JOSELITO filed a complaint with the RTC of Quezon
alleging that the terms and conditions of the donation were not complied
with by the FOUNDATION. They stated that camE 1976 but the 3
constructions were not yet completely built by the FOUNDATION. Among
others, they prayed for the cancellation of the donation and the reversion of
the donated land to them.
On the other hand, the FOUNDATION claimed that it had partially and
substantially complied with the conditions of the donation and that the
donor has granted the FOUNDATION an indefinite extension of time to
complete the construction of the chapel. It also invoked the affirmative
defense of prescription of action and prayed for the dismissal of the
complaint.
The CFI of Quezon dismissed the case on the ground of prescription. It
applied Article 764 of the Civil Code which provides that an action to enforce
a revocation of a donation due to non-compliance with conditions prescribes
in 4 years. Since the complaint was brought in 1980 or more than 5 months
beyond the prescriptive period, it was already barred by prescription.
Hence, this appeal by the DE LUNAs. The alleged that the action they
filed before the CFI of Quezon is not one for revocation of the donation
under Article 764 of the New Civil Code which prescribes in 4 years, but one
to enforce a written contract which prescribes in 10 years under Article 1144.
ISSUE
Whether or not the applicable law is Article 764, which states that an
action for revocation of a donation for non-compliance with the condition
prescribes in 4 years or Article 1144, which states that an action to
enforce a wriiten contract prescribes in 10 years.
RULING
The applicable law is Article 1144, which states that an action
to enforce a wriiten contract prescribes in 10 years because the
donation made was an onerous donation.
From the viewpoint of motive, purpose or cause, donations
may be 1) simple, 2) remuneratory or 3) onerous. A simple
donation is one the cause of which is pure liberality (no strings
attached). A remuneratory donation is one where the donee gives
something to reward past or future services or because of future
charges or burdens, when the value of said services, burdens or
charges is less than the value of the donation. An onerous
donation is one which is subject to burdens, charges or future
services equal (or more) in value than that of the thing donated.
It is the finding of the trial court, which is not disputed by the
parties, that the donation subject of this case is one with an
ONEROUS CAUSE. It was made subject to the burden requiring the
donee to construct a chapel, a nursery and a kindergarten school in
the donated property within 5 years from execution of the deed of
donation.
Under the old Civil Code, it is a settled rule that donations
with an onerous cause are governed not by the law on donations
but by the rules on contracts. On the matter of prescription of
actions for the revocation of onerous donation, it was held that the
general rules on prescription applies. The same rules apply under
the New Civil Code as provided in Article 733 thereof which
provides:
Art. 733. Donations with an onerous cause shall be
governed by the rules on contracts, and remuneratory
donations by the provisions of the present Title as
regards that portion which exceeds the value of the
burden imposed.
It is true that under Article 764 of the New Civil Code, actions
for the revocation of a donation must be brought within 4 years
from the non-compliance of the conditions of the donation.
However, it does not apply to onerous donations in view of the
specific provision of Article 733 providing that onerous donations
are governed by the rules on contracts.
The trial court was therefore not correct in holding that the
complaint in the case at bar is barred by prescription under Article
764 of the New Civil Code because Article 764 does not apply to
onerous donations.
As provided in the donation executed in 1971, complaince
with the terms and conditions of the contract of donation, shall be
made within 5 years from its execution. The complaint which was
filed on in 1980 was then well within the 10 year prescriptive
period to enforce a written contract under Article 1144 of the Civil
Code, counted from 1976.
The validity of the stipulation in the contract providing for the
automatic reversion of the donated property to the donor upon
non-compliance cannot be doubted. It is in the nature of an
agreement granting a party the right to rescind a contract
unilaterally in case of breach, without need of going to court. Upon
the happening of the resolutory condition of non-compliance with
the conditions of the contract, the donation is automatically
revoked without need of a judicial declaration to that effect.
LAGAZO vs. CA
GR No. 112796. March 5, 1998
Articles 733
A donation is simple when although the donee in reality paid
for the installments in arrears and for the remaining balance
of the lot in question, no burdens, charges or conditions
imposed upon such was stated on the deed of donation itself.
Being a simple donation, acceptance must be in a public
instrument and that the donor must be formally notified
thereof.
FACTS
Catalina Jacob Vda. de Reyes, a widow and grandmother of petitioner
TITO R. LAGAZO was awarded in 1975, a 60.10-square meter lot which is a
portion of the Monserrat Estate located at 3320 2nd St., V. Mapa, Old Sta.
Mesa, Manila. The Monserrat Estate was a public land owned by the City of
Manila and distributed for sale to bona fide tenants under its land-for-the-
landless program. Catalina constructed a house on the lot.
In 1977, or shortly before she left for Canada where she was a
permanent resident at that time, Catalina executed a special power of
attorney in favor of her son-in-law Eduardo B. Español authorizing him to
execute all documents necessary for the final adjudication of her claim as
awardee of the lot.
In 1984, due to the failure of Eduardo B. Español to accomplish the
purpose of the power of attorney granted to him, Catalina revoked said
authority in an instrument executed in Canada. Simultaneous with the
revocation, Catalina executed another power of attorney of the same tenor
in favor of petitioner TITO R. LAGAZO.
In 1985, Catalina executed in Canada a Deed of Donation over the lot in
favor of LAGAZO. Following the donation, LAGAZO checked with the Register
of Deeds and found out that the property was in the delinquent list, so that
he paid the installments in arrears and the remaining balance on the lot and
declared the said property in the name of Catalina.
In 1986, LAGAZO sent a demand letter to respondent ALFREDO
CABANLIT asking him to vacate the premises of the lot. A similar letter was
also sent afterwards. However, CABANLIT refused to vacate the premises
claiming ownership thereof. Hence, LAGAZO instituted a complaint for
recovery of possession and damages against CABANLIT. LAGAZO claimed
ownership over the house and lot by virtue of the Deed of Donation in his
favor executed by his grandmother Catalina, the real awardee of the lot in
question.
Opposing LAGAZO's version, CABANLIT claimed ownership over the
house and lot in controversy through purchase from Eduardo Español in
1982. He argued that it was Español who was the owner of the house and lot
by virtue of the Deed of Absolute Sale executed by Catalina in 1977 over the
house and a Deed of Assignment over the lot in 1980, in favor of Español.
After trial, the RC of Manila decided in favor of LAGAZO and against
CABANLIT, It thereafter, ordered the reconveyance of the property to
LAGAZO.
On appeal to the Court of Appeals, the appellate court reversed the
decision of the RTC. It anchored its ruling upon the absence of any showing
that LAGAZO accepted his grandmother's donation of the subject land. It also
struck down LAGAZO 's contention that the formalities for a donation of real
property should not apply to his case since it was an onerous one — he paid
for the amortizations due on the land before and after the execution of the
deed of donation — reasoning that the deed showed no burden, charge or
condition imposed upon the donee; thus, the payments made by LAGAZO
were his voluntary acts.
Hence, this appeal by LAGAZO.
He contended that the burdens, charges or conditions imposed upon a
donation need not be stated on the deed of donation itself. Thus, although
the deed did not categorically impose any charge, burden or condition to be
satisfied by him, the donation was onerous since he in fact and in reality paid
for the installments in arrears and for the remaining balance of the lot in
question. Being an onerous donation, his acceptance thereof may be express
or implied, as provided under Art. 1320 of the Civil Code, and need not
comply with the formalities required by Art. 749 of the same code. His
payment of the arrearages and balance and his assertion of his right of
possession against private respondent clearly indicate his acceptance of the
donation.
ISSUE
Whether or not the donation made by Catalina to LAGAZO was an
onerous one eventhough it did not expressly impose any burden in the deed
of donation but in reality, LAGAZO actually paid charges imposed on the
property like land taxes and installment arrearages.
RULING
NO, it was not an onerous obligation. It was a simple donation rather.
A simple or pure donation is one whose cause is pure liberality (no
strings attached), while an onerous donation is one which is subject to
burdens, charges or future services equal to or more in value than the thing
donated. Under Article 733 of the Civil Code, donations with an onerous
cause shall be governed by the rules on contracts; hence, the
formalities required for a valid simple donation are not applicable.
Even conceding that LAGAZO's full payment of the purchase
price of the lot might have been a burden to him, such payment
was not however imposed by the donor, Catalina, as a condition for
the donation. Rather, the deed explicitly stated that Catalina
donated to LAGAZO said property as an act of liberality and
generosity and considering that the latter is her grandson, said land
and all its improvements, free from all liens and encumbrances and
charges whatsoever.
It is clear that the donor did not have any intention to burden
or charge LAGAZO as the donee. The words in the deed are in fact
typical of a pure donation. The payments made by LAGAZO, as
found by the Court of Apepals were merely his voluntary acts. This
much can be gathered from his testimony in court, in which he
never even claimed that a burden or charge had been imposed by
his grandmother.
The payments even seem to have been made pursuant to the
power of attorney executed by Catalina in favor of LAGAZO, her
grandson, authorizing him to execute acts necessary for the
fulfillment of her obligations. Nothing in the records showed that
such acts were meant to be a burden in the donation.
As a pure or simple donation, the following provisions of the
Civil Code are applicable:
Art. 734. The donation is perfected from the moment
the donor knows of the acceptance by the donee.
Art. 746. Acceptance must be made during the lifetime
of the donor and the donee.
Art. 749. In order that the donation of an immovable
may be valid, it must be made in a public instrument,
specifying therein the property donated and the value of the
charges which the donee must satisfy.
The acceptance may be made in the same deed of
donation and in a separate public document, but it shall not
take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument,
the donor shall be notified thereof in authentic form, and this
step shall be noted in both instruments.
Like any other contract, an agreement of the parties is
essential. The donation, following the theory of cognition, is
perfected only upon the moment the donor knows of the
acceptance by the donee." Furthermore, if the acceptance is made
in a separate instrument, the donor shall be notified thereof in an
authentic form, and this step shall be noted in both instruments.
Acceptance of the donation by the donee is, therefore,
indispensable; its absence makes the donation null and void. The
perfection and the validity of a donation are well explained by
former Sen. Arturo M. Tolentino in this wise:
. . . Title to immovable property does not pass from the
donor to the donee by virtue of a deed of donation until and
unless it has been accepted in a public instrument and the
donor duly notified thereof. The acceptance may be made in
the very same instrument of donation. If the acceptance does
not appear in the same document, it must be made in
another. Solemn words are not necessary; it is sufficient if it
shows the intention to accept. But in this case it is necessary
that formal notice thereof be given to the donor, and the fact
that due notice has been given must be noted in both
instruments (that containing the offer to donate and that
showing the acceptance). Then and only then is the donation
perfected. If the instrument of donation has been recorded in
the registry of property, the instrument that shows the
acceptance should also be recorded. Where the deed of
donation fails to show the acceptance, or where the formal
notice of the acceptance, made in a separate instrument, is
either not given to the donor or else not noted in the deed of
donation and in the separate acceptance, the donation is null
and void.
The deed of donation did not show any indication that
LAGAZO accepted the gift or donation. It was only after the Court
of Appeals had rendered its decision, when he submitted an
affidavit dated 1990, manifesting that he "wholeheartedly
accepted" the lot given to him by his grandmother, Catalina. This is
too late, because arguments, evidence, causes of action and matters not
raised in the trial court may no longer be raised on appeal.
True, the acceptance of a donation may be made at any time during the
lifetime of the donor. And granting arguendo that such acceptance may still
be admitted in evidence on appeal, there is still need for proof that a formal
notice of such acceptance was received by the donor and noted in both the
deed of donation and the separate instrument embodying the acceptance. At
the very least, this last legal requisite of annotation in both instruments of
donation and acceptance was not fulfilled by LAGAZO. For this reason, the
subject lot cannot be adjudicated to him.
Hence, on the basis of the alleged donation, LAGAZO cannot be
considered the lawful owner of the subject property. However, this did not
necessarily mean that CABANLIT is automatically the rightful owner.
GESTOPA vs. CA
GR No. 111904. October 5, 2000
An acceptance clause is a mark that the donation is inter vivos.
Acceptance is a requirement for donations inter vivos. Donations
mortis causa, being in the form of a will, are not required to be
accepted by the donees during the donors' lifetime.
FACTS
Spouses Diego and Catalina Danlag were the owners of 6 parcels of
unregistered lands. They executed three deeds of donation mortis causa, in
favor of private respondent MERCEDES DANLAG-PILAPIL. The first deed
pertained to parcels 1 & 2 while the second deed pertained to parcel 3. The
third deed pertained to parcel 4. All deeds contained the reservation of the
rights of the donors (1) to amend, cancel or revoke the donation during their
lifetime, and (2) to sell, mortgage, or encumber the properties donated
during the donors' lifetime, if deemed necessary.
In 1973, the Danlags, executed a deed of donation inter vivos covering
the aforementioned parcels of land plus two other parcels, respectively,
again in favor of MERCEDES. This contained two conditions, that (1) the
Danlags shall continue to enjoy the fruits of the land during their lifetime,
and that (2) the MERCEDES cannot sell or dispose of the land during the
lifetime of the said spouses, without their prior consent and approval.
MERCEDES caused the transfer of the parcels' tax declaration to her name
and paid the taxes on them.
In 1979 and 1979, respectively, the Danlags sold parcels 3 and 4 to
herein petitioners spouses AGRIPINO and ISABEL GESTOPA. Later, the
Danlags executed a deed of revocation recovering the 6 parcels of land
subject of the aforecited deed of donation inter vivos.
In 1983, MERCEDES filed with the RTC a petition against the GESTOPAs
and the Danlags, for quieting of title over the above parcels of land. She
alleged that she was an illegitimate daughter of Diego Danlag; that she lived
and rendered incalculable beneficial services to Diego and his mother, Maura
Danlag, when the latter was still alive. In recognition of the services she
rendered, Diego executed a Deed of Donation in 1973, conveying to her the 6
parcels of land. She accepted the donation in the same instrument, openly
and publicly exercised rights of ownership over the donated properties, and
caused the transfer of the tax declarations to her name. Through
machination, intimidation and undue influence, Diego persuaded the
husband of MERCEDES, Eulalio Pilapil, to buy 2 of the 6 parcels covered by
the deed of donation. Said donation inter vivos was coupled with conditions
and, according to Mercedes, since its perfection, she had complied with all of
them; that she had not been guilty of any act of ingratitude; and that
respondent Diego had no legal basis in revoking the subject donation and
then in selling the two parcels of land to the GESTOPAs.
In their opposition, the GESTOPAs and the Danlags averred that the
deed of donation dated 1973 was null and void because it was obtained by
MERCEDES through machinations and undue influence. Even assuming it was
validly executed, the intention was for the donation to take effect upon the
death of the donor. Further, the donation was void for it left the donor,
Diego Danlag, without any property at all.
In 1991, the trial court rendered a decision against MERCEDES. It
revoked the donations mortis cause and intervivos. It declared Diego as the
absolute and exclusive owner of the 6 parcels of land mentioned in the Deed
of revocation. It also ruled that the Deeds of Sale executed by Diego in favor
of the GESTOPAs were valid and enforceable. The trial court found that the
reservation clause in all the deeds of donation indicated that Diego did not
make any donation; that the purchase by MERCEDES of the two parcels of
land covered by the Deed of Donation Inter Vivos bolstered this conclusion;
that MERCEDES failed to rebut the allegations of ingratitude she
committed against Diego Danlag; and that MERCEDES committed
fraud and machination in preparing all the deeds of donation
without explaining to Diego their contents.
On appeal by MERCEDES to the Court of Appeals, the
appellate court reversed the decision of the trial court. It held that
the deed of donation dated 1973 be not revoked and that the deed
of revocation be null and void. It declared MERCEDES as the
absolute and exclusive owner of the 6 parcels of land specified in
the deed of donation inter vivos. It then declared the sale by Diego
to the GESTOPAs as null and void. It further ordered reconveyance
of the parcels of land to MERCEDES.
Hence, this appeal by the Gestopas. They argued that the
donor, Diego, did not only reserve the right to enjoy the fruits of
the properties, but also prohibited the donee, MERCEDES, from
selling or disposing the land without the consent and approval of
the Danlags. This then implied that the donor still had control and
ownership over the donated properties. Hence, the donation was
post mortem.
ISSUES
1. Whether the donation was inter vivos or mortis causa.
2. Whether or not the revocation of the donation by the
donor, Diego was valid.
RULING
(1) The donation was intervivos.
Crucial in resolving whether the donation was inter vivos or
mortis causa is the determination of whether the donor intended
to transfer the ownership over the properties upon the execution
of the deed. In ascertaining the intention of the donor, all of the
deed's provisions must be read together.
The deed of donation dated 1973 showed that Diego
donated the properties out of love and affection for the donee.
This is a mark of a donation inter vivos. Second, the reservation of
lifetime usufruct indicated that the donor intended to transfer the
naked ownership over the properties. Third, the donor reserved
sufficient properties for his maintenance in accordance with his
standing in society, indicating that the donor intended to part with
the 6 parcels of land. Lastly, the donee accepted the donation. An
acceptance clause is a mark that the donation is inter vivos.
Acceptance is a requirement for donations inter vivos. Donations
mortis causa, being in the form of a will, are not required to be
accepted by the donees during the donors' lifetime.
The right to dispose of the properties then, belonged to the
donee, MERCEDES. The donor's right to give consent was merely
intended to protect his usufructuary interests.
The attending circumstances in the execution of the subject
donation also demonstrated the real intent of the donor to transfer
the ownership over the subject properties upon its execution. Prior
to the execution of donation inter vivos, the Danlag spouses
already executed 3 donations mortis causa. If they did not intend to
donate inter vivos, they would not again donate the 4 lots already
donated mortis causa.
