Property Reviewer -Midterms

I. PROPERTY (ART.414-426)
Art. 414 - All things which are or may be the object of
appropriation are considered either:

1. Immovable or real property; or

2. Movable or personal property

Property - may be defined as anything which is or may be the

object of appropriation. (Art. 414, NCC)

Thing - refers to those which are or may not be the object of

appropriation.

CLASSIFICATION OF THINGS:

1. Res Nullius (belonging to no one)- are things that have not

yet been appropriated.

2. Res Communes (belonging to everyone)- use and enjoyment of

the thing are given to all.

3. Res Alicujus (belonging to someone)- things privately owned.

CLASSIFICATION OF PROPERTY:

A. Mobility and non-mobility: 1. Immovable or Real Property; or

B. According to Ownership:
C. According to Alienability:
D. According to Existence:
E. According to Materiality or
Immateriality:
F. According to Dependence or
Importance:
2. Movable or Personal Property
(Art. 414, NCC)
1. Of Public Dominion; or
2. Of Private Ownership (Art.
419, NCC)
1. Within the commerce of man
2. Outside the commerce of man
1. Present property (res
existentes)
2. Future property (res
futurae)
1. Tangible or corporeal - seen
and touched
2. Intangible or incorporeal -
rights or credits
1. Principal
2. Accessory

G. According to Capability of 1. Fungible - capable of

Substitution: substitution
2. Non-fungible - not capable
of substitution
H. According to Nature or 1. Generic - group or class
Definiteness: 2. Specific - single

I. Whether in the Custody of the 1. In custodia legis

Court or Free: 2. “free” property

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REQUISITES/CHARACTERISTICS:

1. Utility - ability to serve as a means to satisfy human needs

2. Substantivity or Individuality - separate and autonomous

existence

3. Appropriability - even if not yet actually appropriated

ART. 415 - IMMOVABLE PROPERTY:

1. Land, buildings, roads and constructions of all kinds adhered to the soil;
2. Trees, plants, 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 of 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, fishponds or breeding places of
similar nature, in case their owner has placed them or preserves them
with the intention to have them permanently attached to the land and
forming a permanent part of it; the animals in these places are included;
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 the river, lake or coast;
10. Contracts for public works, and servitudes and other real rights over
immovable property.

CLASSIFICATION OF REAL PROPERTY/CLASSES OF IMMOVABLES:

1. Immovables by Nature
- are those which cannot be moved from place to place.
- such as: those mentioned in par. 1, with respect to land and
roads, and par.8 in Art. 415 of the NCC.

2. Immovables by Incorporation
- are those which are attached to an immovable in such a manner
as to form an integral part thereof.
- such as: those mentioned in par. 1 (except land and roads),
par.2,3, and 4 of Art. 415.

3. Immovables by Destination
- are those which are placed in an immovable for the use,
exploitation, or perfection of such immovable.
- such as: those mentioned in par. 4,5,6,7, and 9 of Art. 415.

4. Immovables by Analogy
- are those which are considered immovables by operation of law.
- such as: those mentioned in par. 10 of Art. 415.

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NOTES ON IMMOVABLES: Credits to Jurado!

♥ An immovable property is that which is fixed in a definite

place.
♥ Machines should be deemed personal property pursuant to a
lease agreement - is good only in so far as the contracting
parties are concerned. Hence, while the parties are bound
by the lease agreement, third persons acting in good faith
are not affected by its stipulation characterizing the
subject machinery as personal. (Serg’s V. PCI Leasing)
♥ Machineries are classified as real property but only when
they are 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 said
industry or works.
♥ A building is a real or immovable property. Whether
constructed on a land belonging to another, the building is
real property by incorporation within the meaning of par.
1 of Art. 415.
♥ An object placed on land does not become immobilized by
attachment when placed by one who has only a temporary right
to the same, such as a lessee or usufructuary.
♥ A contract of chattel mortgage is binding upon the contracting
parties applying the doctrine of estoppel, but this rule can
only be applied to a situation or controversy involving the
contracting parties only.
♥ The house, whether constructed on rented land or on land
belonging to the owner of such house, is still real property.
♥ Under the Chattel Mortgage Law, only chattels or personalty
may be the object of a contract of chattel mortgage.
♥ In order that paintings may be classified as an immovable
property, it is essential that they should have been placed
in a building by the owner of such building for use or
ornamentation in such a manner that it reveals the intention
to attach them permanently to the tenement.

ART. 416 - MOVABLE PROPERTY:

The following things are deemed to be personal property:

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

TESTS APPLIED IN ORDER TO DETERMINE MOVABILITY:

1. Whether the object can be transported from place to place;

2. Whether the change of location can take place without injury
to the immovable to which it may be attached; and
3. Whether it is not included in the enumeration found in Art.415
of the NCC.

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CLASSIFICATION OF MOVABLES:

As to their possibility of being consumed:

1. Consumables - those which cannot be used in a manner
appropriate to their nature without being
consumed.

2. Non-consumables - those which can be used in a manner

appropriate to their nature without their
being consumed.

As to their possibility of being substituted:

3. Fungibles - those which can be substituted by others of the
same kind or quality.

4. Non-fungibles - those which cannot be substituted by others

of the same kind and quality.

PROPERTY OF PUBLIC DOMINION

The following things are property of pubic dominion:

1. Those intended for public use, such as roads, canals, rivers

torrents, ports and bridges constructed by the State, banks,
shores, roadsteads, and other similar character. (Art. 420 (1))
2. Those which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth. (Art. 420 (2))
3. Property for public use, in the provinces, cities, and
municipalities, such as provincial roads, city streets,
municipal streets, squares, fountains, public waters,
promenades, and public works for public service paid for by
said provinces, cities or municipalities. (Art. 424 (1))

CHARACTERISTICS OF PROPERTY OF PUBLIC DOMINION:

Property of public dominion are outside the commerce of man.

Consequently:

1. They cannot be appropriated;

2. They cannot be the subject matter of contracts; hence, they
cannot be alienated or encumbered;
3. They cannot be acquired by prescription;
4. They cannot be subject to attachment or execution;
5. They cannot be burdened by any voluntary easement.

PATRIMONIAL PROPERTY OF THE STATE (Art. 421, 424, NCC):

Property of the State which are:

1. not intended for public use,
2. for public service,
3. for the development of national wealth,
4. property of provinces, cities, and municipalities which are
not intended for public use.

Property of Private Ownership

- consists of all property belonging to private persons, either
individually or collectively.

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 II. OWNERSHIP (ART.427-439)

Art. 427 - Ownership may be exercised over things or rights

Ownership - is the independent and general right of a person

to control a thing particularly in his possession,
enjoyment, disposition, and recovery, subject to no
restrictions except those imposed by the state or
private persons, without prejudice to the
provisions of the law.

KINDS OF OWNERSHIP:

1. Full Ownership - includes all rights of an owner.

2. Naked Ownership - right to use and the fruits has been denied.
3. Sole Ownersjip - ownership is vested in only one person.
4. Co-ownership - ownership is vested in two or more owners.

Art. 428 - The owner has the right to enjoy and dispose of a
thing, without other limitations than those
established by law.

The owner has also a right of action against the

holder and possessor of the thing in order to recover
it.

