PROPERTY

NOTES AND CASES

Prepared by:

ATTY. WALDEMAR R. GRAVADOR

USC-College of Law
• Property, Right to Property, and Ownership:
•
• 1. Property is an economic concept [ mass of things
or objects useful to human activity] and necessary
to life.
•
• 2. Right to Property is the juridical tie by virtue of
which a person has the exclusive power to receive
or obtain all the benefits from a thing, except those
prohibited or restricted by law or by the rights of
others.
•
• 2. Distinction between right to property [ vinculum
between a man and the thing] and ownership [
mass of rights over the thing] is more historical than
actual.
• Concept of things and property:
•
• 1. Things are all objects that exist, and can be of some
use to man. This is more generic and extensive.

Property are all those that are already appropriated or

are in the possession of man.

• 2. To be juridically considered as a thing or property,

an object must have the following requisites: 1) Utility [
capacity to satisfy human wants] 2) Individuality [ or,
substance or a separate and autonomous existence]
and 3) Susceptibility of being appropriated [ equivalent
to occupation, which is the willfull apprehension of a
corporeal object which has no owner, with intent to
acquire its ownership].
•
 Common Things:

Things which, as a whole mass, are not

susceptible of appropriation e.g. sun,
stars, the core of the earth, the sea, and
others called common things, are not
things or property in the juridical concept.
RIGHTS AS PROPERTY:

Things, include not only material objects, but

also rights [ real rights- power belonging to a
person over a specific thing, without a passive
subject individually determined against whom such
right may be personally exercised. It gives to a
person direct and immediate juridical power over a
thing, which is susceptible of being exercised, not
only against a determinate person, but against the
whole world] [ personal rights- the power
belonging to a person to demand of another, as a
definite passive subject, the fulfillment of a
prestation to give, to do, or not to do. Properly
called right of obligation, or simply obligation]
although these are relations and not objects.
 DIFFERENCES IN REGIME BETWEEN
MOVABLE AND IMMOVABLES:

• a. Solemnity is greater in acts relative to

immovables, e.g. donations
• b. Adverse Possession is longer for
immovables.
• c. Publicity and Recording are more important
for immovables re: double sale, mortgage
of properties.
• d. Capacity to alienate, greater capacity is
usually required for immovables.
• e. Venue is usually determined by the location
of the immovable.
IMMOVABLES AND MOVABLES:

 a. Par. 1. [ (1) Land, buildings, roads and

constructions of all kinds adhered to the
soil]

1. Separate treatment by the parties of

building from the land on which it stands
does not change the immovable character
of the building.
 1. While the building of strong materials in which the
rice-cleaning machinery was installed by the
"Compañia Agricola Filipina" was real property, and
the mere fact that the parties seem to have dealt
with it separate and apart from the land on
which it stood in no wise changed its character
as real property. It follows that neither the original
registry in the chattel mortgage registry of the
instrument purporting to be a chattel mortgage of
the building and the machinery installed therein, nor
the annotation in that registry of the sale of the
mortgaged property, had any effect whatever so far
as the building was concerned. ( LEUNG YEE VS.
STRONG MACHINERY 37 PHIL. 644)
•
2. Buildings on rented land- there are
authorities that buildings or constructions
placed on land by lessee do not become
immovable, where agreement gives the
lessee the right to remove the building and
improvements.

3. Building or house sold to be demolished

immediately, French court held the sale to be
involving movable property.
ANTONIO PUNZALAN et.al. vs.
REMEDIOS LACSAMANA et.al. G.R. No.
L-55729 MARCH 28, 1993
FACTS:
Petitioner is owner of land situated in
Tarlac which he mortgaged to PNB in
1963. This property was foreclosed. While
the land was still in possession of the
petitioner, he was allowed by PNB to
construct a warehouse. In 1978, deed of
sale was executed between PNB and
herein respondent Lacsamana.
Petitioner filed a suit impugning the validity
of the sale of the building in the CFI of
Rizal. Respondent PNB filed a motion to
dismiss on the ground of improper venue
because the suit involves a real property.

HELD:
The warehouse claimed to be owned by
petitioner is an immovable or real property
as provided in article 415(1) of the Civil
Code. Buildings are always immovable
under the
 Code. A building treated separately from
the land on which it stood is immovable
property and the mere fact that the parties
to a contract seem to have dealt with it
separate and apart from the land on which
it stood in no wise changed its character
as immovable property
4. Par. 2 [(2) Trees, plants, and growing
fruits, while they are attached to the land
or form an integral part of an immovable ]
on ungathered fruits. Under the Chattel
Mortgage Law, ungathered fruits have the
nature of personal property.
5. Par. 3.[ (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] rex vinta (
Roman Law), immovable by incorporation.

NOTE: Under this kind, ownership of the

thing is attached i.e. whether it is the
owner who placed it there is the owner or
not is immaterial.
6. Par. 4. [ (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]– immovable
by incorporation and destination
 4.a. objects must be placed by the owner
or by his agent. It becomes immobilized
only when placed in the tenement by the
owner of the tenement ( Davao Sawmill Co.
vs. Castillo 61 Phil. 709).

 4.b. When placed by a mere holder, e.g.

tenant, usufructuary, or one with a temporary
right over the immovable, objects do not
become immovable property, unless the
person acts as agent of the owner ( Davao
Sawmill case, supra).

7. Par. No. 5. [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]
 5.a. immovable by destination, depends
upon their being destined for use in the
industry or work in the tenement ( BH.
Berkenkotter. vs. Co Unjieng 61 Phil. 663)

 5.b. Additional machinery installed by

the owner of a sugar central to improve
milling capacity is realty ( Berkenkotter vs.
Cu Unjieng e Hijos, 61 Phil. 663).
Mindanao Bus. Company vs. City
Assessor 116 Phil. 501, no realty tax is
due on machineries of a transportation
company, such as welder, boring machine,
lathe machine, etc. sitting on a cement or
wooden platform, because they are not
absolutely essential to its transportation
business which is not carried on in a
building or specified land.
Movables:

General Test of Movable Character:

1) Whether it can be carried from place to

place, 2) whether the change of location
can be effected without injury to an
immovable to which the object may be
attached, and 3) whether the object is not
included in any of the ten paragraphs of
Article 415.

 By Special Provision:

e.g. Act No. 1508 recognizes that growing

crops are personal property and may be
the object of chattel mortgage see.
Section 7.

 Forces of Nature:

 e.g. electricity, gas, oxygen, light, rays.

 Consumables and Non-Consumables:

 Consumable are those which cannot be

used in a manner appropriate to their
nature without being consumed.

 Non-consumables are those not consumed

by use.
 *Fungibles and Non-Fungibles:

 1. Distinction between Fungible and Non-fungible.

Fungible, quality of being fungible depends upon
their possibility ( because of their nature or the
will of the parties), of being substituted by others
of the same kind, not having a distinct
individuality ( e.g. ten heads of cattle, or 100
copies of a newspaper of a given date)

 Non-fungibles are those which have their own

individuality and DO NOT admit of substitution
( e.g. ten bottles of wine in my room)

 Note: This is a classification based on PURPOSE

PROPERTY IN RELATION TO THE
PERSON TO WHOM IT BELONGS

PUBLIC DOMINION

PRIVATE OWNERSHIP
Dominion and Ownership:

1. Public dominion does not carry the

idea of ownership; property of public
dominion is not owned by the State, but
pertains to the State, which as territorial
sovereign exercises certain juridical
prerogatives over such property.
2. Ownership of property is in the social
group, whether national, provincial, or
municipal. Their purpose is not to serve
the State as a juridical person, but the
citizens; they are intended for the
common and public welfare, and so they
cannot be an object of appropriation,
either by the State or by private persons.
 Outside Commerce of Man:

 Rule: Property of public dominion OUTSIDE

the commerce of man.