(2) NO, it was not valid.
A valid donation, once accepted, becomes irrevocable,
except on account of officiousness, failure by the donee to comply
with the charges imposed in the donation, or ingratitude. The
donor-spouses did not invoke any of these reasons in the deed of
revocation.
The GESTOPAs cited Mercedes' vehemence in prohibiting
the donor to gather coconut trees and her filing of instant petition
for quieting of title. There is nothing on record, however, showing
that MERCEDES prohibited the donors from gathering coconuts.
Even assuming that MERCEDES prevented the donor from
gathering coconuts, this could hardly be considered an act covered
by Article 765 of the Civil Code which provides that –
Art. 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the
following cases:
(1) If the donee should commit some offense against
the person, the honor or the property of the donor, or of his
wife or children under his parental authority;
(2) If the 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;
(3) If he unduly refuses him support when the donee is legally or
morally bound to give support to the donor. (648a)
Nor does this Article cover MERCEDES's filing of the petition for
quieting of title, where she merely asserted what she believed was her right
under the law.
Finally, the records do not show that the Danlags instituted any action
to revoke the donation in accordance with Article 769 of the Civil Code,
which provides that –
Art. 769. The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This action prescribes
within one year, to be counted from the time the donor had knowledge
of the fact and it was possible for him to bring the action.
Consequently, the supposed revocation in 1979 had no legal effect.
PERSONS WHO MAY GIVE OR RECEIVE A DONATION
ARTICLE 735: All persons who may contract and dispose of their
property may make a donation.
 It is required that the person has the capacity to contract. Who
has the capacity to contract?
1. anybody who is not a minor;
2. anybody who is not insane or not imbecile;
3. anybody who is not a deaf-mute;
4. anybody who is not prodigal;
5. those who are not in civil interdiction.
 Now who can dispose the property? The owner because it is only
the owner who has the right to dispose (jus disponendi), not the
possessor, not the usufructuary, not the lessee.
Q: Can the husband and wife donate?
A: GR: They cannot donate to each other. EXCEPT: Moderate donation on
occasion of family rejoicing only.
Q: Can the husband donate his capital property without the consent of the
wife?
A: YES. He can donate his capital property to his children (whether legitimate
or illegitimate) and to 3rd persons (to the driver, friend etc) but not to his
wife. The wife can also with respect to her paraphernal properties donate it
even without the consent of the husband.
Q: What about the conjugal property?
A: It can be disposed of as long as there is consent from both.
Q: Can one spouse donate without the consent of the other with respect to
the conjugal property?
A: GR: NO. Exceptions:
a) Moderate donation given for charity;
b) On occasion of family rejoining; or
c) On occasion of family distress.
ARTICLE 736: Guardians and trustees cannot donate the property
entrusted to them.
 The kind of donation that is being referred to here is simple
donation. So that onerous donations may be made by the trustee
provided that the donation is beneficial to the ward. In case of
onerous donations, the trustee may donate if the donation will
benefit the donee.
 This provision refers only to simple donation.
 However, if you look in the laws of guardianship, trustees and
guardians are allowed to sell the properties of their wards or the
beneficiaries where the properties can be subject to levy or
execution due to non-payment of taxes or debts. The trustees or
the guardians are allowed to pay taxes, or debts of the minor.
ARTICLE 737: The donor’s capacity shall be determined as of the
time of the making of the donation.
 Art. 737 is related to 734. When we talk of making of donation, we
are referring to the perfection of the contract.
 So when you talk of the capacity of the donor, the donor must be
capacitated to make a donation at the time of the perfection.
Example:
A donates to B on May 1; B accepts on May 5; A, the donor dies on
May 8. The acceptance was made known to A on May 10? Was the
donation perfected? No because at that time the acceptance was
made known, the donor no longer has the capacity to donate.
 Insane people who have lucid intervals can donate
during their lucid moments. Insane people who do not
have lucid moments cannot donate.
Example:
A donated on May 1 to B at that time he was insane; B accepts on
May 5 at the time A was sane, is the donation valid? Yes. Because if
you look at the provision, the capacity is determined at the time he
knows of the acceptance not at the time he made the donation.
ARTICLE 738: All those who are not specially disqualified by law
therefore may accept donations.
 We have disqualifications which we will take up under
739 and under the laws on Succession. There are also
those who are incapacitated to inherit.
ARTICLE 739: The following donations shall be void:
(1) Those made between persons who were guilty of adultery or
concubinage at the of the donation;
(2) Those made between persons found guilty of the same
criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, descendants and
ascendants, by reason of his office.
In the case referred to in #1, the action for declaration of nullity
may be brought by the spouse of the donor or donee; and the guilt
of the donor and donee may be proved by preponderance of
evidence in the same action.
1st: Those made between persons who were guilty of adultery or
concubinage at the of the donation;
 If you look at the provisions, it says guilty. Does that
mean that they have to be proven guilty beyond
reasonable doubt? NO. The adultery or concubinage
need not be proven in criminal action. It is enough that
there is a donation given by a man on his mistress. How
can we prove? When his wife files in court for the
declaration of nullity of the donation. In that case, there
can be evidence already that they have been sleeping
together in the same house, etc. Preponderance of
evidence is sufficient to show that there was
concubinage or adultery.
 If the donation took place after the commission of the
adultery, meaning naghiwalay na sila, it is said to be
valid according to some legal commentaries because it
says here, ‘who were guilty at the time of the donation.’
So if the donation was made after the affair, it does not
anymore fall under the special disqualification, unless
the consideration of the donation is the commission of
the act.
EX: H and W are husband and wife. H2 and
W2 are also husband wife. H had carnal knowledge
with W2. H2 accused W2 of adultery. H and W2
are convicted. H previously gave a gift to W2. May
W file a case that the donation is void? Yes
because at the time of the donation they were
both guilty of adultery.
- Who can raise the nullity of the donation? It is The
spouse of the donor or the donee (last par 739). Not the
donee ha himself. The donor and the donee do not have
cause of action. You cannot revoke the donation if you
are the guilty party himself. You must come to court
with clean hands. This also applies to persons who do
not have the benefit of marriage.
LIGUEZ V CA
The old man donated a parcel of land to a 15-yr old girl in order to
induce her to live with him. The SC said that the donation is void
because it is violative of Art. 739 but this old man can no longer recover the
property donated because he was the one who filed the case of illegal
transaction.
2nd: Those made between persons found guilty of the same criminal offense,
in consideration thereof;
 This particular disqualification requires conviction.
 It is made by those persons found guilty of the same criminal
offense, in consideration thereof.
 They are two parties: the donor and the donee and they are both
found guilty of the same criminal offense. So how can that happen
in relation to your criminal law, in consideration thereof? It is thru
principal by inducement and principal by direct participation.
Example:
A is the wife and then she hires B to kill her husband. The donor is the wife
and the donee is the killer. A gives B P1M in consideration of the commission
of the crime. This kind of donation is void because of moral consideration.
This provision requires that they have to be found guilty of the same crime.
 If a person insists that a donation be given so that he would, for
example, not to kill the giver or any other person, this would
tantamount to extortion or black mail. The consent of the donor is
being given only because of force, intimidation, fear, or undue
influence. Hence the donation is voidable.
 However, if the donation is made to prevent the commission of
the crime, then it is valid.
 Another thing to remember, whether the donation transpired
before the commission of the offense, or during or after, the
donation is void, for as long as it was done in consideration of the
donation. Unlike in the first instance.
3rd. Those made to a public officer or his wife, descendants and ascendants,
by reason of his office.
 The purpose for this disqualification is to prevent bribery.
However, this is case to case basis because not all gifts given to
the official fall under the disqualification.
ARTICLE 740: Incapacity to succeed by will shall be applicable to
donations inter vivos.
 If you are incapacitated to receive by will or incapacitated to be as
heir, then you are also incapacitated to become a donee.
 There are 2 KINDS of INCAPACITY to inherit:
(1) absolute incapacity. Where in no case can there be a
transmission of the inheritance. Like an infant that is
abortive cannot be a donee.
(2) relative incapacity. Where under certain conditions,
particular person cannot inherit from a particular
decedent (donor).
 Article 1027 also enumerates the following disqualification as
applied to this chapter.
The following are disqualified under Art. 1027:
1. The priest who heard the confession of the donor during his last
illness. The priest must have heard the confession of the donor and it
must be during his last illness in order for the priest to be incapacitated
but if the donor does not die right away or dies 5 days later, then the
priest is not incapacitated.
2. The minister of the gospel who extended spiritual aid to the donor
during his last illness. The same thing because he extended spiritual aid
and then the donor must die.
3. The relative of the priest or the minister of the gospel within the 4th
degree. They cannot receive some from that particular person to whom
the minister extended spiritual aid or who confessed to the priest. So
the relative of the priest and the minister cannot also receive from that
particular donor.
4. The church order chapter, community, organization or institution to
which such priest or minister may belong.
5. The guardian with respect to testamentary disposition given by a
ward in his favor before the final accounts of the guardianship have
been approved even if the testator should die after the approval
thereof; nevertheless, any provision made by the ward in favor of the
 guardian when the latter is his ascendants, descendant,
brother, sister, or spouse, shall be valid. While he is still the
guardian of the ward, he cannot receive or cannot be a donee
but after the final account of the guardianship has been
approved, so pwede na maging donee. But if the guardian is
the ascendant, descendant, brother or sister of the ward, of
course he can be a donee.
6. Physician, nurse, surgeon, health officers or druggist who
took care of the testator during his last illness. Why is it that
these people are not allowed to receive donation? They are
incapacitated because of undue influence. But of course if the
physician, nurse, surgeon, etc. is a relative, he is allowed kc
entitled naman ang relative to receive.
ARTICLE 1032. Relative incapacity by reason of unworthiness.
 The unworthiness of the donee. The donee is unworthy;
he has no right to receive from the donor.
1. Any person who has been convicted of an attempt against
the life of the donor, his/her spouse, ascendants or
descendants. So if you are convicted for attempted homicide
or attempted murder, then you cannot receive from that
particular donor but even if it is not an attempt against the
life of the donor but to his/her spouse, ascendants or
descendants, you are still unworthy to become a donee.
2. Any person who has accused the donor of a crime for which
the law prescribes an imprisonment for six years or more. If
the accusation has been found groundless.
What are the REQUISITES here?
a. If the donee accused the donor of the crime and
the crime must have a penalty of more than 6 yrs
of imprisonment.
b. The accusation was found to be groundless.
3. Any heir of full age who having knowledge of the violent
death of the testator should fail to report it to an officer of
the law.
4. Any person who has been convicted of concubinage or
adultery with the spouse of the donor.
 So as mentioned earlier, if the confession or the
extended spiritual aid or the taking care by the doctor or
the nurse and the donor survives, then the priest,
minister, doctor, nurse is not disqualified.
 What if the donee tried to kill the donor and later the
donor forgave the donee. After forgiving the donee, the
donor donated something to the donee. Is the donee
capacitated to receive? Yes, because there has been
condonation.
ARTICLE 741: Minors and others who cannot enter into a contract
may become donees but acceptance shall be done thru their
parents or legal representatives.
MINORS.
- They can become donees but they cannot become
donors. A donation made to a minor is valid provided
that the acceptance must be done thru their parents or
legal representative.
Q: May minors accept by themselves?
A: Yes, if the donation is simple except if formal acceptance is
required. If the donation is onerous and conditional, they cannot
accept it by themselves because of the burden imposed on the
donation. If that would be the case, the parents and legal
representatives must intervene. But if the minor accepts the
onerous donation, the donation is considered voidable.
- Parents cannot receive a donation in favor of their
children if the value of the donation is more than P50K
unless there is an approval from the court.
ARTICLE 742: Donations made to conceived and unborn children
may be accepted by those persons who would legally represent
them if they were already born.
 Relate this to Article 40 of the NCC. When does the
person acquire juridical personality? For the unborn
child to receive a donation, the child must be born alive if it has a
normal intrauterine life but if it has an intrauterine life of 7
months, it has to be alive for 24 hours. The child must at least
have some kind of juridical personality before a donation can be
accepted in his behalf.
ARTICLE 743: Donations made to incapacitated persons shall be
void, through simulated under the guise of another contract or thru
a person who is interposed.
 What do you mean by the incapacitated here? Incapacitated
because of 739; Art. 1027 because of undue influence and Art.
1032 due to unworthiness. If you made donations to these
people, the donation shall be void even though simulated under
the guise of another contract like contract of sale or use of
another person. The law will be frustrated if you go thru another
person or if you use another contract. Remember, if it is illegal to
donate something to your mistress it is also illegal to sell
something to her.
EXAMPLE:
A and B were paramours convicted of adultery. A donated to X, a mutual
friend thru a previous understanding that X shall donate the same thing to B.
Are the donations valid? NO, because it circumvents the law.
ARTICLE 744: Donations of the same thing to two or more different
donees shall be governed by the provisions concerning the sale of
the same thing to two or more different persons.
 This is in cross reference to Art. 1544 of double sale.
- The rule on movable property in case of double sale is that if the
same thing should have been sold to different vendees, the
ownership shall be transferred to the person who may have first
taken possession thereof in good faith.
- If it be immovable property, the ownership shall belong to the
person acquiring it who in good faith recorded it in the Registry of
Property. If there’s no inscription, the ownership shall pertain to
the person who in good faith was first in the possession and in the
absence thereof, to the person who presents the oldest title,
provided there is good faith.
ILLUSTRATION:
What if A donated to B (January 5, 2005) and then A sold the same
property to C (January 10, 2005) but C registered it on January 11, 2005, who
is the owner of the property? It is B. The donee already owns the property
donated even though the property is not yet delivered. The rule on double
sale will not apply in donation because the two are different contracts.
A sold the property first to B and then donated it to C. Will the law on
sales apply? It depends. If the property is already delivered to B, then B is the
owner. A cannot donate something that is no longer owned by him. But if it is
not yet delivered to B, A can donate to C because A is still the owner.
ARTICLE 745: The donee must accept the donation personally, or
thru an authorized person with a special power for the purpose, or
with a general and sufficient power, otherwise, the donation shall
be void.
Q: How do you accept donation?
A: Normally, you accept the donation personally. Q: What if the donee is not
around or a minor?
A: Thru an authorized person.
Q: How do you authorize this person to accept a donation?
A: He should be given either a special power of attorney for that particular
purpose – to accept the donation; or a general and sufficient power of
attorney, that is all encompassing powers. This authorization to accept for
the donee must be made in public instrument. So if you are an ordinary
agent, meaning you’re not somebody who has special power or somebody
with general or sufficient power authorized thru a public instrument, you
cannot accept on behalf of the donee. The donation shall be void.
 What is the status of the contract accepted by an unauthorized
agent? It is unenforceable.
ARTICLE 746: Acceptance must be made during the lifetime of the
donor and of the donee.

ARTICLE 747: Persons who accept donations in representation of
other who may not do so by themselves shall be obliged to make
notification and notation of which Art. 749 speaks.
 This article refers to incapacitated persons not those
incapacitated because of unworthiness or by moral
considerations. So in case of donation, notification shall
be made by the representative of the incapacitated
upon his acceptance.
ARTICLE 748: The donation of a movable may be made orally or in
writing.
An oral donation requires the simultaneous delivery of
the thing or of the document representing the right donated.
If the value of the personal property donated exceeds Five
thousand pesos, the donation and the acceptance shall be made in
writing. Otherwise, the donation shall be void.
 The formalities in this article are very important.
Without them, the donation is not only voidable but
completely void.
 FORMALITIES FOR THE DONATION OF MOVABLE
PROPERTY
 If the value of the donated movable is more than P5000,
it should always be in writing. The acceptance must also
be in writing. Hence, if the donation is made in an
affidavit and the donee merely signifies his acceptance
orally, the donation shall be null and void.
 If the value of the donated movable is P5 000 or less:
a) Can be made orally but there must be:
1. simultaneous delivery of a thing; or
2. simultaneous delivery of the document
representing the right donated.
(Acceptance may be oral or in writing,
express or implied.)
b) can be made in writing
PROBLEM:
A writes a letter to B on June 1, 2003 in which the former states
that he makes to the latter a donation or gift of a certain sum of
money (P800) which he may collect from the BPI on June 20, 2003
in order to celebrate his birthday. B receives the letter but does not
answer. On June 20, 2003, B goes to the bank which hands him the
P800 donated as the Bank has orders from A to that effect. Does
the donation produce legal effects? YES, the donation was
perfected since there was implied acceptance on B’s part. While
the donation was in writing, still his acceptance does not have to be
in writing since the donation does not exceed P5000. Had it
exceeded, acceptance in writing would have been required.
ARTICLE 749: In order that the donation of an immovable may be
valid, it must be made in a public document specifying therein the
property donated and the value of the charges which the donee
must satisfy.
The acceptance may be made in the same deed of
donation or in a separate public document, but it shall not take
effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and this step
shall be noted in both instruments.
 If the deed of donation and the acceptance are in the
same instrument:
a. The instrument must be in a public document.
b. The document must specify the property donated
and the charges if any.
 If the deed of donation and the acceptance are NOT in
the same instrument:
a. The donation must be in a public instrument or
document.
b. The document must specify the property donated
and the charges,
c. The acceptance in a separate instrument must be in a public
instrument.
d. The donor shall be notified in authentic form of the fact that
acceptance is being made or has been made in a separate
public document.
e. The fact that there has been a notification must be noted in
both instruments.