RIGHTS OF AN OWNER/ATTRIBUTES OR ELEMENTS OF OWNERSHIP:

1. Right to Enjoy: A. To possess - jus possidendi

B. To use - jus utendi
C. To the fruits - jus fruendi
D. To abuse - jus abutendi
2. Right to Dispose: A. To destroy
- jus disponendi B. To alienate
C. To transform
D. To encumber
3. Right to Vindicate: A. Pursuit
- jus vindicandi B. Recovery
4. Right to Exclude: A. To enclose, fence, or delimit
B. To repel intrusions even with
force

SUBJECT MATTER (Art. 427):

1. Thing - refers to corporeal property

2. Right - whether real or personal, refers to incorporeal
property

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CHARACTERISTICS OF OWNERSHIP:

1. General - the right to make use of all the possibilities or

utility of the thing owned, except those attached
to other real rights existing thereon.

2. Elastic - power/s may be reduced and thereafter automatically

recovered upon the cessation of limiting rights.

3. Exclusive - there can only be one ownership over a thing at

a time. There may be two or more owners but only
one ownership.

4. Perpetuity - ownership lasts as long as the thing exists.

It cannot be extinguished by non-user, but only
by adverse possession.

5. Independence - it exists without necessity of any other right.

LIMITATIONS ON OWNERSHIP:

1. General limitations
2. Limitations imposed by the owner himself.
3. Specific limitations imposed by law.
4. Inherent limitations arising from conflict with other
rights.
5. Limitations imposed by the party transmitting the property
either by contract or by will.

RIGHTS OF A PERSON OVER HIS PROPERTY:

(Arts. 428,429,430,435,437,438,440, NCC)

1. To enjoy the property

2. To dispose of the property
3. To recover the property from any holder or possessor
4. To exclude any person from the enjoyment and disposal of the
property
5. To enclose or fence his land or tenement
6. To just compensation incase of eminent domain
7. To construct any works, or make any plantation or excavation
on the surface or sub-surface of his land
8. To the ownership of all or a part of hidden treasures found
in his property
9. To the ownership of all accessions to his property.

DE FACTO CASE OF EMINENT DOMAIN:

Expropriation - the act of a government in taking privately owned

property, ostensibly to be used for purposes
designed to benefit the overall public.

♥ Expropriation resulting from the actions of nature as in a

case where land becomes part of the sea. The owner loses his
property in favor of the state without any compensation.
♥ When the sea moves towards the estate and the tide invades
it, the invaded property becomes foreshore land and passes
to the realm of the public domain.

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PRINCIPLE OF SELF HELP/DOCTRINE OF SELF HELP:

♥ The owner or lawful possessor of a thing has the right to

exclude any person from the enjoyment and disposal of the
property by the use of such force as may be necessary to repel
or prevent actual or threatened unlawful physical invasion
or usurpation of his property.
♥ Requisites:
1. Reasonable force
2. Owner or the lawful possessor is the one who will exercise
3. No delay in one’s exercise
4. Actual or threatened physical invasion or usurpation.

FORCE IN DEFENSE OF PROPERTY IS JUSTIFIED WHEN:

1. The force must be employed by the owner or lawful possessor

of the property;
2. There must be an actual or threatened physical invasion or
usurpation of the property;
3. The invasion or usurpation must be unlawful; and
4. The force employed must be reasonably necessary to repel the
invasion or usurpation.

DOCTRINE OF INCOMPLETE PRIVILAGE OR STATE OF NECESSITY:

General Rule: A person cannot interfere with the right of

ownership of another.
Requisites: 1. Interference necessary to avert an imminent and
threatened danger.
2. Damage to another is much greater than damage to
property.

LEGAL REMEDIES TO RECOVER ONE’S POSSESSION:

1. Personal Property:

a. Replevin
- a remedy for the recovery of personal property
which is governed by Rule 60 of the Rules of
Court.
2. Real Property:

a. Accion Interdictal
- a summary action to recover physical or material possession
of property.
- it must be brought in the proper MTC within 1 year from
the time the cause of action arises

b. Accion Publiciana
- an ordinary civil proceeding to recover the better right
of possession of property and is resorted to when the
dispossession has lasted for more than 1 year.
- issue involved is not possession de facto but possession
de jure of realty independent of the title.
- must be brought in the proper RTC within a period of 10
years from the time the cause of action arises.

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♥ Accion publiciana is intended for the recovery of the better
right to possess, and it is a plenary action in an ordinary
civil proceeding.
♥ Prescriptive period: It prescribes in 10 years, otherwise
the real right of possession is lost.
♥ 2 kinds of Accion Publiciana: (1) The entry was obtained
through F.I.S.T.S.; (2) Where the 1 year period for bringing
forcible entry or unlawful detainer has expired.
♥ Issue: Better right or possession

c. Accion Reivindicatoria
- an action to recover real property based on ownership.
The object is the recovery of dominion over the property
as owner.
- prescribes 10 years from the onset of the cause of action.

Requisites: 1. Thing must be real, corporeal, determinate

2. Proof of identity
3. Proof of title

♥ Accion Reivindicatoria is the action to recover ownership

over real property.
♥ Prescriptive period: It must be brought within 10 years or
30 years. 10 years, if it is ordinary prescription, and
requires good faith or just title; 30 years, if it is
extraordinary prescription, and does not require good faith
or just title.
♥ Issue: Ownership

FORCIBLE ENTRY & UNLAWFUL DETAINER:

Forcible Entry

- An action for recovery of material possession of real property

when a person originally in possession was deprived thereof by
force, intimidation, strategy, threat, stealth.

Prescriptive period: 1 year from the dispossession

Issue: Mere physical possession

Purpose of Forcible Entry: The purpose is that, regardless of

the actual condition of the title to property, the party and
peaceable and quiet possession shall not be turned out by strong
hand, violence, or terror.

Elements of Forcible Entry: F.I.S.T.S.

Force
Intimidation
Strategy
Threat
Stealth
 Prior possession is required.

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UNLAWFUL DETAINER

- An action for recovery of possession of any land or building

by a landlord, vendor, vendee, or other person against whom the
possession of the same was unlawfully withheld after the
expiration or termination of the right to hold possession, by
virtue of any contract.
-There is withholding of possession and refusal to vacate.

Prescriptive period: 1 year period - upon expiration of lease

1 year period - from the demand to vacate
 Note: The demand to vacate must be absolute and not
conditional. The demand must be made at least 5 days (building)
and 15 days (land) before the action is brought.

Issue: Possession de facto ( material possession)

 Note: Ownership is not the issue involved in an unlawful
detainer or ejectment case. (Tiu V. CA)

 Prior possession is not always essential or a condition sine

qua non.

FORCIBLE ENTRY UNLAWFUL DETAINER

1. Possession is unlawful from
the beginning - because the
property was acquired through
F.I.S.T.S.
2. No demand to vacate
necessary.
3. Prior possession must be
proved.
1. Possession is inceptively
lawful from the beginning, but
becomes illegal from the time
possession is unlawfully
withheld after the expiration
of the right thereto.
2. Demand is jurisdictional.
Ground: failure to pay rent
or lease.

4. 1 year prescriptive period 3. No need to prove prior

physical possession.