 Principles:

 1) They cannot be alienated or leased or

otherwise be the subject matter of contracts.
 2.) cannot be acquired by prescription against
the State.
 3.) not subject to attachment and execution
 4.) cannot be burdened by voluntary
easement.
CASES:

Municipality of Cavite vs. Rojas, 30 Phil.

20 [The said Plaza Soledad being a
promenade for public use, the municipal
council of Cavite could not in 1907 withdraw
or exclude from public use a portion thereof
in order to lease it for the sole benefit of the
defendant Hilaria Rojas. In leasing a portion
of said plaza or public place to the defendant
for private use the plaintiff municipality
exceeded its authority in the exercise of its
powers by executing a contract over a thing
of which it could not dispose, nor is it
empowered so to do.
* Ignacio v. Director of Lands, 108 Phil.
335

On January 25, 1950, Ignacio filed an

application for the registration of a parcel
of land (mangrove), situated in barrio
Gasac, Navotas, Rizal, with an area of
37,877 square meters. Later, he amended
his application by alleging among others
that he owned the parcel applied for by
right of accretion.
HELD:

 The article cited is clearly inapplicable

because it refers to accretion or
deposits on the banks of rivers, while
the accretion in the present case was
caused by action of the Manila Bay.
 ON “FORESHORE” LANDS:

 “Under Section 2, Article XII of the 1987

Constitution, the foreshore and submerged areas
of Manila Bay are part of the "lands of the public
domain, waters x x x 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” ( See: FRANCISCO I. CHAVEZ
vs. PUBLIC ESTATES AUTHORITY G.R. No.
133250 July 9, 2002)
 * Laurel vs. Garcia G.R. No. 92013 July 25,
1990

 1. The subject property in this case is one of the

four (4) properties in Japan acquired by the
Philippine government under the Reparations
Agreement entered into with Japan on May 9,
1956.

 2. Petitioner Laurel asserts that the Roppongi

property and the related lots were acquired as part
of the reparations from the Japanese government
for diplomatic and consular use by the Philippine
government. Vice-President Laurel states that the
Roppongi property is classified as one of public
dominion, and not of private ownership under
ISSUE: Can the Roppongi property and others
of its kind be alienated by the Philippine
Government?

HELD:

1. The nature of the Roppongi lot as property

for public service is expressly spelled out. It is
dictated by the terms of the Reparations
Agreement and the corresponding contract of
procurement which bind both the Philippine
government and the Japanese government.
As property of public dominion, the Roppongi
lot is outside the commerce of man. It cannot
be alienated.
2. Applying Articles 419, 420, the SC
ruled: The Roppongi property is correctly
classified under paragraph 2 of Article 420
of the Civil Code as property belonging to
the State and intended for some public
service.
 ON WHETHER OR NOT THE INTENTION OF
THE GOVERNMENT HAS BEEN CHANGED
BECAUSE THE LOT HAS BEEN IDLE FOR
SOME YEARS? OR, WHETHER IT HAS
BECOME PATRIMONIAL?

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 (Cebu Oxygen and Acetylene Co. v.
Bercilles, 66 SCRA 481 (19751). 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
(Ignacio v. Director of Lands, 108 Phil. 335
[1960]).
 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 (See Heirs of Felino Santiago v.
Lazaro, 166 SCRA 368 [1988]). Abandonment
must be a certain and positive act based on
correct legal premises.
*Manila International Airport Authority vs.
Court of Appeals et.al. G.R. No. 155650 July
20, 2006

On 1 October 2001, MIAA filed with the Court of

Appeals an original petition for prohibition and
injunction, with prayer for preliminary injunction or
temporary restraining order. The petition sought
to restrain the City of Parañaque from imposing
real estate tax on, levying against, and auctioning
for public sale the Airport Lands and Buildings.
 RULING:

 First, MIAA is not a government-owned or

controlled corporation but an
instrumentality of the National
Government and thus exempt from local
taxation. Second, the real properties of
MIAA are owned by the Republic of the
Philippines and thus exempt from real
estate tax.
 a. Airport Lands and Buildings are of
Public Dominion

 The Airport Lands and Buildings of MIAA

are property of public dominion and
therefore owned by the State or the
Republic of the Philippines.
The Airport Lands and Buildings are
devoted to public use because they are
used by the public for international and
domestic travel and
transportation. The fact that the MIAA
collects terminal fees and other charges
from the public does not remove the
character of the Airport Lands and
Buildings as properties for public
use. The operation by the government
of a tollway does not change the
character of the road as one for public
use. S
PHILIPPINE PORTS AUTHORITY vs.
CITY OF ILOILO G.R. No. 109791 July
14, 2003

“Concededly, "ports constructed by the

State" are properties of the public
dominion, as Article 420 of the Civil Code
enumerates these as properties "intended
for public use." It must be stressed
however that what is being taxed in the
present case is petitioner’s warehouse,
which, although located within the port, is
distinct from the port itself.
 . In Light Rail Transit Authority v. Central Board of
Assessment Appeals et al.,22 petitioner therein
similarly sought an exemption from real estate
taxes on its passenger terminals, arguing that said
properties are considered as part of the "public
roads," which are classified as property of public
dominion in the Civil Code.23 We ruled therein that:

 …[T]he properties of petitioner are not exclusively

considered as public roads being improvements
placed upon the public road, and this [separable]
nature of the structure in itself physically
distinguishes it from a public road. Considering
further that carriageways or passenger terminals
are elevated structures which are not freely
accessible to the public, vis-à-vis roads which are
public
 On subdivision road lots:

 WOODRIDGE SCHOOL INC. et.al. vs. ARB

CONSTRUCTION INC. G.R. No. 157285
February 16, 2007

In the case of Abellana, Sr. v. Court of

Appeals, the Court held that “the road lots in a
private subdivision are private property,
hence, the local government should first
acquire them by donation, purchase, or
expropriation, if they are to be utilized as a
public road.” Otherwise, they remain to be
private properties of the owner-developer.
 Contrary to the position of petitioners, the use
of the subdivision roads by the general
public does not strip it of its private
character. The road is not converted into
public property by mere tolerance of the
subdivision owner of the public’s passage
through it. To repeat, “the local government
should first acquire them by donation,
purchase, or expropriation, if they are to be
utilized as a public road.”

 Likewise, we hold the trial court in error when

it ruled that the subject road is public property
pursuant to Section 2 of Presidential Decree
No. 1216.
OWNERSHIP

 Definition of Ownership:

 1. The independent and general power of a

person over a thing for purposes recognized
by law and within the limits established
thereby.

 2. A relation in private law by virtue of which a

thing pertaining to one person is completely
subjected to his will in everything not
prohibited by public law or the concurrence
with the rights of another.
 Rights of an Owner:

 Right to enjoy, right to dispose, and the

right to recover or vindicate

 Enjoy: right to possess, right to use, and

right to the fruits

 Dispose: right to consume or destroy or

abuse, right to encumber or alienate
 Actions to Recover:

 1. For personal property- Replevin under Rule

60, Rules of Court

2. For Real Property: Forcible Entry and

Unlawful Detainer under Rule 70 , 1997 Rules
of Civil Procedure:

Accion Publiciana- the plenary right to recover

possessesion.

Accion Reinvidicatoria- an action to

recover ownership.
 Roman Law:

 Jus possidendi-right to possess

 Jus utendi-right to use

 Just fruendi-right to the fruits

 -natural, industrial,and civil

 Jus abutendi-right to consume

 Jus disponendi-right to dispose

 Jus vindicandi-right to recover

 ACTIONS TO RECOVER:

Can an action reinvindicatoria be filed even if

the plaintiff is in actual possession of the
property?