CHARGES – refers to:
a. Conditions or burdens imposed if any (but which should not
be equal in value to the realty donated)
b. Encumbrance on the property such as lease, usufruct, or
mortgage.
PAJARILLO vs. IAC
GR No. 72908. August 11, 1989
article 749
Under Art. 749, when the acceptance by the donee is made in a
separate instrument, the acceptance must be noted both in the deed
of fonation and instrument of acceptance. Its purpose it to ensure that
the acceptance of the donation was duly communicated to the donor.
This requirement may be dispensed with if the donor was actually
informed. In this case, Juana, the donor, was aware of such acceptance
(though not noted), as she confirmed it later and requested Salud, the
donee, not to register the property during her lifetime.
FACTS
The mother was Juana Balane de Suterio, who had a brother named
Felipe Balane and a sister named Perfecta Balane de Cordero. Perfecta died
in 1945 leaving inter alia a registered tract of land consisting of about 28
hectares in the barrio of Luctol, Municipality of Macalelon in Quezon
Province. In 1946, Juana and Felipe, as the only brother and sister
respectively and forced heirs of Perfecta, executed a public instrument
entitled "Extra-judicial Settlement of the Estate of the Deceased Perfecta
Balane de Cordero."
In the agreement, Juana and Felipe, in consideration of love and
affection agreed in carrying out the antemortem wish of Pefecta by donating
to private respondent SALUD SUTEXIO DE MATIAS (only niece) the 28-hectare
land Perfecta owned. It also conditioned that SALUD must assume the P1,000
obligation or debt of Perfecta’s estate with the Philippine National Bank. It
was also stated therein that SALUD accepted the said donation and
expressed her gratitude for the kindness and liberality of Juana and Felipe.
Later, SALUD executed a public instrument accepting the donation
made by Felipe and Juana. Therein, she expressed her gratitude for the
kindness and liberality of Juana and Felipe. One of the witnesses, who signed
in this document was petitioner EUFEMIA PAJARILLO.
These instruments were never registered nor was title transferred in
SALUD's name although she said she immediately took possession of the
land. Meantime, intestate proceedings were instituted on the estate of
Perfecta and the said land was among those included in the inventory of the
properties belonging to the decedent. SALUD interposed no objection to its
inclusion nor did she oppose its subsequent adjudication to her mother Juana
in the project of partition.
It was not clear if the land was ever registered in Juana's name.
However, there is evidence that Juana confirmed the earlier donation of the
land to SALUD but requested that she be allowed to possess the same and
enjoy its fruits, until her death. It has also not been controverted that Salud
paid the P1,000.00 loan for which the land was mortgaged.
In 1951, acceding to this request, she transferred the possession of the
land to her mother, who was then staying with petitioner CLAUDIO SUTERIO,
SR. and his family. During the period they were occupying the land, CLAUDIO
paid the realty taxes thereon. In 1956, Juana executed a deed of absolute
sale conveying the land to CLAUDIO for the declared consideration of
P12,000.00. In 1958, Claudio had the land registered in as name and was
issued a TCT.
CLAUDIO died in 1961 and his mother in 1963. In 1965, private
respondents spouses SALUD and PEDRO MATIAS filed a complaint for the
reconveyance of the property on the ground that the deed of sale in favor of
CLAUDIO was fictitious and its registration in his name was null and void.
SALUD alleged that she was unaware until later of the supposed sale of
the land to CLAUDIO. She faulted it as having been procured through fraud
and improper influence on her sick and aged mother. She claimed that no
compensation was actually paid by CLAUDIO and that the
transaction was deliberately concealed from her by her brother and
the defendants.
For their part, the respondents EUFEMIA PAJARILLO, CLAUDIO
SUTERIO, JR., NYMIA SUTERIO and MARILYN SUTERIO, widow and
children of CLAUDIO, assailed the donation to SALUD as legally
inefficacious and defective and contended that her complaint was
barred by prescription, estoppel and res judicata.
In 1979, the CFI of Quezon upheld the donation to SALUD and
annulled the deed of sale and the registration of the land in favor
of CLAUDIO. The defendants were required to reconvey the land to
SALUD as a result. On appeal, the decision was affirmed in toto.
Hence, this appeal by EUFEMIA, ET. AL.
They pointed out that the donation was defective in form
because of non-compliance with the requirements of the law
regarding its acceptance. They stated that SALUD’s acceptance did
not comply with Article 749 (then Article 633) of the Civil Code.
Being that the acceptance was made in a separate instrument, her
acceptance was not "noted in both instruments," meaning the
extrajudicial partition itself and the instrument of acceptance, as
required by the Civil Code.
ISSUE
Whether or not the acceptance made by SALUD was defective
in form because being that it was made in a separate instrument, it
was not noted not "noted in both instruments," that is, in the
extrajudicial partition itself and the instrument of acceptance, as
required by the Article 749 Civil Code.
RULING
NO, it was not defective. The court sustained the validity of
the donation though there was an absence of the required notation
in “both instruments” (the deed of donation and the instrument of
acceptance) as under the circumstances of the present case, a
literal adherence to the requirement of the law might result not in
justice to the parties but conversely a distortion of their intentions.
Article 749 of the Civil Code provides that –
Art. 749. x-x-x
If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and this
step shall be noted in both instruments.
There is no question that the donation was accepted by
SALUD in a separate public instrument and that it was duly
communicated to the donors, Juana and Felipe. Even EUFEMIA, ET.
AL. could not deny this. But what they contended was that such
acceptance was not "noted in both instruments," meaning the
extrajudicial partition itself and the instrument of acceptance, as
required by the Civil Code.
That is perfectly true. There was nothing in either of the two
instruments showing that "authentic notice" of the acceptance was
made by SALUD to Juana and Felipe. And while the first instrument
contains the statement that "the donee does hereby accept this
donation and does hereby express her gratitude for the kindness
and liberality of the donor," the only signatories thereof were
Felipe and Juana. That was in fact the reason for the separate
instrument of acceptance signed by SALUD a month later.
A strict interpretation of Article 749 can lead to no other
conclusion than the annulment of the donation for being defective
in form as urged by EUFEMIA, ET. AL. This would be in keeping with
the unmistakable language of the above-quoted provision.
However, we find that under the circumstances of the present
case, a literal adherence to the requirement of the law might result
not in justice to the parties but conversely a distortion of their
intentions. It is also a policy of the Court to avoid such an
intepretation.
The purpose of the formal requirement is to insure that the
acceptance of the donation is duly communicated to the donor. In
the case at bar, it was not even suggested that Juana was unaware
of the acceptance for she in fact confirmed it later and requested
that the donated land be not registered during her lifetime by
SALUD. Given this significant evidence, the Court could not in
conscience declare the donation ineffective because there was no
notation in the extrajudicial settlement of the donee's acceptance.
That would be placing too much stress on mere form over substance. It
would also disregard the clear reality of the acceptance of the donation as
manifested in the separate instrument dated and as later acknowledged by
Juana.
Hence, it was clear that Juana had no right to sell the subject land to
CLAUDIO because she was no longer its owner, having previously donated it
to her daughter SALUD., When Claudio registered the land in his name
knowing there was a flaw in his title, an implied trust was created in favor of
Salud as the real owner of the property in accordance with Article 1456 of
the Civil Code. As trustor, SALUD had every right to sue for the recovery of
the land in the action for reconveyance against Claudio's heirs.The record
showed that while the land was registered in the name of CLAUDIO in 1958,
the complaint for reconveyance was filed by SALUD in 1965, or still within the
ten-year prescriptive period.
ARTICLE 750: The donation may comprehend all the present
property of the donor, or part thereof provided he reserves, in full
ownership or in usufruct, sufficient means for the support of
himself, and of all relatives who, at the time of the acceptance of
the donations, are by law entitled to be supported by the donor.
Without such reservation, the donation shall be reduced on petition
of any person affected.
 What can the donor donate? All present property of the donor
which refers to those in which the donor can dispose of at the
time of the donation.
Provided: He reserved something for the support of himself and for his
relatives…
WHO CAN BE AFFECTED IF NO RESERVATION:
a. The donor
b. Those entitled for support
c. Creditors
DONATIONS NOT INCLUDED:
a. Onerous donation
b. Donation mortis causa
c. Donation propter nuptias
ARTICLE 751: Donations cannot comprehend future property.
By future property is understood anything which the
donor cannot dispose of at the time of the donation.
 The law defines future property as anything which the donor
cannot dispose of at the time of the donation. Future inheritance
cannot be the object of a donation.
 In the law of conditional obligations, when the suspensive
condition is fulfilled, the effects retroact to the date of
constitution of the obligation. Thus, if a person is promised with a
car if he passes the bar, may he right now donate the car to
somebody else? YES, because although right now the car may be
as to him still ‘future property’, still when he passes the bar, the
ownership retroacts to the day the obligation was constituted.
ARTICLE 752: The provisions of Article 750 notwithstanding, no
person may give or receive, by way of donation, more than he may
give or receive by will.
The donation shall be inofficious in all that it may exceed
this limitation.
 This article means that:
1. A person may not give by donation more than what he can
give by will;
2. A person may not receive by way of donation more than
what the giver may give by virtue of a will.
3. The limitation of this provision naturally applies only to
persons who have compulsory heirs at the time of his death.
4. PRESCRIPTIVE PERIOD: The action to revoke or reduce the
inofficious donation must be brought by the donor’s
compulsory heirs, within 5 years after the donor’s death.
ARTICLE 753: 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 the donor has otherwise provided.
The preceding paragraph shall not be applicable to
donations made to the husband and wife jointly, between whom
there shall be a right of accretion, if the contrary has nor been
provided by the donor.
INSTANCES WHEN ACCRETION IS PROPER:
1. In case of predecease (donee dying ahead of donor
before perfection);
2. In case of incapacity (of donee);
3. In case of refusal or repudiation (by donee).
ARTICLE 754: The donee is subrogated to all the rights and actions
which in case of eviction would pertain to the donor. The latter, on
the other hand, is not obliged to warrant the things donated, save
when the donation is onerous, in which case the donor shall be
liable for eviction to the concurrence of the burden.
The donor shall also be liable for eviction or hidden
defects in case of bad faith on his part.
 This article pertains to Subrogation. Upon the
perfection of donation, all the rights of the donor to the
thing donated shall be transmitted to the donee.
 If the donation is simple, and there is a hidden defect on
the thing donated, the donee shall not be entitled to any
indemnity. But if the donation is onerous, the donor
shall be liable for eviction.
Examples:
1. X donated to Y a parcel of land. B claimed to be the
owner and filed for ejectment. Whatever right that
X has to the parcel of land is transmitted to Y (the
donee).
2. X bought a car from Y and donated it to R but it
has hidden defect, the right of the buyer (X) to sue
the seller (Y) for breach of warranty would
appertain not to X but to R. In other words, R
would step into the shoes of X.
3. A donated to B a piece of land, which A thought
belonged to him. If the real owner should oust or
evict B, will A be responsible to B? NO, because the
donation is simple and made in good faith. But if A
knew that he did not own the land, A would be
liable because of bad faith.
4. A donated to B a piece of land worth 1M with the
condition that B would pay him only P200 000. If
the land really belongs to another (R) and A really
thought he (A) was the owner, and B is evicted,
would A be responsible? YES, even though he was
in good faith, but only up to P200 000 which was
the amount of the burden, the donation being in
part onerous.
 WHEN WARRANTY EXISTS:
a.) If donor is in bad faith;
b.) If donation is onerous;
c.) If warranty is expressly made;
d.) If donation is propter nuptias unless the contrary is
stipulated.
ARTICLE 755: The right to dispose of some of the things donated, or
of some amount which shall be a charge thereon, may be reserved
by the donor; but if he should die without having made use of this
right, the property or amount reserved shall belong to the donee.
ARTICLE 756: The ownership of property may also be donated to
one person and the usufruct to other/s, provided all the donees are
living at the time of donation.
 When one person receives the usufruct, it is understood
that the other donee receive only the naked, not the full
ownership.
 The term ‘living’ includes conceived children provided that they
are later born with the requisites mentioned in Arts. 40 and 41
respectively.
ARTICLE 757: Reversion may be validly established in favor of only
the donor for any case and circumstances, but not in favor of other
persons unless they are all living at the time of the donation.
ILLUSTRATION:
- A donated a car to Blithe, and it stated in the donation that after
5yrs, Blithe will return the car to A. Is that a valid condition? Is
that allowed? That is an example of reversion.
REVERSION. You donate something to another under a stipulation that the
thing donated will go back to you.
- What if A donated a car to Blithe and then it was stipulated that
the car will go to Joyce after 10 yrs, is that valid? Yes. But if the
reversion will go to the person who is not yet living, it is void
because it is violation of what is provided in the preceding
paragraph shall be void.
- The stipulation is void but the donation is still valid. Blithe will still
validly receive the donation. It’s just that the reversion stipulation
is void.
GR: Reversion may be validly established in favor of only the donor for any
case and circumstances. EXCEPTION: Reversion may be made to a 3rd person
provided they are living at the time of the donation.
EFFECT: Donation is valid but reversion is disregarded.
ARTICLE 758: When the donation imposes upon the donee the
obligation to pay the debts of the donor. If the clause does not
contain any declaration to the contrary, the former is understood to
be liable to pay only the debts which appear to have been
previously contracted. In no case shall the donee be responsible for
debts exceeding the value of the property donated, unless a
contrary intention clearly appears.
 When is the donee liable to pay for the debt of the donor? Only
when there is stipulation.
 Limit: It should not exceed the value of the property donated and
only to debts contracted prior to the donation.
ARTICLE 759: There being no stipulation regarding the payment of
the debts, the donee shall be responsible therefore only when the
donation has been made in fraud of creditors.
The donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did not reserve
sufficient property to pay his debts prior to the donation.
GR: When there is no stipulation, the donee is not obliged to pay the debts of
the donor. EXCEPTION: When the donation was made in fraud of creditors.
There is a presumption here.
Q: When is donation made in fraud of creditors? A: When at the time thereof
the donor did not reserve sufficient property to pay his debts prior to the
donation.
Q: What is the remedy?
A: The donation may be rescinded by the defrauded creditors. But only up to
the extent of the debts.
 The following are the instances where the donation can be
REVERTED back to the donor:
- Under Articles 739, 1027, 1031.
- But there should be a proper action for the declaration of nullity
because the donation is voidable or rescission.
REVOCATION AND REDUCTION OF DONATIONS
ARTICLE 760: Every donation inter vivos, made by a person having
no children or descendants, legitimate, or legitimated by
subsequent marriage, or illegitimate may be revoked or reduced as
provided in the next article, by the happening of any of these
events:
1. If the donor, after the donation, should have
legitimate or legitimated or illegitimate children,
even though they be posthumous;
2. If the child of the donor, whom the latter believed to
be dead when he made the donation, should turn
out to be living.
3. If the donor should subsequently adopt a minor
child.
 REQUISITES for a valid REVOCATION:
a. The situation is that there is donation made inter
vivos.
b. The status of the donor who made the donation is
that he does not have any children or descendants,
legitimate, illegitimate or legitimated.
c. After the donation, a child is born either to his wife
or to his mistress, or if she is a woman, she
delivered, a child whom he believed to be dead
when he made the donation turns out to be alive
or, after the donation the donor adopts a minor
child. (The acronym is BRA, birth, reappearance,
adoption.)
 If the court makes the decision, it is merely a declaratory
act and not revocatory because as [I've] said, the
moment the incidents enumerated happen, the
donation is deemed revoked or reduced accordingly.
ARTICLE 761: In the cases referred in the preceding article, the
donation shall be revoked or reduced insofar as it exceeds the
portion that may be freely disposed of by the will, taking into
account the whole estate of the donor at the time of the birth,
appearing or adoption of a child.
INOFFICIOUS DONATION. What will take into account here? ‘The
estate of the donor at the time of the BRA.’
Example:
In 1990, X gave to Y 1M. X does not have any children. In 1995, X
married A and they had B. At the time B was born, the estate of X is
only P500T. How do you determine the value of his estate at the
time of the birth of B?
- The birth of B is the reckoning period. You add the present
property of
500 000
+ 1M (the donated amount)
1.5 M
Then you go back to 752. In other words he cannot donate more
than the free portion of his estate. If the estate is 1.5M, the
legitime should be 750T, that is 1.5M/2. Meaning he cannot donate
more than P750T. If the free portion is 750 000 and the donation
made to Y was 1M, donation is in excess of 250T. In other words,
the donation can be reduced by 250T. That is what 761 means
taking into account the whole estate of the donor at the time of
BRA. How much was the estate at the time of birth of B? 500T and
you have to collate everything that was donated. That is the whole
estate of the donor at the time of birth. That is the estate which the
free portion shall be based.
 What if Y, the donee refuses to return the donation? X
can file a case for reduction of donation. That is the
cause of action, reduction of donation.
 But for example, at the time of birth of B, the estate of X
is zero. In this case, it can be revoked because there is
nothing to dispose. Normally, it is the reduction under
this provision. That is the 1st ground for reduction of
donation, inofficious donation under 760.
 Remember under the adoption, in the 3rd par, the child
must be a minor child. And it musts be judicially
approved adoption.
 Art. 760 applies only to donation inter vivos.
 Donation propter nuptias cannot be included here in the
computation of the estate because they can only be revoked
under the conditions mentioned in Art. 132.
 Onerous donation shall not also be included in the computation of
the net estate because they are not really donation per se. They
are contracts.
 Donations mortis causa is also included but only when the donor
dies. But they are not effective if the donor is still alive.
ARTICLE 762: Upon the revocation of 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 cannot be returned, it shall be estimated
at what it was worth at the time of the donation
.