4. 1 year period:
- upon the expiration of lease
- upon demand to vacate

SURFACE RIGHTS

The owner of a 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 may deem proper,
without detriment to servitudes and subject to special laws and
ordinances. He cannot complain of the reasonable requirements
of aerial navigation. (Art.437,NCC)

REGALIAN DOCTRINE - reserves to the State all natural wealth

that may be found in the bowels of the earth even if the land
where the discovery is made be private. Said doctrine is intended
for the benefit of the State, not private persons.
(Republic Vs. CA)

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Limitations:
1. Horizontally - extends up to the boundaries
2. Vertically - extends below the surface and above it to the
extent required by the economic interest or
utility to the owner, in relation to the
exploitation that may be made of the property.
3. Airspace - the owner cannot complain of the reasonable
requirements of aerial navigation.

HIDDEN TREASURE

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. (Art.439,NCC)

General Rule: Art.438

Hidden treasure belongs to the owner of the land, building, 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
one-half thereof shall be allowed to 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.

HIDDEN TREASURE - REQUISITES:

1. The treasure must consist of money, jewelry, or other precious

objects;
2. It must be hidden and unknown
3. Its lawful ownership does not appear
4. The discovery must be by chance
5. The discoverer must be a stranger and not a trespasser.

HIDDEN TREASURE - EXCEPTIONS:

The finder is entitled to 1/2, provided:

1. Discovery was made on the property of another, or of the State
or any of its political subdivisions;
2. The finding was made by chance;
3. The finder is not a co-owner of the property where it is found;
4. The finder is not a trespasser;
5. The finder is not an agent of the landowner;
6. The finder is not married under the absolute community or
the conjugal partnership of gains system (otherwise his share
belongs to the community.

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 If a finder is a paid laborer and he finds the treasure in
a property by chance, he gets half. If he had been employed
precisely to look for the treasure, he will get nothing
insofar as the treasure is concerned.
 If the finder or owner is married, the share of the hidden
treasure which the law awards to the finder or the proprietor
belongs to the conjugal partnership.
 If the treasure is found under government property, half goes
to the finder, and half to the state.
 A treasure hunt is an express search for hidden treasure.
Should discovery be made, the actual finders will not
necessarily be entitled to half. Instead, they will be given
what was stipulated in the contract.
 If a precious object is deliberately hidden by the owner,
it cannot be considered as a hidden treasure even if
discovered by another as long as the true owner can prove
his ownership.
 If the ownership of the treasure is unknown, but the owner
is already dead, same will not be considered “hidden treasure”,
and must therefore go to the owner’s rightful heirs. If the
only legal heir left is the state, the treasure will appertain
to the State’s patrimonial property.

Notes on Ownership:

♥ Forest lands or forest reserves are not capable of private

appropriation, and possession thereof cannot ripen into
private ownership, unless such lands are classified and
considered disposable and alienable. Nonetheless, forest
lands can be appropriated by private ownership.
♥ A writ of replevin cannot be directed against the lawful
possessor.
♥ When a thing is in official custody of a judicial or executive
officer in pursuance of of his execution of a legal writ,
a replevin will not lie to recover it.
♥ One in possession of public land may file an action for
forcible entry.
♥ Upon receipt of the last demand to vacate, expiration or
termination of the right to hold possession occurs, and so
an unlawful detainer case is counted from the time of the
“unlawful deprivation” or “withholding of possession” for
filing.
♥ A squatter’s possession is by tolerance. This kind of
possession becomes unlawful from the time the owner makes
a demand on the squatter to vacate the premises.
♥ A petition for clarification of title over the registered
land may be regarded as an action for declaratory relief or
quieting of title.
♥ The right of ownership is not absolute. There are limitations
which are imposed for the benefit of humanity. First, the
welfare of the people is the supreme law of the land. Second,
use your property so as not to impair the rights of others.
♥ Res perit domino (the owner bears the loss)

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 III. RIGHT OF ACCESSION (ART. 440-475)

Art. 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 right of an owner of a thing to the products

of said thing as well as to whatever is inseparably
attached thereto as an accessory.

♥ GENERAL RULE: THE ACCESSION FOLLOWS THE PRINCIPAL

(ACCESSIO CREDIT PRINCIPALI)

CLASSIFICATION OF ACCESSION:

A. Accession Discreta (To the fruits)

1. Natural Fruits
2. Industrial Fruits
3. Civil Fruits
B. Accession Continua (Attachment or incorporation)
1. With reference to real property:
a. Accession industrial
1. Building
2. Planting
3. Sowing
b. Accession natural
1. Alluvium
2. Avulsion
3. Change of course of rivers
4. Formation of islands
2. With respect to personal property:
a. Adjunction or conjunction
1. Inclusion (engraftment)
2. Soldadura (attachment)
3. Tejido (weaving)
4. Pintura (painting)
5. Escritura (writing)
b. Mixture
1. Confusion - liquids
2. Commixtion - solids
c. Specification

Notes on Accession:
 Accession is not a mode of acquiring ownership because
accession presupposes a previously existing ownership by the
owner over the principal
 One who owns a thing should justly enjoy its fruits.
 The right to accession is automatic (ipso jure), requiring
no prior act on the part of the owner of the principal.

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RIGHT OF ACCESSION: WITH RESPECT TO WHAT IS PRODUCED BY THE PROPERTY

Art. 441 - To the owner belongs:

1. The natural fruits;
2. The industrial fruits;
3. The civil fruits;

 The rule of accession discreta is not absolute, it is subject

exceptions↓.

Instances when the LANDOWNER DOES NOT OWN THE FRUITS:

1. Possessor in good faith of the land (He owns the fruits already
received; Reference: Art. 544, par. 1)
2. Usufructuary (Reference: Art. 566)
3. Lessee gets the fruits of the land (Of course, the owner gets
the civil fruits in the form of rentals; Reference: Art. 1654)
4. In the contract of Antichresis, the antichretic creditor gets
the fruits, although of course, said fruits should be applied
first, to the interest if anything is owing, and then to the
principal amount of the loan. (Reference: Art. 2132)

Art. 442:

Natural fruits - are the spontaneous products of the soil, and

the young and other products of animals.

Industrial fruits - are those produced by lands of any kind

through 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.

 Principle of partus sequitur ventrem:

When the male and female animals, belong to different owners,
the owner of the female is considered the owner of the young,
unless there is a contrary custom or speculation.

Art. 443 - He who receives the fruits has the obligation to pay
the expenses made by a third person in their production,
gathering, and preservation.

 No one may enrich himself unjustly at another’s expense.

 Art. 443 does not apply when the planter is in good faith
because in this case, he is already entitled to the fruits
already received, hence, there is no necessity of reimbursing
him.
 Expenses referred to in Art. 443 must have been used for the
production, gathering, or preservation, and not for the
improvement of the property. They must have been necessary
and not luxurious or excessive.
 If the expenses exceed the value of the fruits, there must
still be a reimbursement for the expenses if the owner insists
on being entitled to the fruits - the law makes no exception
or distinction.

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Art. 444 - Only such as are manifested or born are considered
as natural or industrial fruits.

With respect to animals, it is sufficient that they are in the

womb of their mother, although unborn.

As to crops:
 Annual crops are deemed manifest (existing) the moment their
seedlings appear from the ground, although the grains have
not yet actually appeared.
 Perennial crops are deemed to exist only when they appear
on trees.

As to animals:
 The young of animals are already considered exisitng even
if still in the maternal womb.
* doubt may arise whether they are already in the womb or
not, Manresa suggests that they should be considered
existing at the commencement of the maximum ordinary
period of gestation.