Answer: Yes

IGLESIA NI CRISTO et.al. vs. HON. THELMA

PONFERRADA et.al. G.R. No. 168943
OCTOBER 27, 2006
 Facts:

In October 2001, Enrique Santos et.al filed a

complaint for quieting of title and/or accion
reinvidincatoria against Iglesia ni Cristo. They
alleged that they are owner of a 936 sq.m.
parcel of land in Tandang Sora, Quezon City
which they inherited from Enrique Sr.

Iglesia filed a motion to dismiss contending that

the action has prescribed. It appears that it was
able to obtain a TCT over the same parcel of
land way back in 1984-the year when the title
was issued in their favor.
In support of its contention, Iglesia contended that the
accion reinvindicatoria presupposes that the plaintiff
is not in actual possession of the property he seeks to
recover. Thus, this is true in this case because it
(iglesia) was in possession of the property in 1984
when the title was issued to it.

HELD:

Petitioner’s claim that it had been in actual or material

possession of the property since 1984 when TCT No.
321744 was issued in its favor is belied by the
allegations in the complaint that respondents had
been in actual and material possession of the
property since 1961 up to the time they filed their
complaint on October 24, 2001.
Admittedly, respondents interposed the alternative
reinvindicatory action against petitioner. An accion
reinvindicatoria does not necessarily presuppose that
the actual and material possession of the property is
on defendant and that plaintiff seeks the recovery of
such possession from defendant. It bears stressing
that an accion reinvindicatoria is a remedy seeking
the recovery of ownership and includes jus
possidendi, jus utendi, and jus fruendi as well. It is
an action whereby a party claims ownership over a
parcel of land and seeks recovery of its full
possession. Thus, the owner of real property in
actual and material possession thereof may file an
accion reinvindicatoria against another seeking
ownership over a parcel of land including jus
vindicandi, or the right to exclude defendants from the
possession thereof.
In this case, respondents filed an alternative
reinvindicatory action claiming ownership
over the property and the cancellation of TCT
No. 321744 under the name of petitioner. In
fine, they sought to enforce their jus utendi
and jus vindicandi when petitioner claimed
ownership and prevented them from fencing
the property.
 Limitations on the right of ownership:


 1. Limitations imposed for the benefit of

the State- police power [ e.g. SECTION.
16. ( Republic Act No. 7160) General
Welfare. - eminent domain; and Taxation
 2. Limitations imposed by the Law- legal
easement of waters [Art. 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 make works which
will increase the burden.] (552) ] or legal
easement of right of way [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]
 3. Limitations imposed by the owner- e.g.
lease/pledge

 4. Limitations imposed by the grantor- donor may

prohibit partition [ e.g. Art. 1083. Every co-heir has
a right to demand the division of the estate unless
the testator should have expressly forbidden its
partition, in which case the period of indivision shall
not exceed twenty years as provided in article 494.
This power of the testator to prohibit division
applies to the legitime.
 Even though forbidden by the testator, the co-
ownership terminates when any of the causes for
which partnership is dissolved takes place, or
when the court finds for compelling reasons that
division should be ordered, upon petition of one of
the co-heirs. ](1051a) ]
 Principle of “Self-Help” ( ARTICLE 429 of
the Civil Code)

 1. This authorizes the lawful possessor to

USE FORCE, not only to prevent a
threatened unlawful invasion or usurpation
thereof.

 2. Qualification to the rule that a person

should not take the law in his own hands.
It is lawful to repel force by force.
 3. Actual invasion of property may consist of a
mere disturbance of possession or of a real
dispossession. Mere disturbance of possession
[ force may be used against it at any time as long
as it continues, even beyond the prescriptive
period for an action of forcible entry e.g. if a ditch
is opened by Pedro in the land of Juan, Juan may
close it or cover it by force any time.]

 4. If, however, invasion consists of real

dispossession [ force to REGAIN possession can
be used only immediately after the dispossession]
In other words, once the usurper’s possession
has become firm by the lapse of time, the
lawful possessor must resort to the competent
authority to recover his property.
 Case:

 * German Management & Services, Inc. vs. Hon. Court of

Appeals G.R. No. 76216 and 76217 September 14, 1989.

Private respondents, claiming to be mountainside farmers of

Sitio Inarawan, San Isidro, Antipolo, Rizal and members of the
Concerned Citizens of Farmer's Association, alleged that
petitioner deprived private respondents of their property without
due process of law by: (1) forcibly removing and destroying the
barbed wire fence enclosing their farmholdings without notice;
(2) bulldozing the rice, corn, fruit bearing trees and other crops
of private respondents by means of force, violence and
intimidation, in violation of P. D. 1038 and (3) trespassing,
coercing and threatening to harass, remove and eject private
respondents from their respective farmholdings in violation of
P.D. Nos. 316, 583, 815, and 1028.
HELD:
In the case at bar, it is undisputed that at
the time petitioner entered the property,
private respondents were already in
possession thereof. There is no evidence
that the spouses Jose were ever in
possession of the subject property. On the
contrary, private respondents' peaceable
possession was manifested by the fact
that they even planted rice, corn and fruit
bearing trees twelve to fifteen years prior
to petitioner's act of destroying their crops.
Both the Municipal Trial Court and the Regional
Trial Court have rationalized petitioner's drastic
action of bulldozing and destroying the crops of
private respondents on the basis of the doctrine of
self-help enunciated in Article 429 of the New Civil
Code. Such justification is unavailing because the
doctrine of self-help can only be exercised at the
time of actual or threatened dispossession which
is absent in the case at bar. When possession
has already been lost, the owner must resort to
judicial process for the recovery of property.
This is clear from Article 536 of the Civil Code
which states, "(In) no case may possession be
acquired through force or intimidation as long as
there is a possessor who objects thereto. He who
believes that he has an action or 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 things.
 EXTENT OF OWNERSHIP and REGALIAN
DOCTRINE ( Article 437 of the Civil Code)

Extent of Ownership:

 Extent of ownership: Horizontally, ownership

extends up to the boundaries; 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.
( e.g. land traversed by power lines)
 CASES:


NATIONAL POWER CORPORATION vs.

LUCMAN IBRAHIM et.al. G.R. No. 168732,
June 29, 2007
“Thus, the ownership of land extends to the
surface as well as to the subsoil under it. In
Republic of the Philippines v. Court of Appeals,
this principle was applied to show that rights
over lands are indivisible and, consequently,
require a definitive and categorical classification,
thus:
 “The Court of Appeals justified this by saying
there is “no conflict of interest” between the
owners of the surface rights and the owners of
the sub-surface rights. This is rather strange
doctrine, for it is a well-known principle that the
owner of a piece of land has rights not only to its
surface but also to everything underneath and
the airspace above it up to a reasonable height.
Under the aforesaid ruling, the land is classified
as mineral underneath and agricultural on the
surface, subject to separate claims of title. This
is also difficult to understand, especially in its
practical application.
 Under the theory of the respondent court, the surface
owner will be planting on the land while the mining
locator will be boring tunnels underneath. The farmer
cannot dig a well because he may interfere with the
mining operations below and the miner cannot blast a
tunnel lest he destroy the crops above. How deep
can the farmer, and how high can the miner go
without encroaching on each others rights? Where is
the dividing line between the surface and the sub-
surface rights?