 This will only be applied if the donation is in the form of property.
 What should the donee do if the donation is reduced because of
760? The donee must return the property, or if the property has
been sold he must return the price. Meaning the value of the sale.
 If it has been mortgaged, the donor may pay off the debts but the
donor can recover reimbursement from the donee. If the property
cannot be returned, like it was lost or destroyed, the donee must
return its value at the time of perfection of the donation.
ARTICLE 763: The action for revocation or reduction on the grounds
set forth in this Article 760 shall prescribe after four years from the
birth of the first child, or from his legitimation, recognition or
adoption, or from the judicial declaration of filiation, or from the
time information was received regarding the existence of the child
believed dead.
This action cannot be renounced, and is transmitted,
upon the death of the donor, to his legitimate and illegitimate
children and descendants.
Q: Can this action for revocation or reduction be renounced?
A: NO. According to the provision, it cannot be renounced because the
legitime is really entitled to ½. So, if the donor dies within the prescriptive
period, the action is transmitted to his children.
ARTICLE 764: The donation shall be revoked at the instance if the
donor, when the donee fails to comply with any of the conditions
which the former imposed upon the latter.
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 3rd persons, by the Mortgage Law and
the Land Registration Laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to the heirs
of the donor, and may be exercised against the donee’s heirs.
 This provision is the 2nd ground for revocation because the ground
here is non-compliance by the donee of the conditions imposed
by the donor.
 PRESCRIPTIVE PERIOD: 4 years from the date of non-compliance.
 The action may be transmitted to his heirs and may be exercised
against the donee’s heirs provided, it falls within the 4yr
prescriptive period.
 A donation may be revoked at the instance of the donor when the
donee fails to comply with any of the conditions which the former
imposed upon the latter. Exception dito when the condition is
immoral, illegal or impossible. Actually, another remedy dito is an
action for specific performance, because when the donee accepts
a donation with a condition, he is bound by such condition. So the
donor may either revoke the donation or seek its performance.
ELEMENTS:
a. There is a donation inter vivos;
b. There is a stipulation in the deed of donation that certain
conditions have to be met.
c. The donee fails to comply.
d. There is a period for the compliance of the obligation.
EFFECTS OF NON-COMPLIANCE.
1. The property donated shall be returned to the donor.
2. Any encumbrance made shall be void, as a general rule. But,
you have to take into account the provisions on the Mortgage
Law and Land Reg Law, like innocent purchaser for value.
Perhaps, the property can no longer be returned if it was sold
to an innocent purchaser for value, so the value of the
amount of the property shall be retuned to the donor.
ARTICLE 765: The donation may also be revoked at the instance of
the donor, by reason of ingratitude in the following cases:
1. If the donee should commit some offense against the person,
the honor or the property of the donor, or of his wife or
children under his parental authority.
2. If the 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.
3. If he unduly refuses him support when the donee id legally or
morally bound to give support to the donor.
 This is the 3rd ground for revoking a donation. And this is
‘acts of ingratitude’ by the donee. When we took up the
acts of unworthiness, under the provision of Succession,
we also have provisions in donation for acts of
ingratitude. According to some authors, these acts are
exclusive. If they are not included in this provision, they
are deemed excluded.
1st act: If the donee should commit some offense against the
person, the honor or the property of the donor, or of his wife or
children under his parental authority.
Do not relate this to the crimes in the RPC, like crimes against
honor, against person, and against property otherwise, you may
conclude that only those RPC crimes are included. You treat the 1st
as offense against the donor, or to his wife or children under
parental authority.
Example:
When the donee commits acts of lasciviousness against the donor.
What if the donee attempts to rape the married daughter of the
donor? Does it fall under 765? No, because children referred to
here are those under parental authority.
2nd act, the donee imputes to the donor any criminal offense.
GR: The donation shall be revoked if the donee imputes to the
donor any criminal offense, or any act involving moral turpitude,
even though he should prove it.
Exception: Unless the crime or the act has been committed against
the donee himself, his wife, or children under his authority.
3rd act, if he unduly refuses him support when the donee is legally
or morally bound to give support to the donor.
Q: What do you mean by legally or morally bound?
A: There is a court order, after the case for support is filed, the
court orders the donee to give support. The law always says
‘morally’. The donor is old, he cannot work anymore, he has no
capacity to do any kind of work, of course if you are the daughter
or son of the donor, you are morally obliged to support him.
According to the provision the refusal of the support must be
unduly unjustified. Like, what if the donee has no money also, he
has no job, or he is also handicapped that cannot be considered an
act of ingratitude.
ARTICLE 766: Although the donation is revoked on account of
ingratitude, nevertheless, the alienation and mortgages effected
before the notation of the complaint for revocation in the Registry
of Property shall subsists.
Later ones shall be void.
 If the act of ingratitude is committed before the
donation and the donor knows about it, and still the
donor donates then its an implied forgiveness. Then, he
can no longer revoke it.
Q: What happens if the property donated has been alienated by the donee
and the donee commits an act of ingratitude?
Example:
- X is the donor. He donates a parcel of land to Y and then Y sells
the land to B in 1990. And then in 1992, Y commits an act of
ingratitude against X, kunyari Y tries to rape the daughter of X.
1994, X filed a case for revocation. What happens to the
property? According to the provision, alienation and mortgage
effected before the notation of the complaint for revocation in
the Registry of Property shall subsist.
- What if X donates a parcel of land to Y and then there was act of
ingratitude committed by Y against X. And then in 1994, X files a
case for revocation, but in 1995 Y sold the property to B. The sale
or alienation is void. That is the effect.
ARTICLE 767: In the case, referred to in the first paragraph of the
preceding article, the donor shall have a right to demand from the
donee the value of the property alienated which he cannot recover
from the third persons, or the sum for which the same has been
mortgaged.
The value of the said property shall be fixed as of the
time of the donation.
 767 refers to 766, if there is an alienation made and it is valid
because it was effected before the complaint for revocation. Then
the donor can no longer recover the property from the buyer of
the donee. What can be done? The donor has the right to demand
the value of the property alienated at the time of the donation or
the sum for which the same has been mortgaged. He still has the
right to demand the value of the property.
ARTICLE 768: 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.
 We know that when the donation is revoked the donee has to
return the property itself. But 768 also provides that the fruits
also have to be returned.
 If the donation was revoked on the ground of failure to fulfill the
conditions, then all the fruits from the time of failure must be
returned to the donor.
 If it is based on BRA under 760, or ingratitude under 765, or under
771 inofficiousness, then only the fruits from the time the action
are filed, fruits accruing from the action is filed. Not from the time
of birth, not from the time of ingratitude. So that is the reckoning
period.
ARTICLE 769: The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This action prescribes
within one year, to be counted from the time the donor had
knowledge of the fact and it was possible for him to bring the
action.
 The right to revoke cannot be renounced in advance.
 It says here, ‘the action to revoke prescribes within 1 yr.’ This is
different from the other grounds which are 4 yrs. But with respect
to the acts of ingratitude, it is 1 yr from the time the donor has
knowledge of the fact and provided it was possible for him to
bring the action.
ARTICLE 770: This action shall not be transmitted to the heirs of the
donor, if the latter did not institute the same, although he could
have done so, and even if he should die before the expiration of one
year.
Neither can this action be brought against the heir of the
donee, unless upon the latter’s death the complaint has been filed.
 If you look at the other grounds, inofficiousness, failure to comply
with the conditions, can the action be transmitted? YES. It can be
transmitted from the donor to his heirs and the case can be filed
against the donee and can be transmitted to the donee.
GR: With respect to the acts of ingratitude, the right to revoke
cannot be transmitted because this right is purely personal to the
donor. Even if the act was committed against his wife, his children
under parental authority, it is still the donor who has the right to
revoke the donation.
EXCEPTIONS:
1. The heirs of the donor are allowed to continue the suit for as
long as it is within the prescriptive period of 1 yr and the
donor has already instituted the action but he dies before the
termination of the case. That is called substitution of party
under the Rules of Court.
2. If the donee kills the donor, of course he can no longer file an
action to revoke, then the heirs of the donor can file a case
for revocation.
3. If the donor dies without knowing that an act of ingratitude
was committed.
4. If circumstances clearly manifest that the donor intended to
revoke the donation but he was prevented by sickness or
insanity or fortuitous event.
ARTICLE 771: Donations which in accordance with the provisions of
Article 752, are inofficious, bearing in mind the estimated net value
of the donor’s property at the time of his death, shall be reduced
with regard to the excess; but this reduction shall not prevent the
donations from taking effect during the life donor, nor shall it bar
the donee from appropriating the fruits.
For the reduction of donations, the provisions of this
Chapter and of Articles 911 and 912 of this Code shall govern.
 771 talks about 752, estate of the donor. 771 in relation
to 752 will only apply when the donee dies.
 The value of the estate at the time of the donor's death.
So net estate = property left at the time of death less
debts and charges plus value of donations.
 COLLATION. Everything that he donated while he was
alive will have to be taken into account in determining
the net estate upon his death. You do not return the
property. You just include whatever has been donated
inter vivos in the inventory so that the net estate of the
donor can be determined. If it was found that the donor
actually donated more than the free portion of his
estate at the time of his death, then those donations are
inofficious and they have to be reduced. But this
reduction shall not prevent the donations from taking
effect during the life of the donor, nor shall it bar the
donee from appropriating the fruits. So the donations
are effective even if they are found later to be
inofficious.
Example:
X has 3 children when he died, and the value of his estate is 600T at
the time of his death. He died in 2000. In 1990, X donated to A 1M.
What do we do when he dies, we collate the property. So:
600 000
+ 1M
1.6M
The free portion is 800T, and so the inofficious donation is 200T.
Therefore, A has to return 200T to the estate.
6. The rule in this provision is similar to 760 but
remember 760 only applies when the donor has no
children or descendants at the time of the
donation. Here, the donor has children.
Example:
1. In 1990, X donated 1M to B. At the time of the donation, Y the
son of X was already conceived but not yet born. What article
should be applied?
Should we compute at the time of the birth or at the time the
donor dies?
Answer: It depends.
- If the donor did not know that Y was already conceived
and he made the donation, then 761 applies. Meaning
at the time of birth of the child, there must be
computation of his estate and there must be reduction
of the donation if it is found to be inofficious.
- But if he knew already that he is going to have a child, and just the
same he donated, then that falls under 771. There will no longer
be computation of his estate when the child is born. It will be
made upon his death and if the donation of 1M is found to be
inofficious then that is the only time that it will be reduced. So the
difference here is, when will the donation be reduced. The
computation is similar but you have to determine whether it is to
be at the time of the BRA or at the time of death.
2. B is the son of X. G is the son of B. So grandfather, father, and grandson.
B disappears for a long time and when he disappeared he had G. X did
not know that he has a grandson. X thought that B was dead, so he
donated 500T to A. Later X finds out that he had a grandson. And when
he found out, he was already a pauper. He has 1,000 and the only
property that he can run after is the donation made to A. Can the
donation made to A be reduced? If it can be reduced, when?
A: Under the rules of Succession, B is the compulsory heir of X. If B dies then
G represents B. And therefore G is entitled to the legitime. Definitely the
donation must be reduced because it impairs the legitime of B. The
reappearance of G will not affect donation made to A, hence 760 will not
apply. But 752 in relation with 771 will apply because G is the compulsory
heir. If you look at this how much is the estate? 500,000. So the legitime is
250 500. So you just deduct the 250 500 from the 500 000 = 250 000 is the
inofficious donation and should be given to G. So take note of the every word
in 760.
- In the 1st paragraph of 760, it says ‘…no children or descendant .... ’
what if the donor already has a grand child existing at the time of
donation? Then if he donates something to a stranger then there
will be no reduction or revocation because the grand child is
already there. It is only the birth, reappearance of a child, or
adoption which will give rise to the computation of his estate at
that time and then the donation will be reduced. But a reduction
will be done at the time of his death na.
Q/A: Again if the donees refuses to return the donation, who can file a case
under 752 in relation to 771, inofficious donation? The compulsory heirs, the
legitime.
Q/A: Can a donor file a case for reduction under 752 in relation to 771? NO
because he’s already dead. Take note for this particular provision, inofficious
donation under 752 in relation to 771, the donor is dead.
Q/A: Now, when we talk of adoption under 760, adoption of a minor child. If
the person being adopted is a minor, there shall be reduction. But no
donation shall be reduced if the person adopted is no longer a minor because
he can already take care of himself.
Q/A: What does 771 last par. means? Art. 911 simply says that donation inter
vivos are preferred over donation mortis causa. Meaning if there is
reduction, uunahin ang mortis causa. Meaning the provision in the will that
are not given to the legitime. Like, I will give 1M to my loyal friend, I will give
500T to my driver, or teacher. Those are the ones that must be reduced first.
The last to be reduced are the donations inter vivos. Those given last shall be
reduced first, those given first shall be the last.
ARTICLE 911: After the legitime has been determined in accordance
with the three preceeding articles, the reduction shall be made as
follows:
1. Donations shall be respected as long as the legitime can be
covered, reducing or annulling, if necessary, the devises or
legacies made in the will;
2. The reduction of the devices or legacies shall be pro-rata,
without any distinction whatever;
3. If the testator has directed that a certain devise or legacy be
paid in preference to others, it shall not suffer any reduction
until the latter have been applied in full to the payment of the
legitime;
4. If the devise or legacy consists of a usufruct or life annuity,
whose value may be considered greater than that of the
disposable portion, the compulsory heirs may choose between
complying with the testamentary provision and delivering to
the devisee or legatee the part of the inheritance of which the
testator could freely dispose.
ARTICLE 912: If the devise subject to reduction should consist of real
property, which cannot be conveniently divided, it shall go to the
devisee if the reduction does not absorb ½ of its value; and in a
contrary case, to the compulsory heirs; but the former and the
latter shall reimburse each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may retain the entire
property, provided its value does nor exceed that of the disposable
portion and of the share pertaining to him as legitime.
 The rule is that if the reduction is less than 60%, the
property will remain with the donee. The donee will just
pay in cash. If the reduction is more than 60%, the
property will go back to the estate and then the estate
will pay the donee the balance.
Example:
Here, kunyari 70% that is inofficious. What is 70% of 500T? 350T
db? So, the property will go back to the estate and the estate will
pay 150T to the donee. If what is inofficious is only 150T then the
property will remain with the donee and he just have to pay the
estate 150T. That is 912.
ARTICLE 772: Only those who at the time of the donor’s death have
a right to the legitime of the donor, either by express declaration, or
by consenting to the donation.
Those referred to in the preceeding paragraph cannot
renounce their right during the lifetime of the donor, either by
express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled
to the legitime and the creditors of the deceased can neither ask for
the reduction nor avail themselves thereof.
ARTICLE 773: If, there being two or more donations, the disposable
portions is not sufficient to cover all of them, those of the more
recent dates shall be suppressed or reduced with regard to the
excess.
CASES
ABELLO CASE.
FACTS:
1. It is a case concerning one of the senior partners of ACRA,
Manuel Abello. Some partners of ACRA law firm contributed P800K
to the campaign fund of Angara. Angara is the founding partner of
ACRA.
2. The BIR assessed each of them, divided the P800K among them.
They questioned the assessment of BIR alleging that political
contributions or electoral contributions are not considered as gifts
under the NIRC, therefore, not liable to tax. Angara said that the
contributions cannot be considered as donations because there
was no increase on his patrimony, the contributions went to the
campaign.
ISSUE: Should the contribution for the campaign fund be
considered donation?
HELD: There is still a donation although it did not go directly to the
patrimony of the donee but the fact remains that it was made in his
favor. The SC considered the contributions as donations because
there was increase in his pocket for him to spend in any he wanted
to whether for his campaign or whatever. It was definitely an
addition to his patrimony and therefore, considered a donation.
Further, one of the requisites of donation is that
the intention must be the liberality on the part of the donor. The
ACRA lawyers argued that it is important to look at the intention of
the giver to determine if the political contribution is a gift. But the
SC said NO. The donative intent is the feature of the mind, it cannot
be perceived except by the material and tangible act which
manifests its presence. The intent is presumed present when it
becomes a part of one’s patrimony. There’s a presumption of
intention. The court is not convinced the seemed purpose of the
contribution which was to help elect a candidate and with that
there was no donative intent. So it doesn’t mean just because your
work was to help him with the election there’s no donative intent.
The SC said that it is animus donandi. The fact that their purpose
for donating was to aid the election of the donee does not imply
the absence of the donative intent.
PAJARILLO CASE.
Felipe and Juana are the donors. The donee is Salud. Is the donation inter
vivos or Mortis causa? The donation is inter vivos. What about the issue on
sale? The sale is not valid. The naked ownership was transferred already to
Salud. The right to dispose belongs to Salud. What was the issue on the
acceptance? The lack of notification. You have to note that in the acceptance
of the deed of donation, the donor has to be notified; and that the
acceptance must be in the separate instrument. In this case, that particular
requirement was missing. What does the SC say? Is it a valid acceptance?
YES, it is valid. What kind of interpretation did the SC give to the provision as
to the required formality? Liberal interpretation is needed. According to the
SC, do not place too much stress on mere formality. The fact is Juana, the
donor, already knew of the acceptance. So the notification is unnecessary.
DELGADO CASE.
The issue is WON the donation is simple or onerous because the
donee had paid the taxes. The donation is simple. How can a donation
become onerous? It becomes onerous when there is a condition which is
equivalent to the donation. In this case, was there a condition here that he
must pay the taxes? None. For the donation to be onerous, the condition or
burden must be imposed by the donor. In this case, there was no imposition
on the part of the donor. It was the donee himself who decided to pay for the
taxes.