Rules for Civil Fruits as distinguished from Natural and

Industrial fruits:

 Civil fruits accrue daily (Art. 544) and are therefore

considered in the category of personal property; natural and
industrial fruits, while still growing, are real property.
 Civil fruits can be pro-rated; natural and industrial fruits
ordinarily cannot. (Art. 544)

RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY:

Art. 445 - Whatever is built, planted or sown on the land of another

and the improvements or repairs made thereon, belong to the owner of
the land, subject to the provisions of the following articles.

Basic principles of Accession Continua:

1. To the owner of the land must belong also the accessions,
in accordance to the principle that “the accessory follows the
principal”;
2. That this incorporation of the accessory with the principal
saving the exceptions provided by law, is effected only when
two things are so united that they cannot be separated without
injuring or destroying the juridical nature of one of them;
3. He who is in good faith may be held responsible but should
not be penalized;
4. He who is in bad faith may be penalized;
5. No one should enrich himself unjustly at the expense of
another
6. Bad faith of one party neutralizes the bad faith of the other
so both should be considered in good faith.

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What is meant by good faith and bad faith in accession?
(From Jurado)
As applied to a builder, planter or sower:
 Good faith consists in ignorance of the ownership of another,
while bad faith consists in the knowledge of such ownership.
 There is good faith if he is not aware that there is a flaw
or defect in his title or mode of acquisition which
invalidates it.
 There is bad faith if he is aware of such flaw or defect.

As applied either to the owner of the land or to the owner of

the materials:
 Good faith consists in the ignorance of the acts of the builder,
planter or sower, or if he was aware of such acts, there was
opposition on his part.
 Bad faith consists in knowledge of such acts and without
opposition on his part.

Accession Industrial Outline:

Landowner Builder, Planter, Owner of the

Sower (BPS) Materials (OM)
Good Faith Good Faith Good Faith
- Acquire improvements - Right of retention for - Collect value of
and pay to B, P,S indemnity; necessary and useful materials primarily from
- Subsidiarily liable to expense B,P, S;
owner of materials: - Pay value of materials to - Subsidiarily from land
a. sell land to B or P except owner of materials owner if B, P, S insolvent
if the value of the land is - Remove only if without
Considerably more injury
b. rent to S (455, 447)
(448, 546, 455)

Good Faith Good Faith Bad Faith

- Acquire improvements
and pay indemnity to B,
P, S
- Sell to B, P except if the
value of land is
considerably more
- forced lease
- Without subsidiary
liability for cost of
material
- Right of retention for - Lose them without right to
necessary and useful indemnity (449)
expenses
- Keep building, planting
or sowing w/o indemnity to
owner of materials and
collect damages
(546, 449)

Good Faith Bad Faith Bad Faith

Option to:
- Acquire improvement
w/o paying indemnity and
Collect damages, or
- Demolition or
restoration, and collect
damages, or
- Sell to B, P or rent to S,
and collect damages
- Pay necessaryexpenses to
B, P, S
(449, 450,451)
Bad Faith
{Same as though all acted in
good faith (453)}
Bad Faith
- Acquire improvements
after paying indemnity and
damages to B, P, S
- Subsidiarily liable to
owner of materials
(454, 447, 455)
- Recover necessary
expenses for preservation
- Lose improvements w/o
right to indemnity from
LO (452) unless the LO sells
land
Bad Faith
{Same as though all acted in
good faith (453)}
Good Faith
- Remove improvements in
any event
- Be indemnified
for damages
- Recover value from B, P,
S (as if both acted in
good faith)
- If B, P, S acquires
improvements, remove
materials if w/o injury
(447)
- No action
Bad Faith
{Same as though all acted in
good faith (453)}
Good Faith
- Remove materials if w/o
injury
- Collect value of
materials, primarily from
B, P, S; subsidiarily
from LO (447, 455)

15
Bad Faith
- Acquire improvements
after indemnity to B, P, S;
- subsidiarily liable to
owner of materials:
a. Sell to B, P
except: if the value is
Considerably more
b. Rent to S
(453, 448, 546, 548, 455)
Good Faith
Option to:
- Acquire w/o paying
indemnity and collect
damages
- Sell to B, P and rent to
S and collect damages
- Demolish or restore and
collect damages
- Pay necessary expenses to
B, P, S
- Subsidiarily liable to
owner of materials
(449, 450, 451)
Bad Faith
- Acquire improvements &
pay indemnity & damages to
B,P,S (454,447)
Bad Faith
- Right of retention for
Necessary expenses
- Pay value of materials to
owner of materials and
pay him damages (546,447)
Bad Faith
- Recover necessary
expenses (452,443)
- Lose improvements
w/o right of retention from
LO (452) unless LO sells the
land
Good Faith
- Indemnity for damages
- Remove improvements in
any event(454,447)
Good Faith
- Collect value of
materials primarily form
B, P, S; subsidiarily from
LO
- Collect damages
- If B, P, S acquires
improvements, remove
materials in any
event (447, 455)
Good Faith
- Collect value of
materials and damages from
B, P, S and subsidiarily
from LO
- Remove materials in any
event if B, P, S acquires
improvements
Bad Faith
- No indemnity;
- lose materials (449)

 In the cases regulated in the preceding articles, good faith

does not necessarily exclude negligence, which gives right
to damages under Article 2176. (Art.456)

Forms of Accession Natural:

a. Alluvium - The accretion which the lands adjoining the banks

of rivers, creeks, torrents, or lakes, gradually
received from the effects of the current of the
waters.
Rule with regard to Alluvium:
 To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects
of the current of the waters (Art. 457, NCC)
 The owners of estates adjoining ponds or lagoons do not
acquire the land left dry by the natural decrease of waters,
or lose that inundated by them in extraordinary floods.
(Art. 458, NCC)

Requisites of Alluvium/Accretion:
 The deposit or accumulation of soil or sediment must be
gradual and imperceptible.
 The accretion must result from the effects or action of the
current of the water.
 That the land where accretion takes place is adjacent to the
bank of the river.
 The river must continue to exist.
 The increase must be comparatively little.

Riparian Owner - owner of the estate fronting the river bank.

16
Alluvium is granted to the Riparian Owner:
1. To compensate him for the loss he may have suffered due to
erosion or the destructive force of water and danger from
floods;
2. To compensate him because the property is subject to
encumberances and legal easements;
3. The interest of agriculture require that the soil be given
to the person who is in the best position to cultivate the
same;
4. Since identification of previous owner of the soil is
impossible, it may just as well be logically given to him
who can best utilize the property.

♥ Article 458 applies when the estate adjoins a pond or lagoon,

but not when the estate adjoins a lake, river, creek, or other
streams.

b. Avulsion - the accretion which takes place whenever the

current of a river, creek, torrent, or lake segregates from an
estate on its bank a known portion of land and transfers it to
another estate.

Rule with regard to Avulsion:

 Art. 459: Whenever 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 estate, the owner of the land
to which the segregated portion belonged retains the
ownership of it, provided that he removes the same within
two years.
 Art. 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 six months.
If such owners claim them, they shall pay the expenses
incurred in gathering them or putting them in a safe place.

ALLUVIUM AVULSION
1. Accretion is gradual 1. Accretion is sudden and
2. Accretion cannot be abrupt.
identified. 2. Accretion can be identified.
3. There is merely an 3. There is first a detachment
attachment. followed by attachment.
4. Accretion belongs to the 4. The ownership is retained by
owner of the land to which the the owner of the land from which
attachment is made ipso jure. it is detached.