 The Court feels that the rights over the land are
indivisible and that the land itself cannot be half
agricultural and half mineral. The classification must
be categorical; the land must be either completely
mineral or completely agricultural.
HIDDEN TREASURE

 Concept of Hidden Treasure:

 1. Consist of money, jewels, or precious
objects [ movables only – Tolentino e.g.
prehistoric tomb excluded except the
movables found therein], and 2) they are
hidden and unknown, such that their finding
is a real discovery.
 2. Owner unknown e.g. only if the thing has
been considered lost and the owner has
already abandoned it.
 Who are “strangers”:

 Anyone who has absolutely no right over the

immovable or the thing in which the treasure
is found but INCLUDES also lessee,
usufructuary, or a paid laborer working for
the owner of the land [ provided he has not
been engaged precisely to look for hidden
treasure]
 Finder entitled to share:
 A finder is entitled to one-half (1/2) , provided:

 finding is by chance ( not purposely sought) see

however: opinion of Jurado where finding by chance
may also include cases “by a stroke of good fortune”.
( a finder ordered by the landowner to search is not
entitled)
 finder is not a co-owner of the property where it is found
 finder not a trespasser
 finder not an agent of the landowner
 finder not married under the absolute community or
conjugal partnership otherwise his share belongs to
the community [Article 117 (4), Family Code: The share
of either spouse in the hidden treasure which the law
awards to the finder or owner of the property where the
treasure is found formed part of conjugal partnership
properties]
RIGHT OF ACCESSION

 Accession:

 Accession is the right of a property to everything which is:

 a) produced thereby ( accession discreta)

 b) incorporated or attached thereto, either naturally or
artificially
 b.1. natural accession ( accession natural)
 b.2. artificial accession ( accession artificial or
accession industrial)


 Classification of Accession:

 A. Discreta: natural, industrial, and civil fruits

 B. Continua: may refer to immovables or
movables

 - immovables: alluvion ( deposits), force of river
( avulsion), change of river bed, formation of
islands, and building, planting and sowing.

 - movables: conjunction or adjunction;
specification; and, commixtion
 BASIS OF ACCESSION:


 1. Accession discreta-based on principles of justice[ it
is only “just” that the owner of a thing should also own
whatever it produces, unless there is some special
reason for a contrary resolution]

 2. Accession continua-based on necessity and utility
[ it being practical that the owner of the principal thing
should own the new things instead of a co-ownership
being established , e.g. giving riparian the right to
own accretion which they gradually receive from the
effects of the current of the waters]

 Basic principles governing the doctrine of
accession:

 The owner of a thing belongs the

extension or increase of such thing
 This extension of the right of ownership is
realized, as a general rule, under the juridical
principle that the accessory follows the
principal.
 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.
CONCEPT OF “FRUITS” ( Article 441)

 Concept of Fruits:

 All products of or income from a thing, in

accordance with its economic purpose, so
long as they do not bring about any essential
alteration thereof.
 Kinds of Fruits:


 1. natural fruits [ spontaneous products of the

soil, young, and other products of animals]


 2. industrial fruits [ produced by lands of any

kind through cultivation or labor];
 How about “cultivated trees”? Strictly speaking,
they are not fruits for they are really immovables
as long as they are attached to the land, and
they may produce fruits in themselves.

 But they may be considered as “fruits” when
they are expressly cultivated or exploited to
carry on an industry ( Paras, citing Manresa).

 3. civil fruits [ rents of buildings, price of leases

of lands, other property and the amount of
perpetual or life annuities or other similar
income]

 Exceptions to Rule [ that the owner owns the
fruits]:

 1. Possession in Good Faith by another [
fruits belong to the possessor in good faith].

 2. Usufruct [ usufructuary gets the fruits]

 3. Lease [ lessee gets the fruits from the

property directly, although the owner receives
civil fruits in the form of rents paid by the
lessess];
 4. Antichresis [creditor gets the fruits] [Art.
2132. By the contract of antichresis the
creditor acquires the right to receive the fruits
of an immovable of his debtor, with the
obligation to apply them to the payment of
the interest, if owing, and thereafter to the
principal of his credit. (1881) ]
RIGHT OF ACCESSION WITH RESPECT
TO IMMOVABLE PROPERTY

Rule:

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.
 Rights of Owner of Materials: ( Article 447)

1. Owner of the materials used by another

does not become a part owner of the thing
constructed with his materials. He is only
entitled to recover their value.

 2. According to Tolentino, the owner cannot

return the materials instead of paying their
value.
 When property is Alienated:

 When property is alienated and the

improvements thereon, action of owner of
materials shall be against owner of the
land and not against the vendee.(
presumably because consideration for the
sale already includes value of improvements)

ARTICLE 448

 Reason for the provision:

 The reason for this article is to prevent the

creation of a forced co-ownership.
 RULE: Owner of the land on which anything has
been built, planted, or sown in good faith has
OPTION:

 a) to acquire the improvements after payment of

the proper indemnity [Art. 546. Necessary
expenses shall be refunded to every possessor; but
only the possessor in good faith may retain the thing
until he has been reimbursed therefor.

 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.
(453a) ] [Art. 548. Expenses for pure luxury
or mere pleasure shall not be refunded to the
possessor in good faith; but he may remove
the ornaments with which he has
embellished the principal thing if it suffers no
injury thereby, and if his successor in the
possession does not prefer to refund the
amount expended. (454) ]

 b) to oblige builder or planter to pay for

the land and the sower the proper rent.
 Who has the “OPTION”:

 It is the owner of the land which has the

option: principle of accession, he is entitled
to the ownership of the accessory thing.

 Only permanent constructions are

contemplated.
 CASE:


 Sarmiento vs. Agana 129 SCRA 122

 ( Owner of land must exercise the option, he

can only ask for demolition of improvement,
if, after having chosen to compel builder or
planter to buy land, the latter fails to pay).
 Application of the Article:

 Good faith in building. Applies to a case

where one builds, plants, or sows on land
in which he believes himself to have a
claim of title. It does not apply where the
only interest of the builder, planter, or sower
is that of a holder, such as a tenant.
 Balucanag vs. Judge Francisco G.R. No. L-
34199, May 30, 1983

 ( Article 448 does not apply to a case of a

Lessee)
 But even in the absence of said stipulation,
respondent Stohner cannot be considered a
builder in good faith. Article 448 of the Civil
Code, relied upon by respondent judge,
applies only to a case where one builds on
land in the belief that he is the owner thereof
and it does not apply where one's only
interest in the land is that of a lessee under a
rental contract.
 Floreza vs. Evangelista, 96 SCRA 130
[G.R. No. L-25462 February 21, 1980]

 ( Said codal provision applies only when the

builder, planter, or sower believes he had the
right so to build, plant or sow because he
thinks he owns the land or believes himself
to have a claim of title.)
 Spouses Del Campo vs. Abesia 160
SCRA 379 [G.R. No. L-49219 April 15,
1988.*]

 (However, when, as in this case, the co-

ownership is terminated by the partition and
it appears that the house of defendants
overlaps or occupies a portion of 5 square
meters of the land pertaining to plaintiffs
which the defendants obviously built in good
faith)
 OTHER (NEW) CASES:

 PNB vs. DE JESUS G.R. No. 149295 September

23, 2003 { Equally significant is the fact that the
building, constructed on the land by Ignacio, has in
actuality been part of the property transferred to
petitioner. Article 448, of the Civil Code refers to a
piece of land whose ownership is claimed by two or
more parties, one of whom has built some works (or
sown or planted something) and not 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 otherwise for, 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.” }
 PARILLA et.al. VS. PILAR G.R. No. 167680
November 30, 2006 {Jurisprudence is
replete with cases[21] which categorically
declare that Article 448 covers only cases in
which the builders, sowers or planters
believe themselves to be owners of the land
or, at least, have a claim of title thereto, but
not when the interest is merely that of a
holder, such as a mere tenant, agent or
usufructuary. A tenant cannot be said to be a
builder in good faith as he has no pretension
to be owner.[22]
 In a plethora of cases,[23] this Court has held
that Articles 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}
 ISMAEL MACASAET et.al. vs. SPOUSES
MACASAET G.R. Nos. 154391-92 September 30,
2004