Q: What is the important in the determination WON it is onerous or simple?
A: If is onerous, the formality required is in the form of contract. But if it is a
donation of immovable property, the formality under 749 has to be complied
with.
In this case, the formality was not complied with. There was no
acceptance. What do you mean by no acceptance? The law provides that the
acceptance must be in a public document, specifying therein the property
donated and the value of the charges which the donee must specify. The
acceptance may be made in the same deed of donation or in a separate
public document, but it shall not take effect unless it is done during the
lifetime of the donor. If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and this step shall be
noted in both instruments. In this case, the donee actually informed the
donor that he accepted the donation but he did not go to the formalities
required. In the case of Pajarillo, there was liberal interpretation. But in this
case, strict interpretation. You have to look at the circumstances, the donor
in this case is out of the country, and the SC said that she should be notified.
MAGLASANG CASE.
ISSUE: WON the donation is mortis causa or inter vivos.
HELD: The deed is very clear that the donation will only become effective
upon the death of the donor. Hence, it is donation mortis causa. The SC
enumerated the characteristics of donation mortis causa:
(1) conveys no title or ownership to the transferee before the death
of the transferor;
(2) before his death, the transfer is revocable by the transferor at
will;
(3) that the transfer would be void if the transferor should survive the
transferee.
If any of these stipulations exist in the deed, it is a donation mortis causa.
And if it is a donation mortis causa, the formalities of the will are required. In
this case, the formalities of the will were not complied with, therefore, the
donation is void.
DE LUNA CASE (?)
FACTS:
1. The donation was made on April 9, 1971. It was agreed upon that the
donees should build a chapel within 5 yrs from the date of donation that is
until 1976, otherwise there shall be reversion.
2. However, the donees did not build any chapel within the 5yr period. The
donor now is claiming back the property. Donees contended that the
prescription of 4 yrs had already lapsed; hence the action for revocation is
barred. The case was filed in 1981.
3. The donors insist that the law on contracts should be applied. If the alleged
donation should be considered as contract, you will not look at the
revocation anymore. The cause of action was an action for specific
performance because of the agreement.
HELD: The SC here said that if the donation is onerous, it does not fall under
764. The difference here is that there was an agreement and therefore, the
donors could actually use that agreement. If all donations with
conditions are considered onerous, there is no longer revocation;
the prescription of 4 yrs does not apple.
VALENCIA CASE
ISSUE: WON the donation propter nuptias was valid. Valencia
alleged that the donation was not valid because there was no
acceptance. What kind of acceptance does she want? Valencia
wanted that the acceptance must be made in a public instrument
and other requirements prescribed by 764 must be complied with.
In this case, how was the acceptance made? The acceptance was
made in writing by the happening of the marriage.
HELD: The SC said that in case the marriage happens, then the
donation is impliedly accepted. So what is the rule in case of
donation propter nuptias? Under the NCC, donation propter
nuptias falls under the Statute of Frauds, meaning it must be made
in writing otherwise, it would be unenforceable but it is still valid
between the donor and the donee. Further, implied acceptance is
sufficient. In other words, if it is a donation propter nuptias, it is not
covered by the provisions of donation. Donation propter nuptias
has its own provisions. The requirement of acceptance in a
separate instrument is not required.
CRUZ CASE
The donor is childless; has no heirs, so she donated to her
grandnieces (not her compulsory heirs) and then she adopted. In
this case, after computation, it was found out that she still has
enough property. The value of the donation given to the
grandnieces did not exceed the free portion of the property at the
time of the adoption. According to the SC, the burden proof is on
the donor. If the donor wants to revoke or reduce a donation made
because of adoption, the donor has to prove that he donated more
than what he is allowed to give by will meaning he donated more
than the free portion of her property at the time of the adoption.
EDUARTE V CA
What was the act of ingratitude in this case? The falsification of
public documents. The donor wanted to revoke the donation. Can
the donation be revoked? YES. Crimes committed by the donee
against the person, the property of the donor does not need to fall
under the RPC so as to make the donation revocable as long as the
crime committed which offends the donor, then that is considered
as an act of ingratitude. All crimes which the donor showing
ingratitude are causes of revocation. Can the donor forgive the
donee? YES, here if the ground is an act of ingratitude, the donor
can forgive the donee. But if it is a crime against the RPC, even if
the donor forgives the donee, and gives the donation, it does not
mean that the donee cannot be convicted because the crime will
still remain.
OCCUPATION
Article 712. Ownership is acquired by occupation and by intellectual
creation.
Ownership and other real rights over property are
acquired and transmitted by law, by donation, by testament and
intestate succession, and in consequence of certain contracts, by
tradition.
They may be acquired by means of prescription.
2 MODES OF ACQUIRING PROPERTY.
a) Original modes - ownership is acquired by:
1. occupation – hunting, fishing, hidden treasures
2. intellectual creation – books, copyrights, patents
and letters.
- These are independent of any pre-existing rights or titles
by another.
- They are ownership acquired for the first time.
b) Derivative modes – there was already a previous owner of the
property and it was acquired and transmitted by law, by:
1. Succession
2. Donation
3. Prescription under Art. 1106
4. Law, examples Articles 153, 445, 461, 465, 466, 681, 1434,
1456. Yang 445, 461 and 466 yan yung accession noh, abandoned
river beds, formation of island, adjunction. 681 falling fruits. 1434,
estoppel, 1456 on implied trust.
5. Tradition meaning legal delivery, actual or constructive, as a
consequence of other contracts, example sale, barter, assignment
and simple loan.
MODE vs TITLE
a. Mode is the process of acquiring or transferring ownership.
Title is that which gives juridical justification for mode.
- Why did you deliver this particular thing to B? Because “I sold it”.
That is the justification, the sale. But the sale itself is not sufficient
to convey ownership. There has to be a title.
b. The proximate cause of ownership is the mode; the remote
cause is the title.
c. And a mode directly produces a real right. So when the
mode is complied with, the person to whom the thing has
been delivered has a real right over the property. But, a title
merely gives an opportunity for the existence of real right.
Article 713. Things appropriate by nature, which are without an
owner, such as animals that are the object of hunting and fishing,
hidden treasure and abandoned movables are acquired by
occupation.
 When we say "acquired by occupation" there is seizure of
corporeal things that have no owner, with the intention of
acquiring them. Abandoned movables, res derelicta and all res
nullius, there must be no intent to recover or no intent to return.
Otherwise, it will not be considered res derelicta.
 Occupation is a mode of transferring ownership.
 Also, one thing that you have to remember is that occupation
refers to personal property. You cannot acquire ownership of real
property through occupation.
 So according to 713, what are the things acquirable through
occupation? Things without an owner, i.e. fish in the ocean,
hidden treasure.
 But if you look at 718, “He who by chance discovers hidden
treasure in another’s property shall have the right granted him in
Article 438 of this Code.” How does the owner acquire the
treasure? Is accession a mode of acquiring ownership? No.
Accession is not a mode of acquiring ownership, but as the owner
of the land, you acquire the treasure through occupation. But if
you are the finder, you also acquire it through occupation but you
only get half of it if you are not a trespasser or a stranger then.
 Abandoned movables – movables in which there are no more
expectation to recover them. You want to get rid of your car, then
you abandon it on the road, with no more expectation to get back,
that could be considered abandoned. So, car, which has been
abandoned, may be acquired through occupation.
REQUISITES FOR OCCUPATION:
1. There must be a seizure or apprehension – do you have to hold or
physically possess the particular property? No. As long as you have the
right to dispose then that is considered seizure and apprehension.
2. The property seized must be a personal property;
3. The property seized must be susceptible of appropriation – Those
within the commerce of man.
4. There must be intent to appropriate
5. The requisites and condition of the law must be complied with, i.e.
acquire it in BF or GF, etc.
Art. 714. The ownership of a piece of land cannot be acquired by
occupation.
 It is very clear that a piece of land cannot be acquired
through occupation, it is never ever res nullius. If it is not
privately owned, it is owned by the State. So how do you
acquire a piece of land? Normally, you buy, pay then it is
delivered or you can own by prescription.
 OCCUPATION V PRESCRIPTION
1. In occupation, the property (because it is original mode)
has no owner; in prescription, it is already owned by
somebody else.
2. Occupation is an original mode; prescription is a
derivative mode.
3. In occupation, the periods are very short; in
prescription, the periods are no longer.
4. You can also own personal property through
prescription. You can also acquire ownership of movables or
personal property through prescription. What are the
periods? 4 years and 8 years because in these cases, there is
an original owner.
Art. 715. The right to hunt is regulated by special laws.
Art. 716. The owner of bees shall have a right to pursue them to
another’s land, indemnifying the possessor of the latter for the
damage. If the owner has not pursued the swarm, or ceases to do
so within two consecutive days, the possessor of the land may
occupy or retain the same. The owner of domesticated animals may
also claim them within twenty days to be counted from their
occupation by another person. This period having expired, they shall
pertain to him who has caught and kept them.
 Who is the owner of the swarm of bees? The owner of
the land where the beehive is located. So if they go to
the land of another, you have the right to pursue them.
But if you manage to get back your bees, you need to
indemnify the owner of the other land, i.e. kinagat yung
anak, you never know this might be asked in the bar
exam.
 2 KINDS OF ANIMALS:
a.) wild animals
b.) Domesticated animals under 716 -animals that
were once wild. So if you acquire occupation of a
wild animal and you put in your house, then it
becomes domesticated. If it goes of your property,
you are still the owner of that animal within 20
days from the time that the animal has been
occupied by another person. After the expiration
of the 20 days, the person who has caught the
animal shall be considered the new owner thereof.
Some author say that tamed pets cannot be
acquired by occupation because pets are owned
unless it is clear that they are abandoned, then
they may be acquired through occupation.
Art. 717: Pigeons and fishes which from their respective breeding
places pass to another pertaining to an different owner shall belong
to the latter, provided they have not been enticed by some article or
fraud.
 So here, once the fish goes to the property of another,
for example there is a stream, then the ownership
should pass to another. Exception there, it will not
belong the other person if the fish or pigeon has been
enticed or acquired through fraud.
Art. 718. He who by chance discovers hidden treasure in another’s
property shall have the right granted him in article 438 of this Code.
 The finding shall be publicly announced by the mayor for
two consecutive weeks in the way he deems best.
 If the movable cannot be kept without deterioration, or
without expenses which considerably diminish its value,
it shall be sold at public auction eight (8) days after the
publication.
 Six (6) months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall be
awarded to the finder The finder and the owner shall be obliged,
as the case may be, to reimburse the expenses.
Art. 719. Whoever finds a movable, which is not treasure, must
return it to the previous possessor. If the latter is unknown, the
finder shall immediately deposit it with the mayor of the city or
municipality where the finding has taken place.
VIP – favorite bar question!!!
 So there are no such things as finders keepers. If you keep
something that is owned by another, a criminal case of theft can
be filed against you. Now, if you find something that is not a
treasure, then you must return it to the owner, if the owner is
known. But if he is unknown, the finder should deposit it to the
Mayor. I don’t know if it is still applicable nowadays. There must
be an announcement by the Mayor for 2 consecutive weeks in
newspaper or like “Gikan sa Masa Para sa Masa” – he can do that
or in a public announcement.
 If the item is perishable, it has to be sold at the public auction
within 8 days after publication. I don’t know how it should be
done, maybe freeze it or so.
 Now, 6 months after publication and there’s no owner will
appear, then it shall be awarded to the finder. If there is an
owner, then the finder must be reimbursed the expenses or the
Mayor.
 Bar Question: Somebody found a wallet and gave it to the Mayor
or the Chief of Police, but the Mayor of the Chief of Police kept it.
Then he is liable for theft.
Art. 720. If the owner should appear in time, he shall be obliged to
pay, as a reward to the dins, one-tenth of the sum or the price of
the thing found.
Finder’s fee is 10% of the price of the sum of money of the thing found.
INTELLECTUAL CREATION
Art. 721. By intellectual creation, the following persons acquire
ownership:
1) The author with regard to his literary, dramatic,
historical, legal, philosophical, scientific or other work;
2) The composer; as to his musical composition;
3) The painter, sculptor, or other artist, with respect to the
product of his art;
4) The scientist or technologist or any other person with
regard to the discovery or invention.
 Intellectual creation is the product of mental labor embodied in
writing or some other material form.
 The author, composer, painter, sculptor and other artists are
under the copyright law. In general, intellectual creation is the
product of mental labor, because he creates his composition, his
arts, then he becomes the owner thereof.
 The scientist or technologist is under patent law as to their
discovery or an invention.
 4 KINDS OF PEOPLE who can acquire ownership by INTELLECTUAL
CREATION.
1) the author
2) the composer
3) the painter, sculptor, or other artist
4) the scientist or technologist
 If you have a short story, and you publish it in a newspaper, the
one who bought the newspaper can get a copy of that then
convey it to another. You are still the owner of the story but no
more exclusive ownership. Because whoever reads your
 publication can exercise acts of ownership over that
particular work already.
 But the moment I disseminate it, I publish it to the
public, my exclusive ownership over the said work
ceases to exist. Except when I have it copyrighted.
 But mere circulation among close friends, few selected
people, however is not considered publication.
Art. 722. The author and the composer, mentioned in Nos. 1 and 2
of the preceding article, shall have the ownership of their creations
even before the publication of the same. Once their works are
published, their rights are governed by the Copyright laws.
 The painter, sculptor or other artist shall have dominion
over the product or his art before it is copyrighted.
 The scientist or technologist has the ownership of his
discovery or invention before it is patented.
Q/A: When shall they have ownership of their creation? With
respect to the author and the composer, it says “even before the
publication”.
Art. 724. Special laws govern copyright and patent.
RA 6293 – The Intellectual Property Code of the Philippines
1. What are included in the term intellectual property
rights?
Section 4. Definitions –The term “intellectual property rights”
consist of:
a) Copyright and Related Rights
b) Trademark and Service Marks
c) Geographic Indications
d) Industrial Designs
e) Patents
f) Lay-out Designs (Topographies) of Integrated Circuits
and
g) Protection of Undisclosed Information
Section 3. International Convention and Reciprocity – Any person
who is a national or who is domiciled or has a real and effective
industrial establishment in a country which is a party to any
convention, treaty or agreement relating to intellectual property
rights or the repression of unfair competition, to which the
Philippines is also a party, or extends reciprocal rights to nations of
the Philippines by law, shall be entitled to benefits to the extent
necessary to give effect to any provision of such convention, treaty
or reciprocal law, in addition to the rights which any owner of an
intellectual y property right is otherwise entitled by this Act.
Who are protected by this law?
a.) This law is made available to “any person who is a
national or who is domiciled or has a real and
effective industrial establishment in a country
which is also a party to a Convention or a treaty or
agreement relating to intellectual property rights
to which the Philippines is also a party, i.e. the
Vienna Convention of 1951, the Stockholm Act of
1967, the Tariff Act of 1971 and exchange notes
between US and the Philippines in 1948.
b.) Any person whose national extends reciprocal
rights to nationals of the Philippines by law.
What is this person entitled to?
- This person is entitled to benefits to any provision of such treaty
convention or reciprocal law. It is also extended to foreign
nationals for as long as the 2 requirements or either of the 2 is
present.
Governing Body of the Intellectual Property Law:
Section 5. Functions of the Intellectual Property Office (IPO).
Section 6. The Organizational Structure of the IPO.
1. The Bureau of Patents – in charge of search and
examination of patent applications and the grant of patents.
2. The Bureau of Trademarks – search and examination of
the applications for the registration of marks, geographic
indications and other marks of ownership and the issuance of the
certificates of registration (9.1); and conduct studies and researches
in the field of trademarks in order to assist the Director General in
formulating policies on the administration and examination of
trademarks (9.2).
3. The Bureau of Legal Affairs – hear and decide
opposition to the application for registration of marks; cancellation
of trademarks; subject to the provisions of Section 64, cancellation
of patents, utility models, and industrial designs; and petitions for
compulsory licensing of patents; exercise original jurisdiction in
administrative complaints for violations of laws involving
intellectual property rights: Provided, That its jurisdiction is limited
to complaints where the total damages claimed are not less than
two hundred thousand pesos (P200,000) (10.2).
• Bar question: So if it is less than P200,000.00 and it is an administrative
complaint involving intellectual property rights, jurisdiction is with the
Bureau of Legal Affairs of the IPO.
• If the damage is more than P200, 000.00 – RTC has jurisdiction.
COPYRIGHT
 It is the exclusive right secured by law to an author or his assigns
to multiply and dispose of copies of an intellectual or artistic
creation. It is a protection of your work. It’s not a mode of
acquiring ownership but it is an intellectual creation.
 So this is just a reiteration and this is emphasized from the fact
the ownership is acquired through intellectual creation and not
through copywriting or patenting.
 Objectives: To encourage individuals to intellectual labor by
ensuring them protection and just rewards, and to secure the
society of the largest benefit of their products.
 With respect to the sculptor, painter or other artist, he should
have dominion over the product of his and even voice
copyrighted. So also whenever his artwork is done or completed,
he is already the owner.
Art. 723. Letters and other private communications in writing are
owned by the person to whom they are addressed and delivered,
but they cannot be published or disseminated without the consent
of the writer or his heirs. However, the court may authorized their
publication or dissemination if the public good or the interest of
justice so requires.
 So when we talk about letters and other private communication,
there are actually 2 OWNERS:
a. The OWNER of the letter itself – he is the
recipient.
b. The WRITER or SENDER – the owner of the
thoughts and ideas in the letter.