♥ If instead of being uprooted, the trees still remain attached

to the land that has been carried away, Art. 459 must govern.

Rule with regard to changes in the course of rivers:

Art. 461: River beds which are abandoned through 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 value shall not exceed the value of the area
occupied by the new bed.

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Requisites for Art. 461 (Change of River Bed) to apply:
1. The change must be sudden that the old river may be identified.
2. The changing of the course must be more or less permanent,
an not temporary over flooding of another’s land.
3. The change of the river must be a natural one.
4. There must be a definite abandonment by the government. If
the government takes steps to bring the river to its old bed,
461 will not apply.
5. The river must continue to exist.

Art. 462: Whenever a river, changing its course by natural causes,

opens a new bed through a private estate, this bed shall become
of public dominion.

Rule if new river bed is on private estate:

Even if the new bed is on private property, the bed becomes
property of public dominion, just as the old bed had been of
public dominion before the abandonment.

Art. 463: When the current of a river divides itself into branches,
leaving a piece of land or part thereof isolated, the owner of
the land retains his ownership. He also retains it if a portion
of land is separated from the estate by the current.

 If the river divides itself into branches that affects a

property, the owner of the said property remains the owner
of the portion which may be isolated from the rest, or may
be separated from the rest. (Isolation and Separation)

Art. 464: Islands which may be formed on the seas within the
jurisdiction of the Philippines, on lakes, and on navigable or
floatable rivers, belong to the State.

♥ Islands are formed by the successive accumulation of alluvial

deposits. (those referred to in Arts. 464 and 465)

Art. 465: Islands which through successive accumulation of

alluvial deposits are formed in non-navigable and non-floatable
rivers, belong to the owners of the margins or banks nearest
to each of them, or to owners of both margins if the island is
in the middle of the river, in which case it shall be divided
longitudinally in halves, if a single island thus formed be more
distant from one margin than fro the other, the owner of the
nearer margin shall be the sole owner thereof.

Rules on ownership of islands:

1. If formed on the sea:
A. Within the territorial waters or maritime zone or
jurisdiction of the Philippines - STATE
B. Outside of our territorial jurisdiction - FIRST COUNTRY
TO EFFECTIVELY OCCUPY the SAME
2. If formed on lakes, or navigable or floatable rivers - STATE
3. If formed one non-navigable or non-floatable rivers:
A. If NEARER in margin to one bank, owner of nearer margin
is the SOLE owner.
B. If EQUIDISTANT, the island shall be divided longitudinally
in halves, each bank getting half.

18
Please note . . .
 Navigable or floatable river - if useful for floatage and
commerce, whether the tides affect the water or not should
benefit the trade and commerce.
 Non-navigable (opposite of Navigable/Floatable)

RIGHT OF ACCESSION WITH RESPECT TO MOVABLE PROPERTY:

3 Types of Accession:
1. Adjunction
2. Mixture
3. Specification

Art. 466: Whenever two movable things belonging to different

owners are, without bad faith, united in such a way that they
form a single object, the owner of the principal thing acquires
the accessory, indemnifying the former owner thereof for its
value.

Adjunction - the process by virtue of which two movable things

belonging to different owners are united in such a way that they
form a single object. A.k.a. Conjunction.

Kinds of Adjunction:
1. Inclusio or engraftment
2. Soldadura or attachment
3. Tejido or weaving
4. Pintura or painting
5. Escritura or writing

 Q: If two movable things belonging to different owners are

united in such a way that they form a single object, to whom
shall the object belong?

1. When both owners have acted in good faith:

♥ If the two things which are united cannot be separated from
each other without injury,the owner of the principal thing
acquires the accessory, indemnifying the owner of such
accessory for its value. (Art. 466)
♥ If the two (2) things can be separated without injury, their
respective owners may demand their separation.(Art.469
par.1)
♥ Nevertheless, in case the thing united for use emellishment
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 is incorporated
may suffer some injury. (Art. 469 par. 2)

2. When the owner of the accessory had acted in bad faith:

♥ 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 damages he may have suffered.
(Art. 470)

19
3. When the owner of the principal had acted in bad faith:
♥ If the one who has acted in bad faith is the owner of the
principal thing, the owner of the accessory thing shall have
the right to choose between the former paying him its value
or that the thing belonging to him be separated, even through
for this purpose it be necessary to destroy the principal
thing; and in both cases, furthermore, there shall be
indemnity for damages. (Art. 470)

4. When both owners had acted in bad faith:

♥ 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. (Art. 470)

4 Tests to determine the ‘principal’ in Adjunction:

1. That to which the other has been united as an ornament or
for use or perfection;
2. The thing of greater value;
3. If they are of equal value, that of the greater volume
4. If not one of these tests can be applied, then, the question
will be resolved by taking into consideration all pertinent
provisions applicable as well as their respective merits,
utility and volume. (Art. 467, 468)

Art. 467: The principal thing, as between two things

incorporated, is deemed to be that to which the other has been
united as an ornament, or for its use or perfection.

Art. 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 so
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.

Art. 469: Whenever the things united can be separated without

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.

Art. 471: Whenever the owner of the material employed without

his consent has a right to an indemnity, he may demand that this
consists 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 is paid either by the delivery of a thing equal
in kind and in value or payment as appraised by experts.
 Sentimental value must be considered.
 Applicable only if owner did not give consent.

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Q: If two or more things belonging to different owners are mixed,
to whom shall the mixture belong?

 If by the will of their owners two things of the same or

different kinds are mixed, or if the mixture occurs by chance,
and in the latter case the things are not separable without
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. (Art. 472)
 If by the will of only one owner, but in good faith, two things
of the same or different lands are mixed or confused, the
rights of the owners shall be determined by the provisions
of the preceding article. (Art. 473, par. 1)
 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 fro the
damages caused to the owner of the other thing with which
his own was mixed. (Art. 473, par. 2)

2 kinds of mixture:
1. Commixtion - solids
2. Confusion - liquids

Rules for Mixture:

a. If the mixture is caused by one owner in good faith, or by
the will of both owners, or by chance, or by a common agent,
CO-OWNERSHIP results.
b. If the mixture is made by the owner in bad faith, he loses
his material and is liable for damages.
c. If both are in bad faith, it will be considered in good faith.

 When the things mixed or confused are of exactly the same

kind, quantity and quality, all that is needed would be to
divide them into two equal parts.
 In case mixture was caused by the negligence of one of the
parties, the party negligent is liable and should indemnify
for damages.

Q: If a certain person employs the materials of another in order

to make a thing of a different kind (specification), to whom
shall the thing belong?

 One who is in good faith employs the material of another in

whole or in part in order to make a thing of 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 of 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 the 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 the value of the
material and the damages he may have suffered.

21
 However, the owner of the material cannot appropriate the
work in case the value of the latter, for artistic or
scientific reasons, is considerably more than that of the
material. (Art. 474)

 Labor is considered the principal

Rules in Specification:
 If the WORKER is in good faith, he appropriates the new thing
but he must indemnify for the materials; except if the
materials is much more precious than the new thing or is more
valuable, the owner of the material has an option to get the
new thing but pays for the work, or to demand indemnity for
the material.
 If the WORKER is in bad faith, the owner of the material has
an option. He can appropriate the work without paying for
the labor or he can demand indemnity for the material plus
damages; except when the value of the resultant work is more
valuable for artistic or scientific reasons.