 “This Court has ruled that this provision covers only

cases in which the builders, sowers or planters
believe themselves to be owners of the land or, at
least, to have a claim of title thereto. It does not apply
when the interest is merely that of a holder, such as a
mere tenant, agent or usufructuary. From these
pronouncements, good faith is identified by the belief
that the land is owned; or that -- by some title -- one
has the right to build, plant, or sow thereon.
However, in some special cases, this Court has used
Article 448 by recognizing good faith beyond this
limited definition. Thus, in Del Campo v.
Abesia,[68] this provision was applied to one whose
house -- despite having been built at the time he
was still co-owner -- overlapped with the land of
another.[69] This article was also applied to cases
wherein a builder had constructed improvements
with the consent of the owner. The Court ruled that
the law deemed the builder to be in good faith.[70]
In Sarmiento v. Agana,[71] the builders were found
to be in good faith despite their reliance on the
consent of another, whom they had mistakenly
believed to be the owner of the land.[72]
Based on the aforecited special cases, Article
448 applies to the present factual
milieu. The established facts of this case
show that respondents fully consented to the
improvements introduced by petitioners. In
fact, because the children occupied the lots
upon their invitation, the parents certainly
knew and approved of the construction of the
improvements introduced thereon. Thus,
petitioners may be deemed to have been in
good faith when they built the structures on
those lots.
 RIGHT BEFORE PAYMENT:

 1. Builder has right of retention. The right

of retention extends NOT ONLY to the
IMPROVEMENTS, but also to the LAND.

 2. Neither of the parties may bring a

reinvindicatory action against the other.
Landowner has no right to ask for rents from
the builder.
 3.After the owner of the land chooses to
compel the builder or planter to pay for the
land or the sower the proper rent, the latter
will lose right of retention if he fails to pay as
required.

 4. In the event of failure of the builder to pay

after landowner has opted to sell the land,
the latter is entitled to removal of
improvements.

 5. If, in the meantime, improvements is gutted

by fire, right of retention is extinguished.
Manotok Realty vs. Tecson 164 SCRA 587-
Since the improvements have been gutted by
fire, and therefore, the basis for private
respondent's right to retain the premises has
already been extinguished without the fault of
the petitioner, there is no other recourse for
the private respondent but to vacate the
premises and deliver the same to herein
petitioner.
 Filipinas Colleges Inc. vs. Timbang G.R.
No L-12812 September 29, 1959 (Upon
failure of builder to pay the value of land, the
landowner DOES NOT necessarily become
AUTOMATICALLY THE OWNER OF
IMPROVEMENTS under Article 445.)

There is nothing in the language of these
two article, 448 and 546, which would
justify the conclusion of appellants that,
upon the failure of the builder to pay the
value of the land, when such is demanded
by the land-owner, the latter becomes
automatically the owner of the
improvement under Article 445.
 Remedies of the parties are:

 1….. and then they decide to leave things as

they are and assume the relation of lessor
and lessee, and should they disagree as to the
amount of rental then they can go to the court to
fix that amount.

 2. Court approved the sale of the land and

the improvement in a public auction applying
the proceeds thereof first to the payment of the
value of the land and the excess, if any, to be
delivered to the owner of the house in payment
thereof.
 Alternatives granted to OWNER OF LAND when
Builder etc. in Bad Faith:

 1. Appropriate what has been built, planted, or

sown in bad faith, without any obligation to
INDEMNIFY.

 2. Ask the builder, planter, or sower to remove

what he has built, planted, or sown.

 3. Compel builder or planter to pay the value of

the land or the sower the proper rent.
 Necessary Expenses: ( Article 452)

 As regards necessary expenses, builder,

planter, or sower is entitled to be reimbursed,
although, he loses the accessory or
improvement.
 What are “necessary expenses”?

 Necessary expenses are those made for the

preservation of the property or thing upon
which they have been expended e.g. dike to
preserve from destruction caused by blood.

 Conversely, that those that merely “augment”

the thing like expenses for the leveling of the
land are not necessary expenses.
RIPARIAN OWNER:

 Rule:

 Owners of lands adjoining the banks of

rivers [RIPARIAN OWNER] belong the
accretion which they gradually receive from
the effects of the current of the waters.(
alluvion) [accession discreta].
 Reason:

 Owners adjoining banks of rivers are

exposed to floods and other damages due to
the destructive force of the waters and if by
virtue of law, they are subject to
encumbrances, it is only just that such risks
and dangers should in some way be
compensated.
 Requisites for “Alluvion”:

 1) the deposit be gradual and imperceptible

2) it be made through the effects of the
current of the water ( deposits by human
intervention not included) and 3) the land
where accretion takes place is adjacent to
the banks of rivers.
 Ignacio vs. Director of Lands and Valeriano
[L-12958 May 30, 1960 May 30, 1960]
 ( Riparian accretion should be distinguished
from the accretion due to sea water. In the latter
case, the accretion is a public land)

 De Buyser vs. Director of lands, et al. [G.R.

No. L-22763 March 18, 1983] March 18,
1983

 ( Land formed by accretion from the sea is part

of the public domain. It cannot be acquired by
adverse possession. It is outside the commerce
of man unless otherwise declared by the
executive and legislative branch of the
 Grande, et al. vs. Hon. Court of Appeals,
et al. [G.R. No. L-17652 June 30, 1962]
June 30, 1962

 [An accretion to land covered by Torrens title

does not automatically become registered
land. It must be registered. If not registered,
it is subject to acquisition through
prescription by third persons.]
AVULSION: ( Article 459)

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.
 Transfer by Other Forces:

 A known portion of land may be transferred

from one tenement to another by other forces
of nature than the current of a river, e.g. land
from a mountain slope rolls down to another
tenement. Present article may be applied by
analogy.
CHANGE OF RIVER BED:
 Rule:

 River beds which are abandoned thru 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.
 Provision of the Water Code of the Philippines [ PD 1067]:


 Art. 58. – When a river or stream suddenly changes its course to
traverse private lands, the owner of the affected lands may not
compel the government to restore the river to its former bed; nor
can they restrain the government from taking steps to revert the
river or stream to its former course. The owner of the lands thus
affected are not entitled to compensation for any damage
sustained thereby. However, the former owners of the new bed
shall be the owners of the abandoned bed in proportion to
the area lost by each.

 The owners of the affected lands may undertake to return the

river or stream to its old bed at their own expense; Provided, that
a permit therefore is secured from the Secretary of Public Works [
Transportaion and Communication] and works commenced within
two years from the change in the course of the river or stream.,
 THREE TYPES OF ACCESSION WITH
RESPECT TO MOVABLE PROPERTY:

 Adjunction

 Mixture ( commixtion or confusion)

 Specification
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. (376)

 Criteria to Determine Principal:

 Order of Preference in determining which is the

principal and which is the accessory: 1. That of
the importance or purpose of the things as
stated in this article 2) That of their value 3)
That of their volume.
 Rules:

 1. Owner of accessory thing in bad faith, he

shall lose the thing incorporated.

 -he shall have obligation to indemnify

owner of principal thing.

 2. Owner of the principal is the one in bad faith,

owner of accessory may choose: 1) compelling
principal to pay the value of accessory thing
or 2) thing belonging to him be separated,
even if it be necessary to destroy the principal
thing. Damages are available in both cases.
ADJUNCTION MIXTURE SPECIFICATION

1. Involves at least 1. involves at least 1. may involve only

two (2) things. two (2) things. one things ( MAY
BE MORE) but
2.As a rule, accessory 2. As a rule, co- form is changed.
follows the principal ownership results
2. As a rule, accessory
3. the things joined 3. the things mixed follows the principal
retain their nature or confused may
either retain or lose 3. the new object retains
their respective or preserves the nature
nature of the original object
 QUIETING OF TITLE ( N)

 Quieting of Title- purpose: the quieting of title or

removal of a cloud therefrom when there is an
apparently valid or effective instrument or
other claim which in reality is void,
ineffective, voidable or unenforceable.