Example:
Blithe is the recipient of the letter, hence, the owner of the letter. She
may throw it away or pick it or burn it, but she cannot publish it
because the thought and ideas belong to A, if A was the writer.
EXCEPTIONS:
a. Consent of the writer or his heirs;
b. The court authorizing its publication if the public good
or the interest of justice so requires.
 EXCEPTIONS TO THE EXCEPTION:
1. The publication is necessary for the vindication of the character of
the person to whom the letter is addressed;
2. The letter is produced as evidence in court in the course of the
administration of justice, except when the letter constitutes a
privilege communication and cannot be admitted in evidence
without the consent of the writer.
Remember: Concepts, theories, speculations, abstract of ideas, however
original they may be are not covered by the protection. Why? Because there
is no such thing as monopoly of theories of the author. He may transfer these
theories or ideas into an intellectual creation like books, etc. These
are exclusively his.
Example:
Einstein is known for the theory of relativity. He writes a book
regarding his theory, yung kanyang form, style andun sa kanyang
libro. Now another scientist would make the same dissertation on
the theory of relativity of matter. Do you think he would infringe on
the right of Einstein?
A: If you write on something affecting the same theory or idea,
there is no infringement. Kasi sabi nga there is no monopoly of
idea. Ideas are there, it is up to you to create something out of the
said idea.. but the moment you copy the form, the substance, the
style of the work of an author, then you are liable for infringement.
But ideas, concepts and speculations alone, no infringement.
NB: Copyright does not extend to format of a dating game show.
 Copyright extends to adaptations of the original work.
The author has the right to make a translation,
adaptation, abridgement, illustration, etc. and these
may be covered by another copyright. So that these may
be copyrighted. But a copyright given to these
abridgement, etc may refer only to those things not
covered by the original work. Kunwari may humingi ng
permiso sa kanya na gumawa ng translation ng work. So
he (the translator) is given a copyright of the translated
work, but does his copyright include those which are
covered by the original copyright? No, dun lang sa bago.
Only those parts that are new are the ones protected by
the new copyright.
LIMITATIONS ON COPYRIGHT:
1. Presentation or performance, if done privately free of
charge or for charitable or religious institutions or
society, no infringement;
2. Making of quotations for a book report, no
infringement, provided you have to place the name of
the author;
3. The reproduction and communication to the public by
mass media of articles and other current political, social
or economic, religious topic for information purposes --
again you have to name your sources.
4. Reports of current events;
5. Educational purposes, teaching purposes;
6. The recording in schools and the use of such broadcast
for the use of the school;
7. Making of a temporary recordings;
8. Criticisms, comments, research, etc.
9. Private reproduction of a single copy for research and
private study.
10. Archival purposes;
11. Computer program and one back up copy for archival
purposes (requisites: one copy is made; that such copy
is made by the owner of the program or item, or at least
you are authorized to make computer; the purpose of
the reproduction is legal.)
 So if you are an author and it is published in a journal
(law journal, etc), once it is published there you are
open to criticism. So if they use your work to prove their
point, would there be an infringement of copyright? No.
Criticisms are meant to balance the monopoly being
enjoyed by the authors with interest of the public and
society.
 Commissioned work: I ask you to make a novel, who
owns the work? The work belongs to the person who
commissioned. The copyright belongs to the person who
commissioned and the creator. Of course this is subject
to the agreement between the parties.
THE LAW ON PATENTS
PATENT is a grant made by the government to an inventor conveying and
securing to him the exclusive right to make use of his invention for a given
limited period.
REQUISITES:
1. new (prior art)
2. involves an inventive step,
3. industrially applicable (capable of some beneficial use)
Example:
If you are an inventor and you know how to turn water into gasoline, you can
have that patented but only for a limited period. What you get is the
exclusive right to use your invention.
What is patentable? (bar question…) Sec. 21.
Section 21. Patentable Inventions. – Any technical solution of a
problem in any field of human activity which is new, involves an
inventive step and is industrially applicable shall be patentable. It
may be or may relate to, a product, or process, or an improvement
of any of the foregoing.
Section 23. Novelty – An invention shall not be considered new if it
forms part of a prior art.
 When is an invention considered new?
First, when it is novel, meaning bago. It is novel when it does not form
part of a prior art.
- What is prior art?
Sec. 24. Prior art is “everything which has been made available to
the pubic anywhere in the world, before the filing date or the
priority date of the application claiming the invention.”
Example:
So if you invent a robot and you want to apply patent for your robot but if
that particular robot has already been available to the public in Japan or in
the US, then that is not considered new, that is already considered prior art.
 If it is already known, publicly used, already patented, described,
identified, registered somewhere else, that is already prior art.
And therefore it is not new and not patentable.
MAGUAN V. CA
According to SC, for an invention to be patentable, it must possess the
following:
c. novelty;
d. originality
e. and precedence.
A patent issued for powder puffs lacks novelty. Powder puffs are used since
time immemorial. SO it lacks novelty and this patent may be cancelled in an
action for infringement thereof. The burden of proving novelty is on him who
avers it.
MANZANO V CA
Who has the burden of proving the novelty? The person who is against the
application has the burden of proof.
What is INVENTIVE STEP?
Section 26. Inventive Step – An invention involves an inventive step
if, having regard to prior art, it is not obvious to a person skilled in
the art at the time of the filing date or priority date of the
application claiming the invention.
 An inventive step can refer to a prior art, but you are actually
improving on a prior art, so it involves an inventive step if it is not
obvious to the person skilled in the art.
Example:
Inventive step is the making of an improvement on the invention. An
improvement that is patentable, if that particular step is not obvious to the
person who makes robots, so that is really an inventive step because it is not
common among robot-makers, i.e. robot which flies, something like that.
  Can you actually patent a discovery? According to Art.
722 – Yes – “the scientist or technologist has the
ownership of his discovery or invention even before it is
patented”.
 You discover a new element or a planet, can you be the
owner? No. According to Sec. 22 – discoveries, scientific
theories, and mathematical methods cannot be
registered (Sec. 22.1).
THE FF. CANNOT BE PATENTED/GROUNDS FOR THE
CANCELLATION:
1. Sec. 22.2. Schemes, rules and methods of performing mental
acts, playing games or doing business, and programs for
computers.
2. Sec. 22.3. Methods for treatment of the human or animal
body by surgery or therapy and diagnostic methods practiced
on the human or animal body. This provision shall not apply to
products and composition for use in any of these methods i.e.
how to treat a kidney failure or operate. But if you have
products like medicines, they are patentable, i.e. needles for
sewing – the needle is patentable but the process on how to
sew, it is not patentable.
3. Sec. 22.4. Plant varieties or animal breeds or essentially
biological process for the production of plants or animals. This
provision shall not apply to micro-organisms and non-
biological and microbiological processes. Provisions under this
subsection shall not preclude Congress to consider the
enactment of a law providing sui generis protection of plant
varieties and animal breeds and a system of community
intellectual rights protection.
4. Sec. 22.5: Aesthetic creations; and
5. Sec. 22.6: Anything which is contrary to public order or
morality.
Bar Question 1989: X invented a bogus-coin detector which can be
used exclusively on self-operating gambling devices otherwise
known as the “one-armed bandit”. Can X apply a patent? The
invention cannot be patented being one against public policy.
Bar question 1992: In an action for infringement of patent, the
alleged infringer, Y, defended himself, by saying:
1. That the patent issued by the patent office was not really an
invention patentable. Is that a defense? Yes. Because this
patented by Y is not patentable so wala syang na-infringe.
2. That there is no intent to infringe. No, it is not a valid defense.
Intent does not matter.
3. That there was no exact duplication of the patentee’s existing
patent but only a minor infringement.
 Who has the right to a patent?
Sec. 28 – the inventor, his heirs, or assignees.
 What if 2 or more persons made the invention?
Section 29. First to File Rule. – If two (2) or more persons have
made the invention separately and independently of each other, the
right to the patent shall belong to the person who filed an
application for such invention, or where two or more applications
are filed for the same invention, to the applicant who has the
earliest filing date or, the earliest priority date. (3rd sentence, Sec.
10, R.A. No. 165a)
Section 20. Inventions Created Pursuant to a Commission – The
person who commissions the work shall own the patent, unless
otherwise provided in the contract.
What is the earliest priority rule?
Sec. 31. Right of Priority – An application for patent filed by any
person who has previously applied for the same invention in
another country which by treaty, convention, or law affords similar
privileges to Filipino citizens, shall be considered as filed as the date
of filing the foreign application.
Example:
If an application for patent was filed in the US on Jan. 1, 05. The inventor also
applied for application of patent in the Phil, let's say Jan. 1, 06. The IPC
considers the filing date as the filing date in the foreign country, provided the
local application has taken priority (meaning may tatak na priority).
 But what are the CONDITIONS?
1. You have to state in your local application that you have filed ahead in a
foreign country;
2. It is filed within 12 months from the date the earliest foreign
application was filed;
3. A certified copy of the foreign application together with an English
translation is filed within 6 months from the date of filing in the
Philippines.
Who shall own the patent of commissioned works?
Sec. 30. Inventions Created Pursuant to a Commission – The
person who commissions the work shall own the patent, unless
otherwise provided in the contract.
Sec. 30.2. In case the employee made the invention in the course of
his employment contract, the patent shall belong to:
a) The employee, if the inventive activity is not a part of his
regular duties even if the employee uses the time, facilities, and
materials of the employer.
b) The employer, if the invention is the result of the
performance of his regularly-assigned duties, unless there is an
agreement, express or implied, to the contrary.
 In case the employee has invented something in the course of his
employment contract, the patent shall belong to him if the
inventive activity is not part of his regular duties even if the
employee uses the time given to him by his employer. But if the
invention is a result of his performance of duty to invent
something like that, then the patent should belong to the
employer.
 The right to a patent belongs to the inventor, his heirs or assigns.
If two or more persons make the invention together, co-
ownership will govern. If two person make the same invention
independent of each other, the right belongs to the first to apply
for the patent since we are now following the first to file rule. The
person commissioning shall own the patent.
 NB: In copyright, the person commissioning shall own the work,
but the copyright shall be co-owned by the creator and the
commissioning person. In patents, the person who commissioned
the work owns the patent.
Section 32. The Application. The patent application shall be in
Filipino or English and shall contain the following:
a) A request for the grant of a patent;
b) A description of the invention;
c) Drawings necessary for the understanding of the
invention;
d) One or more claims; and
e) An abstract.
 The 6th is the name of the inventor.
 If the applicant is not the inventor, the IPO may require him to
submit authority to apply. So he becomes the inventor himself.
 When shall a patent take effect? Sec. 50 – It is not the date of
application, not the date of approval, but the date of publication
of the grant of the patent in the IPO Gazette.
 TERM OF THE PATENT: 20 years from the filing of the application.
GROUNDS FOR CANCELLATION:
Sec. 61:
a) That what is claimed as the invention is not new or
patentable;
b) That the patent does not disclose the invention in a
manner sufficiently clear and complete for it to be carried out by
any person skilled in the art; or
c) That the patent is contrary to public order or morality.
  Who may file a case for cancellation? “Any person” –
Section 61.1.
If the patent is cancelled, what is the effect of the cancellation?
Sec. 66. Effect of Cancellation of Patent or Claim The rights
conferred by the patent for any specified claim or claims cancelled
shall terminate. Notice of the cancellation shall be published in the
IPO Gazette. Unless restrained by the Director General, the decision
or order to cancel by Director of Legal Affairs shall be immediately
executory even pending appeal.
- You remember what is the rights of patentee? To use
his invention. So, what is the exception of the
cancellation? A: If it is restrained by the Director-
General.
Section 67. Patent Application by Persons Not Having the Right to
a Patent. If a person conferred to in Section 29 other than the
applicant, is declared by final court order or decision as having the
right to the patent, such person may, within 3 months after the
decision has become final:
a) Prosecute the application as his own application in place
of the applicant;
b) File a new patent application in respect of the same
invention;
c) Request that the application be refused; or
d) Seek cancellation of the patent, if one has already been
issued.
 Ang nangyari dito, the application was filed under the
first to file rule, but it was discovered that there was an
earlier filing abroad made by another. So, if the person
referred to in Section 29, who have filed in earlier
priority date, shall be declared by final order as having
the right of patent and within 3 months after the
decision has become final, prosecute the application as
his own application in replace of the applicant because
so pwede na.
Section 68. Remedies of the True and Actual Inventor – If a person,
who was deprived of the patent without his consent or through
fraud is declared by final court order or decision to be the true and
actual inventor, the court shall order for his substitution as
patentee, or at the option of the true inventor, cancel the patent,
and award actual and other damages in his favor if warranted by
the circumstances. (Sec.33, RA No. 165a)
Section 69. Publication of the Court Order – The court shall furnish
the Office a copy of the order or decision referred to in Section 67
and 68, which shall be published in the IPO Gazette within three (3)
months from the date such order or decision became final and
executory, and shall be recorded in the register of the Office.
Section 70. Time to File Action in Court – The actions indicated in
Section 67 and 68 shall be filed within one (1) years from the date of
publication made in accordance with Sections 44 and 51,
respectively.
Section 71.1 Rights Conferred by Patent – A patent shall confer on
its owner the following exclusive rights:
a) Where the subject matter of a patent is a product, to
restrain, to prohibit and prevent any unauthorized person or entity
from making, using, offering for sale, selling or importing that
product;
b) Where the subject matter of a patent is a process to
restrain, prevent or prohibit any unauthorized person or entity from
using the process, and from manufacturing, dealing in, using, selling
or offering for sale, or importing any product obtained directly or
indirectly from such process.
Sec. 71.2. Patent owners shall have the right to assign, or transfer
by succession the patent, and to conclude licensing contracts for the
same.
 These are the rights conferred by patent and these are the same
rights removed if the patent is being cancelled under Section 60.
Sec. 73.1. Rights of Prior user. Any prior user, who, in good faith
was using the invention or has undertaken serious preparations to
use the invention in his enterprise or business, before the filing date
or priority date of the application on which a patent is granted,
shall have the right to continue the use thereof as envisaged in such
preparations within the territory where the patent produces its
effect.
 So far if you are the user of a particular invention before it was
registered, you have to right to continue using it under Section 73.
Section 76.1: Infringement – the making, using, offering for sale,
selling, or importing a patented product or a product obtained
directly or indirectly from a patented process, or the use of a
patented process without the authorization of the patentee
constitutes patent infringement.
Favorite bar question!
 Infringement: use one's invention w/o the inventor's authority.
 Who has jurisdiction over actions for infringement? Section 76.2.
So infringement cases falls under the jurisdiction of the RTC.
REMEDIES in case the RIGHTS of the patentee who have been infringed:
1. The court may also secure an injunction for the protection of his rights.
2. To receive reasonable royalty if the damage is inadequate or cannot be
ascertained. So paano kung maraming benta yung infringer? You can
ask for royalty.
3. To have the infringing goods, materials and implements predominantly
used in the infringement be disposed of outside the channels of
commerce or destroy it without compensation
4. And to hold the contributory infringer jointly and severally liable with
the infringer. So merong mga factory dyan na gumagawa, they can be
held jointly and severally liable with the infringer.
 Duration of the protection: As to Original and Derivative works,
the duration is during the lifetime of the author and for 50 years
after his death. If there are multiple creators, it would last during
the lifetime of the last surviving creator and 50 years after his
death.
 Photographic and Audio Visual works: 50 years.
TEST AS TO INFRINGEMENT: THE DOCTRINE OF EQUIVALENCE
- This is a test to determine infringement of patents that may have
substantial identity between patented product and the other
product.
- They are considered identical if:
a.) They perform substantially the same functions;
b.) Substantially the same way to obtain the same result even if they
differ in name, form, shape or dimension.
 What the law requires is merely substantial identity, not exact
identity between the two devices.
Sec. 72: These are not infringements:
1. When the original machinery is improved by the use of
different form or combination;
2. When the single elements in the original device is left out;
3. When the making or using of a patented invention is not
conducted for profit and solely for the purpose of research and
experiments or for instructions;
4. Preparation of medicines for individual cases in a pharmacy,
so like the doctor’s prescription;
5. When used in a foreign ship or vessel or aircraft;
6. Any prior user who in GF was using the invention (Sec. 73);
7. Used by the government or third person authorized by the
government when required by public interest such as national
security, health or development by other sectors, or used by
the government or third person when determined by judicial
or administrative body, by exploitation by the owner of the
 patent or licensee, as anti-competitive.
 On whom does the burden of proof lies? Sec. 78 – on
the patent holder who alleges that this product is similar
to yours.
 What are the DEFENSES in infringement?
a. the patent is invalid;
b. the invention is not new or not patentable,
etc.
CRIMINAL CASE:
 Can you file a criminal action right away? No, because
the ground for filing a criminal case has to be repeated
infringement, that is, Sec. 84: If the infringement is
repeated by the infringer after the finality of the

judgment of the court. X infringed the patent of Y, if X
repeats, then a criminal case may be brought.
 Prescriptive Period: 3 years from the commission of the 
crime.
 (1st offense, 1-3 years; 2nd offense 3-6 years, 3rd 6-9
years).
Bar 1985/1997: Basilio invents and secures registration of a mini-
threshing machine. Rudy, his employee, assisted him in the actual
making of the machine. Later, after resigning, Rudy bought tools
and equipment to manufacture similar mini-threshing machines for
his own benefit.
Q: What legal steps would you take as counsel of Basilio?
A: File a civil action in court for the following purposes:
a. Section 76;
b. Damages
c. Secure an injunction
d. Receive royalty
e. To have the goods, materials destroyed
f. To hold the contributory infringer jointly and
severally liable.
g. Or after final judgment, file a criminal action
for repeated infringement.