Specification - is the giving of a new form to another’s material

through the application of labor.

ADJUNCTION MIXTURE SPECIFICATION

1. Involves at least 1. Involves at least 1. May involve only
two things two things one thing (may be
more) but form is
2. As a rule, 2. As a rule, changed
accessory follows co-ownership
the principal results 2. As a rule,
accessory follows
3. The things joined 3. The things mixed the principal
retain their nature or confused may
either retain or 3. The new object
lose their retains or preserves
respective natures the nature of the
original object

Art. 475: In the preceding articles, sentimental value shall

be duly appreciated.

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 IV. QUIETING OF TITLE (ART. 476-481)

Art. 476 - Whenever there is a cloud on the title to real property

or any interest therein, by reason of any instrument, record,
claim, encumberance or proceeding which is apparently valid or
effective but is in truth and in fact invalid, ineffective,
voidable or unenforceable, and may be prejudicial to 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.

Cloud - “doubt”

Cloud on title - a semblance of title, either legal or equitable,

or a claim or a right in real property , appearing in some legal
form but which is in fact invalid or which would be inequitable
to enforce.

Action to quiet the title

- an action to remove cloud or to quiet title is a remedy or
proceeding in equity, the purpose of which is the declaration
of the invalidity of an interest in property adverse to that
of the plaintiff.

General Rule: Only real property can be the object of quieting

of title.

Existence of the cloud:

- A cloud on the title exists because of an instrument or record
or claim or encumberance or proceeding,which is apparently valid
or effective, but is, in truth and in fact invalid, ineffective,
voidable or unenforceable, or extinguished or barred by
extinctive prescription, and may be prejudicial to the title

Kinds of Action:
1. Remedial - action to remove the cloud or quiet the title.
(Art. 476, par.1)
2. Preventive - action to prevent a future cloud or doubt -
“actio quia timet”.

Art. 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.

If plaintiff is in possession If plaintiff is out of

possession
A. Period does not prescribe A. Period prescribes

B. Only right is to prevent or B. Aside from being given the

remove cloud right to remove or prevent
cloud, he may also bring the
ordinary actions of ejectment,
publiciana or reivindicatoria,
within the proper prescriptive
periods.

23
Q: When may an action be brought to remove the cloud or to quiet
the title to real property or any interest therein?

Only if the following requisites are present:

1. The plaintiff must have a legal or equitable title to, or
interest in the real property which is the subject-matter of
the action. (Art. 477)
2. There must be a cloud on such title. (Art. 476)
3. Such cloud must be due to some instrument, record, claim,
encumberance or proceeding, which is apparently valid or
effective but which is in fact invalid, ineffective, voidable,
or unenforceable, and is prejudicial to the plaintiff’s title.
(Art.476)
4. 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 his benefit. (Art. 479)

Art. 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.

Principles regarding defenses of the defendant:

1. That the plaintiff does not have legal or equitable title.
2. Defendant has acquired ownership by adverse possession.
3. Case had already been previously decided between the parties
on the same issue.
4. Defenant beame the owner after the action has been filed,
but before he filed his answer.
5. That the action has prescribed.

Art. 481 - the procedure for the quieting of title or the removal
of the cloud therefrom shall be governed by such rules of court
as the Supreme Court shall promulgate.

When the action to quiet the title will not prosper:

1. When it is merely an action to settle a dispute concerning
boundaries.
2. If the case merely involve the proper interpretation and
meaning of a contract or document.
3. If the plaintiff has no title, either legal or equitable.
4. If the action has prescribed and the plaintiff is not in
possession of the property.
5. If the contract, instrument, etc. is void upon its face.
6. If it is a mere claim or assertion (written or oral) unless
such claim, has been made in a court action.

24
 V. CO-OWNERSHIP (ART. 484-501)
Art. 484 - There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons.

In default of contracts, or of 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.
- also known as the right of common dominion which
two or more persons have in a spiritual part of
a thing which is not materially or physically
divided.

Requisites of Co-ownership:
1. Plurality of subjects
2. Unity of object (material indivision)
3. Recognition of the ideal or intellectual shares of the
co-owners which determine their rights and obligations.

CO-OWNERSHIP PARTNERSHIP
As to creation: - created by law, - always created by
contract, succession, contract.
fortuitous event, or
occupancy.
As to purpose: - the common enjoyment of - to obtain profits.
a thing or the right
owned in common
As to personality: - has no juridical - has juridical
personality which is personality.
separate and distinct
As to duration: - agreement for it to - no limitation upon the
exist for 10 years is duration
valid
As to power of members: - a co-owner has no power - a partner has the power
to represent the to represent the
co-ownership unless partnership unless
there is an agreement there is a stipulation to
the contrary
As to effect of - if a co-owner transfers - if a partner transfers
disposition of shares: his share to a third his share to a third
person, the latter person, the latter does
automatically becomes a not become a partner,
co-owner unless agreed upon by all
the partners
As to division of - the divisions of the - in a partnership the
profits: benefits and charges are division of profits and
fixed by law losses may be subject to
the agreement of the
partners
As to effect of death: - the death of a co-owner - the death of a partner
has no effect upon the shall result in the
existence of the dissolution of the
co-ownership partnership

*Chart credits to Jurado :)

25
Kinds of Co-ownership:
a. From the viewpoint of the subject matter:
1. Co-ownership of an undivided thing
2. Co-ownership of an undivided right

b. From the viewpoint of the source:

1. Contractual co-ownership
2. Non-contractual co-ownership

c. From the viewpoint of the rights of the co-owners:

1. Tenancy in common
2. Joint tenancy

Characteristics of Co-ownership:
1. There must be ore than one subject or owner.
2. There is one physical whole divided into ideal shares.
3. Each idea share is definite in amount, but is not physically
segregated from the rest.
4. Regarding the physical whole, each co-owner must respect each
other in the common use, enjoyment or preservation of the
physical whole.
5. Regarding the idel share, each co-owner holds almost absolute
control over the same.
6. It is not a juridical person.
7. A co-owner is in a sense a co-trustee for the other co-owners.
Thus, he may not ordinarily acquire exclusive ownership of the
property held in common through prescription.

CO-OWNERSHIP CONJUGAL PARTNERSHIP

a. May arise by an ordinary a. Arises only because of the
contract marriage contract

b. Sex of the co-owners is b. One must be a male, the other

immaterial a female

c. Co-owners may be two or more c. Conjugal owners are always

only two
d. Profits are proportional to
respective interests d. Profits are generally 50-50
unless a contrary stipulation
e. Death of one does not is in a marriage settlement
dissolve the co-ownership
e. Death of either husband or
f. Generally, all the co-owners wife dissolves the conjugal
administer partnership

g. Co-ownership is discouraged f. Generally, the husband is

by law the administrator

g. Encouraged by law to provide

for better family solidarity

26
Q: How do you determine the share of the co-owners in the benefits
and charges arising from the co-ownership?

According to the NCC, the share of the co-owners in the benefits

and charges arising from the co-ownership shall be proportional
to their respective interests and any stipulation in a contract
to the contrary shall be void. (Art.485,par.1)

Consequently, in order to determine the share of the co-owners

in the benefits and charges, we must first determine their
respective interests in the co-ownership. Under the law, such
interests are presumed equal, unless the contrary is provided.
(Art.485,par.2)

Q: What are the limitations upon the right of a co-owner to use

the thing owned in common?