 Originated from equity jurisprudence reasons:

1) prevention of litigation 2) protection of the
true title and possession 3) real interest of both
parties, and that of right and justice, which
require that the precise state of the title be
known.
 Difference between “an action to quiet title”
from a suit “ to remove cloud”

 To quiet title-an action for the purpose of

putting an end to vexatious litigation in
respect to the property involved.

 To remove cloud-to procure cancellation,

delivery of, release of an instrument,
encumbrance, or claim constituting a claim
on plaintiff’s title
 Application:

 1. Applies only in the case of real property.

 2. The matter complained of must have prima

facie appearance of validity, therefore, when
invalid or inefficacious on its face, an action
to remove cloud on title does not exist.

 Examples: title procured by fraud, deceit,

forged instrument, taxes levied on exempt
property etc.
 PRESCRIPTIVE PERIOD TO FILE AN
ACTION TO QUIET TITLE:

 Prescription of the right to quiet title:

 Plaintiff is in possession, the ACTION

DOES NOT prescribe.

 Plaintiff is NOT in possession, the ACTION

MAY PRESCRIBE.
Gallar vs. Husain G.R.No. L-20954 May 29, 1967
 By the delivery of possession of the land on April 2,
1919 the sale was consummated and title was
transferred to the appellee. Indeed, this action is not
for specific performance; all it seeks is to quiet title, 6
to remove the cloud cast on appellee's ownership as
a result of appellant's refusal to recognize the sale
made by the predecessor. And, as plaintiff-appellee is
in possession of the land, the action is
imprescriptible. 7 Appellant's argument that the action
has prescribed would be correct if they were in
possession as the action to quiet title would then be
an action for recovery of real property which must be
brought within the statutory period of limitation
governing such actions

 Caragay-Layno vs. Hon. Court of Appeals
G.R. No. 52064 December 26, 1984
 Prescription cannot be invoked against
JULIANA for the reason that as lawful
possessor and owner of the Disputed Portion,
her cause of action for reconveyance which, in
effect, seeks to quiet title to the property, falls
within settled Jurisprudence that an action to
quiet title to property in one's possession is
imprescriptible. Her undisturbed possession
over a period of fifty-two (52) years gave her 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 on her own
title.
 THIS IS NOT A REMEDY TO SETTLE A
“BOUNDARY DISPUTE”, as held in the case
of
ANASTACIA VDA. DE AVILES, ET AL.,
petitioners, vs. COURT OF APPEALS and
CAMILO AVILES, G.R.
No. 95748. November 21, 1996
 “We agree with respondent Court. The facts
presented unmistakably constitute a clear
case of boundary dispute, which is not
cognizable in a special civil action to quiet
title.
Quieting of title is a common law remedy for
the removal of any cloud upon or doubt or
CO-OWNERSHIP:
 Concept:

 1. Right of common dominion which two or more

persons have in a spiritual part of a thing, not
materially or physically divided [ Sanchez Roman]

 2. 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 [
Manresa]

 3. Co-ownership is not a real right distinct from

ownership, but is a mere form or manifestation of
ownership [ De Diego].
 Characteristics:

 1. plurality of subjects 2. unity of object (

material indivision) and recognition of the
ideal or intellectual shares of co-owners.

 relationship of co-owner to his other co-

owners is fiduciary in character.
 Cases:

 While a vendee a retro, under Article 1613 of

the Code, "may not be compelled to consent to
a partial redemption," 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.7 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 ( Adille vs. Hon.
Court of Appeals et.al. G.R. No. 44546 29
January 1988)
 "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 in view of
their lack of a clear repudiation of the co-ownership,
duly communicated to the petitioners (the other co-
owners), private respondents cannot acquire the
shares of the petitioners by, prescription. The record
in the Office of the Assessor is not the sufficient
repudiation and communication contemplated by
the law. Neither may the Private respondents'
possession of the premises militate against
Petitioners' claim. After all, co-owners are entitled to
be in possession of the premises.The existence of
the co-ownership here argues against the theory
of implied trust, for then a co-owner possesses
co-owned property not in behalf of the other co-
owners but in his own behalf. (Mariano vs. De
Vega G.R. No. L-59974 March 9, 1987 )
 Presumption of Equality ( Shares and
Chares):

 Share of co-owners in the benefits as well as

in the charges shall be proportional to their
respective interest. Stipulation to the contrary
shall be void.

 There is presumption of equality in the

shares.
 Limitation on the right of a co-owner to use
thing owned in common:

 Use only: 1. purpose for which it is intended

2. without prejudice to the interests of the
co-ownership and 3. without preventing
others from making use thereof according to
their own rights.
 Meaning of “purpose for which it is intended”:

 What is meant by “purpose for which it is

intended”? Agreement of the parties should
govern. If there is none, that use for which it
is ordinarily adapted according to its nature (
e.g. house only for living and not to be used
as a factory) or use to which is has been
previously devoted.
 Principles:

 1. Mere tolerance on the part of the co-

owners cannot legalize the change in the use
of a thing from that intended by the parties.

 2. No prejudice to co-ownership-co-owners
agreed to lease, co-owner cannot use
without paying rent.
 De Guia vs. Court of Appeals G.R. No.
120864. October 8, 2003

 “ The right of enjoyment by each co-owner is limited

by a similar right of the other co-owners. A co-owner
cannot devote common property to his exclusive use
to the prejudice of the co-ownership. Hence, if the
subject is a residential house, all the co-owners may
live there with their respective families to the extent
possible. However, if one co-owner alone
occupies the entire house without opposition
from the other co-owners, and there is no lease
agreement, the other co-owners cannot demand
the payment of rent. Conversely, if there is an
agreement to lease the house, the co-owners can
demand rent from the co-owner who dwells in the
house.”
 Right of any co-owner:

 ANY ONE CO-OWNER MAY BRING AN

ACTION FOR EJECTMENT, DEPARTURE
from a previous ruling Palarca vs. Baguisi 38
Phil. 177
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 and unlawful detainer (accion
interdictal), recovery of possession (accion
publiciana), and recovery of ownership
(accion de reivindicacion). The summary
actions of forcible entry and unlawful detainer
seek the recovery of physical possession
only. These actions are brought before
municipal trial courts within one year from
dispossession (De Guia vs. Court of Appeals
G.R. No. 120864. October 8, 2003)
Any co-owner may file an action under
Article 487 not only against a third
person, but also against another co-
owner who takes exclusive possession
and asserts exclusive ownership of the
property. In the latter case, however, the
only purpose of the action is to obtain
recognition of the co-ownership. The
plaintiff cannot seek exclusion of the
defendant from the property because as
co-owner he has a right of
possession. The plaintiff cannot recover
any material or determinate part of the
 Suit by one co-owner vs. co-owner:

 Co-owner vs. Co-owner.- one co-owner may

bring an action even against another co-
owner who takes exclusive possession and
asserts ownership in himself alone. Remedy,
however, is limited to obtaining
recognition of the co-ownership. He
cannot be excluded from possession.
Acts of Preservation or Acts of Administration Acts of Alteration,
Necessary Repairs or encumbrance, or
Management alienation

1. Any co-owner may 1. This is to be decided 1. Unanimous consent

decide on an act of by the majority of the of all the co-owners
preservation ( Article co-owners ( Article is needed
489) 489 and 492) 2. Run to the courts for
2. If practicable, first 2. By majority is meant appropriate relief, if
notify his co-owner the controlling withholding of
of the necessity of interest (financial consent of one or
repairs majority) not some of the co-
numerical majority. owners is clearly
3. Appointment of an prejudicial to the
administrator if there common interest (
is no majority. Article 491)
 What is “Alteration”:

 What constitutes ALTERATION? Alterations

is changing the thing from the state in which
the others believe it should remain, or
withdraws it from the use to which they
desire it to be intended.
 Some examples of “acts of alteration”:

 1. Sale, donation, or mortgage of the entire

property
 2. Sale, donation or mortgage of a part of the
property but with definite boundaries
 3. A voluntary easement
 4. Lease of real property
 5. Construction of a house on a lot owned in
common
 6. Contracts of long duration
 EFFECT OF AN ILLEGAL ALTERATION:

 1) Co-Owner will lose what he has spent

 2) Demolition can be compelled

 3) Liability for loss and damages

 4) Whatever benefits belong to the co-

ownership
 LEASE OF IMMOVABLE PROPERTY:

 1. When lease is recorded with the Registry of

Property [Art. 1648. Every lease of real estate
may be recorded in the Registry of Property.
Unless a lease is recorded, it shall not be
binding upon third persons. (1549a) ], it is not a
mere act of administration.

 2. Note also [ Article 1878 (8) To lease any real

property to another person for more than one
year.] lease of immovable property- mere
majority cannot lease real property for more
than one year.
 EXTENT OF CO-OWNER’S RIGHT:

 A co-owner is full owner of his part and the

fruit and benefits pertaining thereto. He may
alienate, assign, or mortgage it, and even
substitute another person in its enjoyment.

 Before partition, no individual or co-

owner can claim title to any definite
portion. All that he has is an ideal or
abstract quota or proportionate share in
the entire land or thing.
From the foregoing, it may be deduced
that 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." ( Paulmitan vs. Court of Appeals
G. R. No. 61584 November 25, 1992)
 Limitation on the “Right” of a Co-Owner:

 Limitation: co-owner cannot alienate rights

which are purely personal, such as his share
in a right to use and habitation.
 Right of Redemption of a co-owner:

 Art. 1620. A co-owner of a thing may exercise

the right of redemption in case the shares of all
the other co-owners or of any of them, are sold
to a third person. If the price of the alienation is
grossly excessive, the redemptioner shall pay
only a reasonable one.
 Should two or more co-owners desire to
exercise the right of redemption, they may only
do so in proportion to the share they may
respectively have in the thing owned in
common. (1522a)
 Termination of co-ownership:

 1. Consolidation in only one of the owners of

all the shares of the others.
 2. Destruction of the thing or the loss of the
right
 3. Prescription in favor of a third person.
 4. Partition ( agreement to subdivide is not
enough, there must be a subdivision plan
drawn and the co-owners actually occupied
the respective portions in the plan and titles
issued accordingly).
 CASES:

 1. "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 in view of their lack
of a clear repudiation of the co-ownership, duly
communicated to the petitioners (the other co-owners),
private respondents cannot acquire the shares of the
petitioners by, prescription. The record in the Office of
the Assessor is not the sufficient repudiation and
communication contemplated by the law. Neither may
the Private respondents' possession of the premises
militate against Petitioners' claim. After all, co-owners are
entitled to be in possession of the premises.
 The existence of the co-ownership here argues
against the theory of implied trust, for then a co-
owner possesses co-owned property not in behalf of
the other co-owners but in his own behalf.[ Mariano
vs. De Vega G.R. No L-59974 March 9, 1987.]
 2. The redemption of the land made by
Fanesa did not terminate the co-ownership
nor give her title to the entire land subject of
the co-ownership….. 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 (Supra,
art. 1607). 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."[
Paulmitan vs. Court of Appeals G.R. No.
61584 November 25, 1992.]
POSSESSION:
 Concept of Possession

 To possess means to have, to actually and

physically occupy a thing, with or without a
right. In general, it is the holding of a thing or
of a right, whether by material occupation
or by the fact that the thing or the right is
subjected to the action of our will.
Distinction between possession and ownership:

Possession and ownership are two different legal

concepts. Just as possession is not a definite proof
of ownership, neither is non-possession inconsistent
with ownership. Even assuming that petitioners’
allegations are true, it bears no legal consequence in the
case at hand because the execution of the deeds of
conveyances is already deemed equivalent to
delivery of the property to respondent, and prior
physical delivery or possession is not legally required.[28]
Under Article 1498 of the Civil Code, “when the sale is
made through a public instrument, the execution thereof
shall be equivalent to the delivery of the object of the
contract, if from the deed the contrary does not appear or
cannot be inferred.” Possession is also transferred,
along with ownership thereof, to respondent by virtue
of the notarized deeds of conveyances.[29]
 Material Occupation

 Possession always includes the idea of

occupation, except in cases under Article 537
[Art. 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] possession
cannot exist without it.

 It is not, however, necessary that the person in

possession should himself be the occupant. The
occupancy can be held by another in his name.
 Animus Possidendi

 This involves a state of mind whereby the

possessor intends to exercise and does
exercise a right of possession, whether this
right be legal or otherwise and the intention
and will to possess usually are inferred from
the fact that the thing in question is under the
apparent power and control of the alleged
possessor. Two requisites: 1) Occupancy,
apprehension, or taking 2) intent to possess.
 Constructive Possession:

 Possession 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.

 The rule is: Possession and control of a

PORTION of a tract under a claim of
ownership of is a CONSTRUCTIVE
possession of all, if the remainder is not in
the adverse possession of another.
 Viewpoints of Possession:

 a) RIGHT TO POSSESSION ( jus

possidendi)- This is a right or incident of
ownership ( e.g. owner of parcel of land is
entitled to possess)

 e.g. “right of registered owner to possess a

parcel of land”
 b) RIGHT OF POSSESSION ( jus
possessionis)- This is an independent right of
itself, independent of ownership ( e.g. lessee
by virtue of the lease agreement is entitled to
possess)
 Degrees of Possession:
 1. Mere holding or possession WITHOUT title whatsoever and in
violation of the right of the owner e.g. possession of a thief or a
usurper of land.

 2. Possession with juridical [ a possession which gives the

transferee a right over the thing which the transferee may set up
even against the owner] title, BUT not THAT of OWNERSHIP.
This is possession peaceably acquired e.g. possession of tenant,
depositary, or pledgee.

 3. Possession with a just title, or a title sufficient to transfer

ownership, BUT NOT FROM THE TRUE OWNER e.g. the
possession of a vendee of a piece of land from one who pretends
to be the owner but is in fact not the owner.

 4. Possession with a just title FROM THE TRUE OWNER. This is

possession that springs from ownership.
Possession may be had in two concepts:

 Possession of Holder:

 One who possesses as a mere holder, or not

in the concept of owner, acknowledges in
another a SUPERIOR right which he
believes to be ownership, whether his belief
be right or wrong e.g. tenant, usufructuary,
or borrower of a thing in commodatum.
 Possession in Concept [ opinion not of
possessor himself but opinion of others] of
Owner:

 The possessor in the concept of owner may

be the OWNER himself or one WHO
CLAIMS to be so.
 Effects of Possession in Concept of Owner:

 1. Possession in concept of owner is converted into

ownership by the lapse of time necessary for prescription.

 2. Possessor can bring all actions necessary to protect

his possession, availing himself of any action which an
owner can bring, except accion reinvidicatoria which is
substituted by the accion publiciana.

 3. He can ask for inscription of his possession in the

registry of property.

 4. Upon recovering possession, he demand fruits and

damages.
 Possessor in Good Faith:

 1. Good faith consists in the possessor’s belief that the

person from whom he received the thing was the owner of
the same and could convey his title.