1993 Bar Question: Ferdie is a patent owner of his invention. He
discovered that his invention was infringed by Joan. What are the
remedies available to him?
A: Same.
Q: If you are the lawyer of Joan, the infringer, what are your
defenses?
A: Sec. 61, 22, 21.
TRADEMARK
TRADEMARKS: Anything which is adapted and used to identify
source or origin of goods, and which is capable of distinguishing
them from goods emanating from a competitor.
SERVICE MARK: Used to identify or distinguish the service or an
enterprise
COLLECTIVE MARK: It is a mark being used by different enterprises.
TRADE DRESS: Refers to the total image of the product, like the
size, the shape or color combinations, texture or graphics
Section 138. Certificate of Registration. When you are granted
with the certificate of registration, according to 138, a certificate of
registration of a mark shall be prima facie evidence of the:
(1) Secure validity of the registration;
(2) Registrant’s ownership of the mark. Meaning, if you
have the certificate, then you are the owner of the
mark.
(3) The registrant’s exclusive right to use the same in
connection with the goods or services and those related
thereto specified in the certificate.
- HOW MARKS ARE CREATED:
1. Use;
2. registration.
Before, we are using the First to use policy. kung sinong nakauna, sya ang
pwedeng magregister. But now, we use the FIRST TO REGISTER POLICY.
 Registration is a proof of ownership but it is not a requirement of
ownership.
 What do you mean by USE? When a person has identified in the
mind of the public the goods he manufactures or builds in his
business or services from those of others, such person has a
property right in the goodwill of such goods or services which
should be protected.
 Assuming that his mark is not registered, definitely he cannot sue

for infringement of trademarks, but he can sue for unfair
competition. 
BADGES OF PRIOR USE:
1. The use must be public so as to allow a segment of the public
to identify the mark with the goods or services (alam ng public
na pagmark na yan, ang may-ari ay si ABC enterprise)
2. The distibution of the goods must be to the public, meaning
alam ng customers, hindi lang purchasers ng malalaking
companya;
3. The mark must have been made closely associated to goods
that a prospective purchaser viewing the display would
immediately associate the mark with the goods.
 What cannot be registered in general: Immoral, scandalous,
deceptive, or contemptous, contrary to public order and morality.
 Surnames: Surname per se, kunwari dela Cruz, Dela Cruz brand for
a dress, can that be registered? No, generally names, surnames
cannot be registered because everybody has a right to use his/her
name/surname. However, while a name/surname cannot be
reserved to the exclusion of another, a combination of surname
which is distinctive, there is no hindrance to its registration.
Example, Johnson&Johnson, Proctor&Gamble,
Batacan,Montejo&Vicencio (harhar)
CANON KABUSHIKI KAISHA
The SC said that the certificate of registration confers upon the trademark
owner the exclusive right to use its own symbol only to those goods specified
in the certificates, subject to the conditions and limitations stated therein. In
this case, Canon Kabushiki Kaisha, its registration covers paints, chemicals,
toner, and dyestuff. So it cannot oppose. Canon is also used in sandals. Since
sandals are not related to paints, chemicals, toner and dyestuff which are the
goods specified in the certificate of registration of Canon Kabushiki Kaisha, it
does not have the exclusive use of the same trademark.
FABERGE, INC. V IAC
FACTS:
Co Beng Key wanted to register the trademark “Brute” to the manufactured
briefs. Petitioner opposed the petition for registration by Co Beng Key on the
ground that said trademark was similar to the symbol “Brut” which it
previously registered for after-shave lotion, shaving cream, deodorant,
talcum powder and toilet soap.
ISSUE: Should the Director of Patents deny the petition for registration by Co
Beng Kay?
HELD: NO!!! The petitioner has not ventured into the production of briefs, an
item not listed in its certificate of registration; hence, it would have no cause
of action. So, the Director of Patents can confer upon petitioner the exclusive
right to use its own symbol only to those goods specified in the certificate.
So. Co Beng Kay is allowed to use Brute for the briefs.
 The EXCEPTION to such rule is when the trademark is a WELL-
KNOWN MARK.
- Even though the goods are not similar, the owner of the well-
known can prevent third parties from using that particular mark
or any identical or similar mark in any goods. Provided:
 a. That the use of that mark in relation to those
goods and services indicate a connection
between those goods or services and the
owners of the registered mark;
b. That the interests of the owner of the
registered mark are likely to be damaged by
such use.
- If you use Palmolive for bra, then there will be an
indication that the Palmolive for bra is the same for
Palmolive for shampoo. The interest of the owner of
Palmolive would slightly be damaged. You will buy the
Palmolive bra thinking that it is produced by the
manufacturer of the Palmolive shampoo.
Section 145: The duration of trademark is 10 years, provided that
within one year from the 5th anniversary of the date of registration
of the mark, file a declaration of use and evidence to that effect.
 Prior use is not required to apply for registration for
trademark but after the registration is granted, the
registrant has to file a declaration of actual use of the
trademark or service mark that it is actually being used,
otherwise, the mark should be removed from the
register by the IPO.
 Does the certificate of registration may be renewed?
Yes, it may be renewed for the period of 10 years at its
expiration upon payment of the prescribed fee and
upon filing a request. You will not go thru the procedure
anymore.
Section 147. RIGHTS CONFERRED BY THE TRADEMARK:
 The owner of a registered mark shall have the exclusive
right to prevent third parties not having the owner’s
consent from using in the course of trade identical or
similar sings or containers for goods or services which
are identical or similar to those in respect of which the
trademark is registered.
 Take note: where such use of unregistered mark would
result in a likelihood of confusion gives right to one to
prevent other parties from using similar or identical
signs to those in respect to the trademarks which are
registered.
 The mark may be cancelled within 5 years from the date
of the registration.
Section 148. Use of Indication by third parties for purposes other
than those for which marked is used.
Example:
Paterno is the registered mark under the name of X, Y cannot be
prevented from using Paterno if Paterno is his name. But the other
party cannot register it but he can use it. The owner of the mark
cannot prevent, there is no infringement of the part of Paterno (the
3rd party). If he wants to put up coffee shop under the name of
Paterno, he cannot be prevented from using it.
CANCELLATION
- The trademark may be cancelled within 5 years from the
date of the registration.
- A petition to cancel a registration of a mark may be filed
with the Bureau of Legal Affairs by any person who
believed that he will be damaged by the registration of a
mark.
- Any person who will be damaged by the registration of a
mark may file the cancellation.
- The reckoning point for the filing of a petition for
cancellation of certificate of registration of trademark is
not from the alleged date of use but from the date the
certificate of registration was published in the Official
Gazette and issued to the registrant 5 years from the
date of publication in the IPO Gazette and issuance to
the registrant.
- However, at any time, any person may file a petition for
cancellation, if the registered mark:
1. Becomes a generic name for the goods or services, or a portion
thereof for which it is registered. Diba marami ng trademarks na
parang generic na like Band-Aid. Everybody knows what band-aid
is, but it is actually a mark. A registered mark shall not be deemed
to be the generic name of goods or services solely because such
mark is also used as a name of or identify a unique product.
o TEST AS TO THE GENERIC NAME: The primary
significance of the registered mark to the relevant
public rather than purchase motivation shall be the
test for determining whether the registered mark has
become the generic name of goods or services on or in
connection with which it has been used. So, it is not for
us to say that what is generic or not.
o But if the court decided that it is generic, then, it
should be cancelled at any time.
2. The mark has been abandoned.
3. Its registration was obtained fraudulently or contrary to the
provisions of the code.
4. If the registered mark is being used by, or which the permission
of, the registrant so as to misrepresent the source of the goods or
services on or in connection with which the mark is used.
 If the owner of the mark failed to use the mark for 3 years
uninterrupted, a case may be filed for cancellation but this has to
be proven.
BETA INDUSTRIES, LRD.
The SC said that the exclusive right to trademarks may be lost by non-use but
a petition for cancellation must be filed. When non-use of the mark is
excused? You look at Section 152. Non-use of a mark may be excused if
caused by circumstances arising independently of the will of the trademark
owner. So if it is proven that there are other circumstances independent of
the will of the trademark owner, then, it would be excused. Lack of funds
shall not excuse non-use of a mark.
SEC. 155. Remedies; Infringement.
What is infringement?
 In general, it is the used of others by a mark without the
registrant’s consent for the purpose of a reproduction or colorable
imitation off a registered mark. So, it has to be reproduction or
colorable imitation of a registered mark, service mark, trade name
with the purpose of causing confusion, to cause mistake or to
deceive or to mislead or misleading the public that such goods or
services are those of the registrant.
 Bar Question 1990: What constitutes an infringement? To answer
that properly, you go to see 155.
CASES ON COLORABLE IMITATION
AMIGO
The SC said a person could not be guilty of infringement on the basis alone of
the similarity in the sound of petitioner’s “Gold Top” with that of
respondent’s “Gold Toe”. Admittedly, the pronunciations of the two do not,
by themselves create confusion. However, the Bureau of Patents did not rely
on the idem sonans test alone. The Bureau considered the drawings and the
labels, the appearance of the labels, the lettering, and the representation of
a man’s foot wearing a sock. You have to look at the whole package and not
only on the sounds alone.
SOCIETY DE PRODUITS NESTLE V CA
HELD: Colorable imitation denotes such a close or ingenious imitation as to
be calculated to deceive an ordinary purchaser as to cause him to purchase
the one supposing it to be the other. So, it is something that would confuse
an ordinary person.
It was claimed that Master Roast and Master Blend should not be
registered because of the generic word ‘MASTER’. Sabi ng SC, generic terms
are those which constitute “the common descriptive name of an article or
substance”, like Verbana flower.
- What kind of term is Master? Master is a suggestive term brought
about by the advertising scheme of Nestle.
 - Suggestive terms are those which, in the phraseology
of one court, require “imagination, thought and
perception to reach a conclusion as to the nature of the
nature of the goods.
- So, master can be registered because it is neither
generic nor descriptive.
- According to the SC, there are 2 TESTS to determine
WON there is a colorable imitation:
a. The Dominancy Test
b. The Holistic Test
DOMINANCY TEST focuses on the similarity of the prevalent
features of the competing trademarks which might cause confusion
or deception and thus continue infringement. In dominancy test,
you have to look at the dominant features only.
HOLISTIC TEST mandates that the entirety of the marks in question
must be considered in determining confusing similarity. You have
to look at the entirety or every feature to determine if there is
colorable imitation.
ASIA BREWERY CASE
 The SC used the test of dominancy.
Two kinds of violations:
1. Unfair competition - selling goods and giving them the general
appearance of another manufacturer.
2. violation of trademarks
COLUMBIA PICTURES V CA
FACTS
Complainants COLUMBIA PICTURES, INC., ET. AL. filed a
complaint with the NBI for violation of PD No. 49 and sought its
assistance in their anti-film piracy drive. Agents of the NBI and
private researchers made discreet surveillance on various video
establishments in Metro Manila including private respondent
corporation SUNSHINE HOME VIDEO INC., owned and operated by
private respondent DANILO A. PELINDARIO.
NBI conducted a search on December 14, 1987 in the
premises of SUNSHINE. They seized various video tapes of duly
copyrighted motion pictures/films owned or exclusively distributed
by private complainants and other implements.
A trial commenced afterwards. During trial, the following facts
have been established:
(1) the seized copyrighted video tapes bearing were being
sold, leased, distributed or circulated, or offered for sale,
lease, distribution, or transferred or caused to be
transferred by SUNSHINE at their video outlets, without
the written consent of the private complainants or their
assignee;
(2) the video tapes originated from spurious or
unauthorized persons; and
(3) said video tapes were exact reproductions of the films
listed in the search warrant whose copyrights or
distribution rights were owned by complainants.
The RTC of Makati ruled against COLUMBIA, ET AL. for the
reason that the search warrant issued was a general warrant. The
same decision was sustained by the Court of Appeals.
Hence, this appeal. In its defense, SUNSHINE contended that
PD 49 (Decree on the Protection of Intellectual Property) covers
only producers who have complied with the requirements of
deposit and notice (in other words registration) under Sections 49
and 50 thereof. Absent such registration, as in this case, there was
no right created, hence, there was no infringement. They further
maintained that the complainants and their witnesses led the Court
to believe that a crime existed when in fact there was none.
SUNSHINE presented the certifications from the Copyright Section
of the National Library, to show non-registration of some of the
films of petitioners, assume no evidentiary weight or significance,
whatsoever.
ISSUE
Whether or not COLUMBIA, ET AL. has the right to file an action for
infringement against SUNSHINE when the latter sold various video tapes of
their duly copyrighted motion pictures/films they owned or exclusively
distributed, given the fact that they (COLUMBIA, ET AL.) failed to comply with
the requirements of registration under PD 49.
RULING
YES, they have the right.
The Department of Justice has resolved this legal question as far back as
December 12, 1978 in its Opinion No. 191 of the then Secretary of Justice
Vicente Abad Santos which stated that Sections 26 and 50 do not apply to
cinematographic works and PD No. 49 "had done away with the registration
and deposit of cinematographic works" and that "even without prior
registration and deposit of a work which may be entitled to protection under
the Decree, the creator can file action for infringement of its rights." He
cannot demand, however, payment of damages arising from infringement.
The same opinion stressed that "the requirements of registration and deposit
are thus retained under the Decree, not as conditions for the acquisition of
copyright and other rights, but as prerequisites to a suit for damages." The
statutory interpretation of the Executive Branch being correct, is entitled to
weight and respect.
PD 49 does not require registration and deposit for a creator to be
able to file an action for infringement of his rights. These conditions are
merely pre-requisites to an action for damages. So, as long as the
proscribed acts are shown to exist, an action for infringement may be
initiated.
Furthermore, a closer review of Presidential Decree No. 49 reveals that
even with respect to works which are required under Section 26 thereof to
be registered and with copies to be deposited with the National Library, such
as books, including composite and cyclopedic works, manuscripts, directories
and gazetteers; and periodicals, including pamphlets and newspapers;
lectures, sermons, addresses, dissertations prepared for oral delivery; and
letters, the failure to comply with said requirements does not deprive the
copyright owner of the right to sue for infringement Such non-compliance
merely limits the remedies available to him and subjects him to the
corresponding sanction.
The reason for this is expressed in Section 2 of the decree which
prefaces its enumeration of copyrightable works with the explicit statement
that "the rights granted under this Decree shall, from the moment of
creation, subsist with respect to any of the following classes of works." This
means that under the present state of the law, the copyright for a work is
acquired by an intellectual creator from the moment of creation even in the
absence of registration and deposit. As has been authoritatively clarified:
The registration and deposit of 2 complete copies or
reproductions of the work with the National Library within 3
weeks after the first public dissemination or performance of the
work, as provided for in Section 26 (PD 49), is not for the purpose
of securing a copyright of the work, but rather to avoid the penalty
for non-compliance of the deposit of said two copies and in order
to recover damages in an infringement suit.
In the case at bar, SUNSHINE could not show proof of their authority or
that there was consent from the copyright owners for them to sell, lease,
distribute or circulate petitioners' copyrighted films. That private
respondents are licensed by the Videogram Regulatory Board does not
insulate them from criminal and civil liability for their unlawful business
practices.
The essence of intellectual piracy should be essayed in conceptual terms
in order to underscore its gravity by an appropriate understanding thereof.
Infringement of a copyright is a trespass on a private domain owned and
occupied by the owner of the copyright, and, therefore, protected by law,
and infringement of copyright, or piracy, which is a synonymous term in this
connection, consists in the doing by any person, without the consent of the
owner of the copyright, of anything the sole right to do which is conferred by
statute on the owner of the copyright.
A copy of a piracy is an infringement of the original, and it is no defense
that the pirate, in such cases, did not know what works he was indirectly
copying, or did not know whether or not he was infringing any copyright; he
at least knew that what he was copying was not his, and he copied at his
peril. In determining the question of infringement, the amount of matter
copied from the copyrighted work is an important consideration. To
constitute infringement, it is not necessary that the whole or even a large
portion of the work shall have been copied. If so much is taken that
the value of the original is sensibly diminished, or the labors of the
original author are substantially and to an injurious extent
appropriated by another, that is sufficient in point of law to
constitute a piracy. The question of whether there has been an
actionable infringement of a literary, musical, or artistic work in
motion pictures, radio or television being one of fact, it should
properly be determined during the trial.
GODINESS V CA
FACTS
On July 15, 1976, the Philippine Patent Office issued a patent
to one Magdalena S. Villaruz for a utility model for a hand tractor
or power tiller. This patent was acquired by private respondent SV-
AGRO INDUSTRIES ENTERPRISES, INC., from Magdalena Villaruz, its
chairman and president, by virtue of a Deed of Assignment
executed by the latter in its favor.
In accordance with the patent, private respondent
manufactured and sold the patented power tillers with the patent
imprinted on them. In 1979, SV-Agro Industries suffered a decline
of more than 50% in sales in its Molave, Zamboanga del Sur branch.
Upon investigation, SV-AGRO discovered that power tillers similar
to those patented by it were being manufactured and sold by
petitioner PASCUAL GODINES. Consequently, SV-AGRO notified
GODINES about the existing patent and demanded that the latter
stop selling and manufacturing similar power tillers but he failed to
comply with the demand. Thereafter, SV-AGRO filed before the RTC
a complaint for infringement of patent and unfair competition.