Art. 486 - The thing should be used only:

1. In accordance with the purpose for which it is intended;
2. In such a way as not to injure the interest of the
co-ownership;
3. In such a way as not to prevent the other co-owners from using
it according to their rights.

Art. 487 - Any one of the co-owners may bring an action in

ejectment.

The term “ejectment” covers the following actions:

a. Forcible entry
b. Unlawful detainer
c. Accion publiciana
d. Accion reivindicatoria
e. Quieting of title
f. Replevin

General rule: the main issue in an ejectment suit is possession

de facto, not possession de jure.

Art. 488 - Each of the co-owner shall have a right to compel

the other co-owner to contribute to 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.

Requirements of Renouncement:
1. If the renouncing is in favor of the creditor, said creditor
must give his consent.
2. If the renouncing is in favor of the other co-owners, a
novation (substitution of debtor) would result which would
necessitate the consent of the other co-owner and the creditor.

 Renunciation cannot be implied be implied by mere refusal

to pay the proportionate share.

27
Art. 489 - Repairs for preservation may be made at the wil 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.

Number of co-owners who must consent:

1. Repairs, ejectment action - ONE (Art.489)
2. Alterations or acts of ownership - ALL (Art.491)
3. All others, like useful improvements, luxurious
embellishments, administration and better enjoyment -
FINANCIAL MAJORITY (Art.489&492)

 A co-owner can go ahead with the necessary repairs even

against the opposition of all the rest because the negligence
of others should not prejudice him.
 Though it is practicable to do so and no notification was
made, the other co-owners will still be liable since the
repairs were essential.
 “Practicable”- means that something can be done.

Q: If the different stories of a house belong to different owners,

and 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, what RULES shall be observed?

Art. 490 - Whenever the different stories of a house belong to

different owners, if the title 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 other things used in
common, shall be preserved at the expense of all owners in
proportion to the value of the story belonging to each;
2. Each 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
expenses 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 of 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.

 Perpendicular Co-ownership - different stories belong to

different persons.

Rules to remember:
a. Proportionate contribution is required for the preservation
of: the main walls; the party walls; the roof; the other things
used in common.
b. Each floor owner must bear the expense of his floor.
c. Stairs are to be maintained from story to story, by the users.

 Ground floor is distinguished from the first story.

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CONDOMINIUM ACT Q&A FFROM JURADO.

Q: What is meant by condominium?

According to the Condominium Act (R.A. No. 4726), a

condominium is an interest in real property consisting of a
separate interest in a unit in a residential, industrial or
commercial building and an undivided interest in common,
directly or indirectly, in the land on which it is located and
in other common areas of the building. A condominium may include,
in addition, a separate interest in other portions of such real
property. (Sec. 1)

Q: Who has the title to the condominium project?

We must qualify our answer. When we speak of the condominium

project, we refer to the entire parcel of property divided or
to be divided in condominiums, including all structures
thereon.(Sec.3) Thus, as far as the unit of the project which
is being used by a condominium owner is concerned, such owner
has title thereto, but as far as the common areas, including
the land, are concerned, all of the condominium owners have an
undivided interest or title thereto. However, title to such
common areas, including the land, may be held by a corporation
(hereinafter known as the condominium corporation) in which the
holder of separate interests shall automatically be members or
shareholders, to the exclusion of others, in proportion to the
appurtenant interest of their respective units in the common
areas. (Sec.1)

Q: If you are the owner of a unit in a condominium project, such

as an apartment, office or store, can you transfer your interest
in the project to a third person?

Yes, however, the limitations prescribed by Sec. 5 of the

Condominium Act must be observed. According to this section “Any
transfer or conveyance of a unit or an apartment, office or store
or other space therein, shall include the transfer or conveyance
of the undivided interest in the common areas, or in a proper
case, the membership or shareholding in the condominium
corporation: Provided, however, That where the common areas in
the condominium project are held by the owners of separate units
as co-owners thereof, no condominium unit therein shall be
conveyed or transferred to person other then Filipino citizens
or corporations at least 60% of the capital stock which belong
to Filipino citizens, except in cases of hereditary succession.
Where the common areas in a condominium project are held by a
corporation, no transfer of the appurtenant membership or
stockholding in the corporation ill cause the alien interest
in such corporation to exceed the limits imposed by existing
laws”.

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Q: Under the Condominium Law, when can the owner of a unit demand
for the partition by sale of the condominium project?

According to Sec. 8 of the Condominium Law, when several persons

own condominiums in a condominium project, an action may be
brought by one or more such persons for partition by sale of
the entire project, as if the owners of all the condominiums
in such project were co-owners of the entire project in the same
proportion as their interests in the common areas: Provided,
however, that a partition shall be made only upon showing:

1. That three (3) years after damage or destruction to the

project which renders a material part thereof unfit for its use
prior thereto, the project has not been rebuilt or repaired
substantially to its state prior to its damage or destruction;
or

2. That damage or destruction to the project has rendered

one-half or more of the units therein untenantable and that
condominium owners holding an aggregate more than 30% interest
in the common areas are opposed to repair or restoration of the
project; or

3. That the project has been in existence in excess of 50 years,

that it is obsolete and uneconomical, and that condominium
owners holding in aggregate more than 50% interest in the common
areas are opposed to repair, restoration or modeling or
modernizing of the project; or

4. That the project or material part thereof has been condemned

or expropriated and that the project is no longer viable, or
that the condominium owners holding in aggregate more than 70%
interest in the common areas are opposed to continuation of of
the condominium regime after expropriation or condemnation of
a material proportion thereof; or

5. That the conditions for such partition by sale set forth in

the declaration of restrictions duly registered in accordance
with the terms of this act have been met.

------------------END OF CONDOMINIUM ACT Q&A------------------

Q: Distinguish between the right of a co-owner to make repairs
for the preservation of the property owned in common, to perform
acts of administration, and to perform acts of ownership or
alteration.

1. With regard to acts of preservation: Repairs for preservation

may be made at the will of one of the co-owners, but he must,
if practicable, first notify the other co-owners of the
necessity for such repairs. (Art. 489)

2. With regard to acts of administration: Acts of administration

can be performed only with the concurrence of the majority of
the co-owners. (Art. 492)

3. With regard to acts of alteration: Acts of alteration can

be performed only with the concurrence of the other co-owners.
(Art. 491)

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Acts of Administration - are those which refer to the enjoyment,
exploitation and alteration of the thing which do not affect
its substance or form. This act is transitory in character and
does not affect the substance or form of the thing. In relation
to a right of a co-owner, this act requires the consent or
resolution of the majority of the co-owners.

Acts of Alteration - are those by virtue of which a co-owner ,

in opposition to the expressed or tacit agreement of all
co-owners, and in violation of their will, changes the thing
from the state in which the others believe it should remain,
or withdraws it from the use to which they believe it is intended.
This act is permanent and relates to the substance or essence
of the thing itself. In relation to a right of a co-owner, this
act requires the consent of all.

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.

Alteration - a change which is more or less permanent; which

changes the use of the thing; and which prejudices the condition
of the thing or its enjoyment by the others.

Such as:
1. Sale, donation, mortgage of the whole or part (with definite
boundaries) of the property;
2. A voluntary easement;
3. Lease of real property if the lease is recorded or the lease
is for more than one year.
4. The construction of a house and lot owned in common;
5. Any other act of strict dominion or ownership;
6. Impliedly, contracts of long duration

 A unanimous consent for alterations required by the law my

be given impliedly but only for the purpose of making the
alteration legal.
 Replacement cannot be considered as an alteration
 An alteration os illegal when made without the express or
implied consent of the other co-owners.

Effects of an Illegal Alteration:

1. The co-owner responsible may lose what he has spent;

2. Demolition can be compelled;
3. He would be liable for the losses and damages;
4. BUT whenever benefits the co-ownership derives will belong
to it
5. In case a house is constructed on common land, all the
co-owners will be entitled to a proportionate share of the rent.

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Q: R, S, and T are co-owners of a 10-hectare agricultural land
in Quezon City. R is the administrator. S and T are in Spain.
May R convert the land to a memorial park without the knowledge
and consent of S and T? Explain.

R cannot convert the land into a memorial park without the

knowledge and consent of S and T.

Undoubtedly, to convert and agricultural land into a memorial

park constitutes an act of alteration or ownership which,
according to Art. 491 of the NCC, requires the concurrence of
all the co-owners, because such act involves a change of the
use for which the property is intended. Acts of alteration are
those acts by virtue of which a co-owner, in opposition to the
expressed or tacit agreement of all the co-owners, and in
violation of their will, changes the thing from the state in
which the others believe it should remain, or withdraws it from
the use to which they believe it is intended. Thus, even assuming
that the transformation of the land into a memorial park will
benefit all the co-owners, the still requires the concurrence
of all. (Art.491,NCC)

Art. 492 - For the administration and better enjoyment 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 be 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 preceding
provisions shall apply only to the part owned in common.

Acts of Administration or Management:

Those . . .
1. That do not involve an alteration;
2. That may be renewed from time to time;
3. That have transitory effects;
4. That do not give rise to a real over the thing owned in common;
5. Which even if called an alteration, do not affect the
substance or nature of the thing;
6. For the common benefit of all the co-owners and not for only
one or some of them.

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Q: How do you determine the majority of the co-owners? What is
the effect if a co-owner desires to make an improvement on the
property, but he cannot secure the consent of the majority?

To constitute a majority, the resolution must be approved by

the co-owners who represent the controlling interest in the
object of the community property (Art.492). Should there be 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 (Art.492)

Q: Who has the right of administration of the property owed in

common?

The management of the property owned in common lies, in the first

place, in the co-owners themselves. In this management, the
majority of interest control and their decisions are binding
upon the minority. However, the administration may be delegated
by the co-owners to one or more persons, whether co-owners or
not. In such case, the powers and duties of such administrators
shall be governed by the rules on agency. Should there be 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, may order
the appointment of the administrator.

Art. 493 - Each co-owner shall the full ownership of his part
and 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.

Rules Regarding the Ideal Share:

1. Each co-owner has full ownership of his part, and of his share
of the fruits and benefits.
2. And therefore, he may alienate, assign, or mortgage his (ideal)
share (not one wit boundaries).

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Art. 494 - No 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 a

certain period of time, not exceeding ten years, shall be valid.
This term may be extended by a new agreement.

A donor or testator may prohibit partition for a period which

shall not exceed 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.

When a Co-owner May Not Successfully Demand Partition:

1. If by agreement (for a period not exceeding 10 years),
partition is prohibited.
2. When partition is prohibited by a donor or testator
3. When partition is prohibited by law
4. When a physical partition would render the property
unserviceable, but in this case, the property may be allotted
to one of the co-owners, who shall indemnify the others or
it will be sold, and the proceeds distributed.
5. When the legal nature of the common property does not allow
partition.

Prohibition to Partition Because of an Agreement:

1. The period must not extend to more than 10 years (Art.494)
2. If it exceeds 10 years, the stipulation is valid only insofar
as the first 10 years are concerned.
3. There can be an extension but only after the original period
has expired.
4. After the first extension, as long as for each extension,
the period of 10 years is not exceeded.

Q: When is the partition of community property at the instance

of a co-ownership not allowed?

The partition of the community property is not allowed in the

following cases:

1. When the co-owners have agreed to keep the thing undivided

for a certain period of time, not exceeding ten years
(Art.494,par.2)
2. When it is prohibited by the donor or testator for a period
which shall not exceed 20 years, if the thing was acquired either
by donation or succession (Art.494,par.3)
3. When it is prohibited by law, such as in the case of party
walls and the family home (Art.494,par.4)
4. When to do so would render the thing unserviceable for the
use for which it is intended, although the co-ownership may still
be terminated in accordance with Art. 498 of the NCC (Art.495)

34
Art. 495 - Notwithstanding the provisions of the preceding
article, the co-owners cannot demand 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.

Art. 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.

Classification of Various Kinds of Partition:

From the viewpoint of cause: 1. Extrajudicial

2. Judicial
From the viewpoint of permanence: 1. Provisional or temporary

2. Permanent
From the viewpoint of subject 1. Partition of real property
matter:
2. Partition of personal property
From the viewpoint of forms and 1. Partition in a judicial decree
solemnities:
2. Partition duly registered in
the Registry of Property

3. Partition in a public
instrument

4. Partition in a private
instrument

5. Oral partition

 For partition to be valid:

1. The decedent left no will
2. The decedent left no debts, or if there were debts left -
all had been paid;
3. The heirs and liquidators are all of age, or if they are minors,
the latter are represented by their judicial guardian or legal
representatives;
4. The partition was made by means of a public instrument or
affidavit duly fulfilled with the Register of Deeds.

Art. 497 - The creditors or assignees of the co-owners may take

part in the division of the thing owned in common and object
to its being effected without their concurrence. But they cannot
impugn any partition already executed , unless there has been
fraud, or in case it was made notwithstanding a formal opposition
presented to prevent it, without prejudice to the right of the
debtor or assignor to maintain its validity.

Art. 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.

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Art. 499 - The partition of a thing owned in common shall not
prejudice third persons, who shall retain the rights of
mortgage , servitude, or any other real rights belonging to them
before the division was made. Personal rights pertaining to
third persons against the co-ownership shall also remain in
force, notwithstanding the partition.

 Both real and personal rights are protected.

 All those who did not in any way participate or intervene
in the partition are considered “third persons”

Art. 500 - Upon partition, there shall be a mutual accounting

for benefits received and reimbursements for expenses made.
Likewise, each co-owner shall pay for damages caused by reason
of his negligence or fraud.

Effects of Partition:
1. Mutual accounting benefits received (A.500)
2. Mutual reimbursement for expenses (A.500)
3. Indemnity for damages in case of negligence or fraud. (A.500)
4. Reciprocal warranty for defects of title and quality (A.501)
5. Each former co-owner is deemed to have had exclusive
possession of the part allotted to him for the entire period
during which the co-possession lasted. (A.543)
6. Partition confers upon each, the exclusive title over his
respective share. (A.1091)

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

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

Q: How may co-ownership be terminated or extinguished?

Co-ownership may be terminated by:

1. The merger or consolidation in one of the co-owners of all
the shares of the other co-owners;
2. The destruction or loss of the thing or right owned in common;
3. Prescription in favor of a third person or a co-owner;
4. Partition of the property owned in common.

36