GODINES contended, in contrast, that he did not manufacture
or make imitations or copies of plaintiffs turtle power tiller as what
he merely did was to fabricate his floating power tiller upon
specification and designs of those who ordered them but no
document was presented showing such job orders
After trial, the court held GODINES liable for infringement of
patent and unfair competition. It ordered GODINES to pay damages
to SV-AGRO’s business reputation and goodwill and for unrealized
profits during the period defendant was manufacturing and selling
copied or imitation floating power tiller. It held that it was rather
unusual for defendant to manufacture something without the
specification and designs, considering that he is an engine, by
profession and proprietor of the Ozamis Engineering shop. On the
other hand, it is also highly unusual for buyers to order the
fabrication of a power tiller or hand tractor and allow defendant to
manufacture them merely based on their verbal instructions. This
was contrary to the usual business and manufacturing practice.
Upon appeal to the Court of Appeals, the same decision was
affirmed.
Hence, this petition. GODINES maintained that he was not
engaged in the manufacture and sale of the power tillers as he
made them only upon the special order of his customers who gave
their own specifications. Hence, he averred, that he could not be
liable for infringement of patent and unfair competition and that
those made by him were different from those being manufactured
and sold by SV-AGRO.
ISSUE
Whether or not there was infringement of patent and unfair
competition since the turtle power of GODINES was similar in form
and function with that of that floating power tiller of SV-AGRO.
RULING
YES, there was.
Tests have been established to determine infringement. These
are: (a) LITERAL INFRINGEMENT; and (b) THE DOCTRINE
EQUIVALENTS.
In using literal infringement as a test, resort must be had, in
the first instance, to the words of the claim. If accused matter
clearly falls within the claim, infringement is made out and that is
the end of it. To determine whether the particular item falls within
the literal meaning of the patent claims, the Court must juxtapose
the claims of the patent and the accused product within the overall context
of the claims and specifications, to determine whether there is exact identity
of all material elements.
The trial court found that in appearance and form, both the floating
power tillers of the defendant and the turtle power tiller of the plaintiff are
virtually the same. Viewed from any perspective or angle, the power tiller of
the defendant is identical and similar to that of the turtle power tiller of
planitiff in form, configuration, design and appearance. The parts or
component., thereof are virtually the same. In operation, the floating power
tiller of the defendant operates also in similar manner as the turtle power
tiller of plaintiff. This was admitted the defendant himself in court that they
are operating on the same principles.
Moreover, it also observed that petitioner also called his power tiller as
a floating power tiller. The patent issued by the Patent Office referred to a
"farm implement but more particularly to a turtle hand tractor having a
vacuumatic housing float on which the engine drive is held in place, the
operating handle, the harrow housing with its operating handle and the
paddy wheel protective covering."
Recognizing that the logical fullback position of one in the place of
defendant is to aver that his product is different from the patented one,
courts have adopted the doctrine of equivalents which recognizes that minor
modifications in a patented invention are sufficient to put the item beyond
the scope of literal infringement. Thus, according to this doctrine, an
infringement also occurs when a device appropriates a prior invention by
incorporating its innovative concept and, albeit with some modification and
change, performs substantially the same function in substantially the same
way to achieve substantially the same result.
The reason for the doctrine of equivalents is that to permit the
imitation of a patented invention which does not copy any literal detail
would be to convert the protection of the patent grant into a hollow and
useless thing. Such imitation would leave room for indeed encourage the
unscrupulous copyist to make unimportant and insubstantial changes and
substitutions in the patent which, though adding nothing, would be enough
to take the copied matter outside the claim, and hence outside the reach of
the law.
In infringement of patent, similarities or differences are to be
determined, not by the names of things, but in the light of what elements do,
and substantial, rather than technical, identity in the test. More specifically, it
is necessary and sufficient to constitute equivalency that the same function
can be performed in substantially the same way or manner, or by the same
or substantially the same, principle or mode of operation; but where these
tests are satisfied, mere differences of form or name are immaterial.
To establish an infringement, it is not essential to show that the
defendant adopted the device or process in every particular. Proof of an
adoption of the substance of the thing will be sufficient. It may be said that
no device can be adjudged an infringement that does not substantially
correspond with the patent. But another construction, which would limit
these words to exact mechanism described in the patent, would be so
obviously unjust that no court could be expected to adopt it.
The law will protect a patentee against imitation of his patent by other
forms and proportions. If two devices do the same work in substantially the
same way, and accomplish substantially the same result, they are the same,
even though they differ in name, form, or shape.
HENG AND DEE V WELLINGTON
FACTS
Since 1938, plaintiffs ANG SI HENG and SALUSTIANA DEE were engaged
in the business of manufacturing shirts, pants, drawers, and other articles of
wear for men, women, and children. They had obtained the registration for
the said articles, the trademark of "Wellington." In the year 1940, they
registered the business name "Wellington Company," and this registration of
the name was renewed on June 11, 1946. Their invoices, stationery, and
signboard bore the trade name "Wellington Company," and in newspaper
advertisements they described their business as "Wellington Shirt Factory."
But their trademark for their articles of wear was never again registered after
August 27, 1938, neither was their trade name registered after 1946.
On May 7, 1946, defendant Benjamin Chua applied for the registration
of the business name "Wellington Department Store". His application was
approved by the Bureau of Commerce and a certificate issued in his favor. On
June 8, 1946, this business name was transferred to Wellington Department
Store, Inc., of which he was the president. But CHUA’s application with the
Bureau of Commerce for the registration of the business name tradename do not claim to have actually purchased any articles from
"Wellington Department Store" and the business name "Wellington defendant's store.
Company" applied for by plaintiffs had been renewed.
HENG and DEE filed an action in the CFI of Manila to enjoin (2) NO, there was no unfair competition.
defendants from using the business name "Wellington Department Even a name or phrase not capable of appropriation as trademark or
Store" and the corporate name "Wellington Department Store, tradename may, by long and exclusive use by a business with reference
Inc.". They alleged that the use of the words "Wellington thereto or to its products, acquire a proprietary connotation, such that the
Department Store" as a business name and as a corporate name by name or phrase to the purchasing public becomes associated with the
the defendants deceived the public into buying defendant business or the products and entitled to protection against unfair
corporation's goods under the mistaken belief that the names were competition.
the plaintiff's or, have the same source as plaintiffs' goods, thereby But in the case at bar, the principle therein enunciated cannot be made
resulting in damage to them. to apply because the evidence submitted by the appellants did not prove that
WELLINGTON DEPARTMENT STORE, INC., and BENJAMIN their business has continued for so long a time that it has become of
CHUA alleged that plaintiffs were engaged in the manufacture or consequence and acquired a goodwill of considerable value, such that its
production of clothing and keep a dry goods store for the sale of articles and products have acquired a well-known reputation, and confusion
the same. They averred that they on the other hand were keeping a will result by the use of the disputed name by the defendants' department
store for articles such as shoes, hats, toys, perfumes, bags, store.
apparels, and the like, most of which are different from those It is true that appellants' business appears to have been established a
manufactured and sold by plaintiffs. few years before the war and appellees' after liberation, yet it seems
The CFI ruled in favor of defendants. It held that the corporate appellees' business and goodwill are the products of their own individual
name "Wellington Department Store, Inc.," has not been previously initiative, not wrested by unfair competition from appellants' business and
acquired and appropriated by any person or corporation. goodwill.
Hence, this appeal by HENG and DEE. They contended the
following: PATENT TRADEMARK COPYRIGHT
1. that defendants business was similar and identical to N A grant made by the Any sign, word, or Intangible right.
theirs and that the use of the business name A government to an symbol adopted Effective from
"Wellington Department Store, Inc., misled and T inventor conveying and used by the moment of
confused the public; U and securing to him manufacturer to creation.
2. that they had acquired a property right in the name R the exclusive right to identify his goods
"Wellington;" and E make use of his and distinguish
3. that if the defendants were not liable for any invention for a given them from those
infringement of tradename, at least they were liable for period. manufactured,
unfair competition. sold, and dealt by
others.
W Bureau of Patents Bureau of
h Trademark
ISSUES e
(1) Whether or not there is deception when there is a r
similarity of trademark or tradename between a clothing e
manufacturer named “Wellington Company” and a department
store named “Wellington Department Store”. t
(2) Whether or not the similarity of said trademark or o
tradename resulted into unfair competition.
f
i
RULING l
e
(1) NO, there is no deception. C Technical solutions, Goods/services Books, letters,
While there is similarity between the trademark or o novelty, inventive lectures,
tradename, "Wellington Company” and that of "Wellington v step, industrially cinematograph
Department Store," confusion or deception can possibly result or e applicable y, photography,
arise from such similarity because the latter is a "department r designs,
store," while the former does not purport to be so. The name e drawings…
"Wellington" is admittedly the name of the trademark on the shirts, d
pants, drawers, and other articles of wear for men, women and N Methods, plants, 1. immoral; works of the
children, whereas the name used by the defendant indicates not o animal breeds, 2. insignia of government;
these manufactured articles or any similar merchandise, but a t aesthetic, contrary to Philippines ideas,
department store. Neither can the public be said to be deceived c public policy 3. name, principles,
into the belief that the goods being sold in defendant's store o portrait, methods,
originate from the plaintiffs, because the evidence shows that v signature of processes; new
defendant's store sells no shirts or wear bearing the trademark e person or
"Wellington” but other trademarks. r 4. identical miscellaneous
Neither could such deception be by any possibility produced e registered facts that
because defendant's store is situated on the Escolta, while d mark merely forms
plaintiffs' store or place of business is located in another business a. same part of news;
district far away from the Escolta. The mere fact that two or more goods/closely official texts of
customers of the plaintiffs thought of the probable identity of the related admin/legislati
products sold by one and the other is not sufficient proof of the b. cause deceit ve
supposed confusion that the public has been led into by the use of and confusion
the name adopted by the defendants. No evidence has been c. exclusive
submitted that customers of the plaintiffs had actually been misled indications
into purchasing defendant's articles and merchandise, for the very generally
witnesses who have supposedly noted the use of plaintiffs' commonly used
W Inventor, assignees The owner fr deception
h i 2. Holistic test-
o n mandates entirety
g of the marks.
c e
a m
n e
n
f t
i
l C Can be filed 1 yr. from Filed within For criminal
e a effectivity 5 yrs from action – 1 yr
? n Grounds: the time of from
D 20 yrs from 10 years from Moral right is c 1. against public policy publication commission
u application effectivity protected e 2. unclear disclosure (effectivity)
r provided that 1 yr during the l not new or patentable Grounds:
a from the 5th yr lifetime of the l anytime
t anniversary of the author and 50 a 1. generic
i date of yrs after death t name
o registration, file i 2. abando
n declaration of o ned
actual use. n 3. obtaine
E From the date of the From the date of From the date d
f cre,ation publication of creation but fraudul
f once ently
e copyrighted, it misrepresent
c is governed by D 1. patent invalid Creates no
t copyright laws. e 2. item not patentable confusion to
i f or new general public
v e
i n
t s
y e
J Bureau of legal affairs: Bureau of legal
R 1. civil action for Damages: Same with u 1. opposition to the affairs:
e damages ; measured by: unfair r application for 1. opposition to
m 2. injunction 1. reasonable competition: i registration of marks the application for
e 3. receive royalty profit 1. injunction s 2. cancellation of registration of
d 4. disposition outside 2. actual profit 2. impounding d marks marks
i the commerce made by 3. destruction i 3. cancellation of 2. cancellation of
e 5. solidary liability defendant 4. actual c patents marks
s 6. criminal case for 3. reasonable damages t 4. violations of laws 3. cancellation of
repeated one (3yrs) percentage based exemplary i provided damages patents
on the amount of damages/moral o asked less than P200 4. violations of
gross sales of 5. criminal case n In cases of laws provided
defendant. Infringement: RTC damages asked
I The making, using, Used of others An act of less than P200
n offering a product or w/o the copying, in In cases of
f process without registrant’s whole or in Infringement: RTC
r authorization from consent of part, a W Anyone Anyone
i the patentee causing reproduction or copyrightable h
n damage. colourable material o
g imitation of a without
e registered mark authority that c
m which would would cause a
e cause confusion. substantial n
n damage.
t c
d a
e n
f c
i e
n l
e
d LAW ON WATERS
T Doctrine of 1. Dominancy test- Doctrine of
e equivalence- focuses on equivalence Article 503. The following are of private ownership:
s substantial identity; similarity of the 1. Continuous or intermittent waters rising on lands of
t substantial function; prevalent features private ownership, while running through the same;
o substantial results of of the competing 2. Lakes and lagoons, and their beds, formed by nature on
f the patented and trademarks w/c such lands;
i infringing might cause 3. Subterranean waters found on the same;
n confusion or 4. Rain waters falling on said lands, as long as they remain
 within their boundaries;
5. The beds of flowing waters, continuous or intermittent,
formed by rain water and those of brooks, crossing lands
which are not of public dominion.
 In every rain or aqueduct, the water bed, banks and
floodgates shall be considered as an integral part of the
land or building for which the waters are intended. The
owners of lands, though which are along the boundaries
of which the aqueduct passes, cannot claim ownership
over it, or any right to the use of its bed or banks, unless
the claim is based on the titles of ownership specifying
the right or ownership claimed.
 Do you agree with Article 503, paragraphs 1, 3, 4? Do
you recall the provision with Article XII Section 2 of the
Constitution? “All waters of the Philippines belong to
the State”. If you read the water code, you will find out
that Article 503 has counterpart in the water code that
is in Art. 6 of the Water Code: “The following waters
found in private lands also belong to the State”.
 And what can the private person do? The owner of the
land where the water is found can use it for domestic
purposes without securing the permit.
 When will the use of water for domestic purposes be
regulated?
a. Wastage
b. in cases of emergency
Article 7 of the Water Code. Subject to the provisions of this Code,
any person who captures or collects water by means of cisterns,
tanks or pools, shall have exclusive control over such water and the
right to dispose of the same.
 So in this provision even though, the person cannot be
considered as the owner of the water, he has the right
to dispose of the water and control the same.
 It emphasized in Article 3 that all waters belong to the
State. If you look at Article 3, Section B, it cannot be a
subject to prescription. Then therefore, Article 100 of
the Water Code repeals the provisions on the Civil Code
of ownership of waters and easement relating to
waters.
Article 8: Water legally appropriated shall be subject to the control
of the appropriator.
 A person can actually build an aqueduct from the water
of the river. Now this (river) is owned by the State so
that must be appropriated.
 In the requisites, it must go through formalities
required. So this is one of the formalities, appropriation.
From the moment it reaches the appropriator’s canal or
aqueduct leading to the place where the water will be
used or stored.
What is appropriation?
Article 9. Appropriation is the acquisition of rights over the use of
waters or taking or diverting of water from its natural source.
 So again as I have told you, you can use the water from
the river but in the aqueduct, there is a need of
appropriation or for any purposes allowed by law.
So when is water appropriated?
Article 10. Provides:
1. for domestic use – washing, bathing and cooking;
2. for municipal use
Article 11: The State may declare the waters not
previously appropriated be exempt of appropriation for any or
other purposes.
- And one of the reasons is public policy, by reason of public policy.
Article 12. Waters appropriated for a particular purpose may be
applied for another purpose only upon approval of the Council and
on condition that the new use does not unduly prejudice the rights
of other permits or require an increase in the volume of water.
Article 13. Except as otherwise provided, no person including
government instrumentalities or government-owned or controlled
corporation, shall appropriate water without a water right, which
shall be evidenced by a document, known as water permit.
 So if you apply for appropriation in Article 9, what do you have to
get? Water permit in evidence that you have a water right. It is a
privilege granted by the government to use the water.
 So is there such a thing as water permit that is oral? No. There
must be an evidence of a document not verbal or oral permit.
There must be a document.
Article 14. Subject to the provisions of this Code, concerning the
control, protection, conservation, and regulation of the
appropriation and use of waters, any person may appropriate or
use natural bodies of water without securing a water permit for any
of the following:
1. Appropriation of water by means of handcarried
receptacles; and
2. Bathing or washing… and other objects of flotation.
GR: A water permit is required if you want to appropriate a water or use
natural bodies of water whether the come from the river of the bay or the
sea
EXCEPTION: Article 14 provides the exception. If you just want to get a water
by means of a “balde, planggana, whatever”, there is no need. But if it is for
irrigation, there should be permit.
 And who are qualified to exploit water natural resources permit?
Article 15 which provides that only citizens of the Philippines of
legal age as well as juridical persons.
 If you are a natural person, you must be a Filipino.
 But if you are a juridical person, there is no saying that you are a
Filipino.
 So basically, these are what we should take up. You just have to
remember that water can no longer be subject to private
ownership based on the Constitution.
REGISTRY OF PROPERTY
 What is the object of Registry of Property? According to Article
708, it is the inscription or annotation of acts or contracts relating
to the ownership of immovable property.
 So when we talk about registry of property, take note that it
refers to immovable.
 What is Registration of Property here? The Register of Deeds.
 What is the reason of registration?
a. First, is to bind the whole world.
b. Second, so that you have a right as to any
transactions pertaining to your property.
c. Third, to prevent the coalition of frauds; if you
don’t have registration then anybody can sell
without being caught.
Article 709. Titles of ownership and other rights over immovable
property which are not duly inscribed or annotated in the registry of
property shall be prejudice third persons.
H, the husband, donated a parcel of land to his mistress by way of a
simulated sale. Now the wife is suing for nullity of that particular sale. If she
does not have that deed annotated that she is suing, then the mistress can
sell it to somebody and the third person shall be considered an innocent
purchaser for value for the purpose of registration is served when there is
actual knowledge or notice.
Article 710. All documents in the Registry of Property are public
documents.