 2. The belief of the possessor that he is the legal owner

of the thing must be based upon SOME title or mode of
acquisition such as sale, a donation, inheritance, or other
means of transmitting ownership. Without this, there
can be no real well-grounded belief of one’s
ownership.

 3. Ignorance of the law may be excusable and thus serve

as the basis of good faith. ( e.g. prohibition to transfer
during the 5 year period in case of lands covered by a
free patent)
 Possession in Bad Faith:

 1. One in possession of property knowing

that his title thereto is defective.

 2. Examples: Possessor bought from one

whom she knew was merely a tenant; where
he knew that land belong to another etc.
ACQUISITION OF POSSESSION:

 Essential Requisites:

 1. Acquisition of possession involves two (2)

elements: corpus [material holding] and
animus [intent to possess].
 Constructive Delivery:

 1. Constructive delivery may be considered

as equivalent to material occupation in those
cases where such occupation is essential to
the acquisition of possession.
 2. Cases of constructive delivery which
involve material occupation are: tradition
brevi manu [ takes place when one who
possesses the things by title OTHER than
ownership continues to possess the same but
under a new title that of OWNERSHIP] and
constitutum possessorium [ when the owner
alienates the thing, but continues to possess the
same under a different title, such as that of
depositary, pledge, or tenant].

Another means of acquiring possession is
through performance of juridical acts and
legal formalities e.g. donations, succession,
contracts, judicial possession, execution of
judgments, execution and registration of
public instruments etc.
Ignacio Wong vs. Hon. Carpio and Manuel
Mercado [ G.R. No. 50264 October 21,
1991].

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.
(Paras, Civil Code of the Philippines, Vol. II,
1989 Ed., p. 400).
Art. 534. On 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 the death of
the decedent. (442)
 Reason for the Article:

 Bad faith is personal and intransmissible. Its effect

must, therefore, be suffered only by the person who
acted in bad faith; his heir should not be saddled with
such consequences.
 e.g. possession of decedent (in bad faith) is 5 years,
possession of successor ( 10 years), successor
deemed to have acquired property by prescription.
He cannot be required to establish possession for 25
years because of Art. 534.

 Good faith can benefit only the person who HAS it;
and the good faith of the heir cannot erase the effects
of the bad faith of his predecessor.
 Art. 537. Acts merely tolerated, and those
executed clandestinely and without the
knowledge of the possessor of a thing, or by
violenc e, do not affect possession.

 Acts merely tolerated:

 1. They are those which by reason of

neighborliness or familiarity, the owner of
property allows his neighbor or another person
to do on the property. Acts of little disturbances,
in the interest of neighborliness or friendly
relations e.g. permitting others to do on his
property to pass his land, tie a carabao, or
getting some water from a well.
POSSESSORS BY MERE TOLERANCE
CANNOT BE CONSIDERED AS BUILDERS
IN GOOD FAITH UNDER ARTICLE 448 OF
THE CIVIL CODE

Case:

KILARIO vs. COURT OF APPEALS G.R.

No. 134329, January 19, 2000
“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.26 Thus, they cannot be considered possessors
nor builders in good faith. It is well-settled that both
Article 44827 and Article 54628 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.
EFFECTS OF POSSESSION:

Art. 540. Only the possession acquired

and enjoyed in the concept of owner can
serve as a title for acquiring dominion
Application of Article:

1. To consolidate title by prescription, the

possession must be under claim of ownership
and it must be peaceful, public and
uninterrupted.

2. Acts of possessory character done by virtue

of a license or mere tolerance on the part of the
real owner are not sufficient e.g. possession by
lessees, trustees, pledges, tenants.
3. Where a party through ignorance,
inadvertence, or mistake occupies a land up
to a given line beyond his actual boundaries
because he believes it to be his true line,
BUT HAS NO SPECIFIC INTENTION of
claiming title to that extent, if it should be
ascertained that such line is on his
neighbor’s land, such possession is NOT
ADVERSE. The question is one of intent.
Meaning of “adverse possession”:

Case:

 Wolfson vs. Aenlle G. R. No. 21312 November 22,

1924

 Facts:

1. At or about the time the shortage in plaintiff's land

was discovered, the defendant said to the plaintiff:
"Let us wait for the cadastral survey, and if it is
established by that survey that I am holding any part
of your property I will return to you all of that portion
which may be in excess of what appears in my title.“
2. The cadastral survey was later made from
which it was found as a fact that the
defendant was holding 1,635 square meters
of plaintiff's land in excess of defendant's
record title.

3. The refusal of the defendant to abandon

his claim to the plaintiff for the excess of the
1,635 square meters, which was found to
exist by the cadastral survey, resulted in the
commencement of this action.
 Held:

After 1910, the defendant's possession of

the land in dispute could not be adverse to
plaintiff's claim until after the cadastral survey
was made, and the defendant had refused to
abandon his claim for the excess. That
important fact, having been established by
the evidence of an impartial witness whose
testimony is not disputed or denied, is
conclusive of this case. Under such a state of
facts, the defendant could not acquire title by
prescription.
Art. 541. A possessor in the concept of
owner has in his favor the legal
presumption that he possesses with a
just title and he cannot be obliged to
show or prove it.

 Meaning of “Just Title”:

1. Title is NOT NECESSARILY the

document.
2. By “just title” is meant that which is legally
sufficient to transfer ownership or the real
POSSESSION PRESCRIPTION

a) “Just Title” is presumed a) “Just Title” must be proved

b) “Just Title” means “titulo b) “Just Title” means “titulo ” (

verdadero y valido” [ true and merely colorable title although
valid title sufficient to transfer there was a mode of transferring
ownership] ownership)
Notes: Notes:
There is a mode of transferring ownership [Art. 712. Although there is a mode of acquiring ownership,
Ownership is acquired by occupation and by intellectual still something is wrong, because the grantor is not
creation.
Ownership and other real rights over property are the owner .
acquired and transmitted by law, by donation, by estate
and intestate succession, and in consequence of certain
contracts, by tradition.
They may also be acquired by means of prescription.
(609a) ]
, and the grantor is the owner. No need for
prescription.
RULE ON “NECESSARY EXPENSES”:

Necessary expenses shall be refunded to

every possessor; but only the possessor
in good faith may retain the thing until he
has been reimbursed therefor. ( ARTICLE
546)
WHAT ARE “NECESSARY EXPENSES”?

Necessary Expenses:

1. Expenses imposed by the existence of the thing

itself, and have no relation to the desire or purpose of
the possessor; hence, they are reimbursed, whatever
may be the juridical character [ whether one is in
good faith or bad faith] of the person who advanced.

2. Those incurred for the preservation of the thing,

they ARE NOT considered as improvements. They
DO NOT increase the value of the thing, but merely
prevent it from being useless.
RULE ON “USEFUL EXPENSES”:

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.
WHAT ARE “USEFUL EXPENSES”?

Useful Expenses:

They are incurred to give utility or

productivity of the thing. Reimbursed ONLY
to the possessor in good faith. E.g. expenses
for filling up with soil, house constructed on
the land etc.
Can there be waiver of the right of retention?

Answer: Yes

The surrender of possession of the property

by the possessor in good faith amounts to a
waiver of right of retention; but the claim for
the expenses is not thereby renounced.
Can “possessor in good faith” remove
improvements?

YES.

If the useful improvements can be

removed without damage to the principal
thing, the possessor in good faith may
remove them, unless the person who
recovers the possession exercises the
option under paragraph 2 of the
preceding article.
RULE ON EXPENSES FOR “PURE
LUXURY”:

Art. 548. Expenses for pure luxury or

mere pleasure shall not be refunded to
the possessor in good faith; but he may
remove the ornaments with which he has
embellished the principal thing if it suffers
no injury thereby, and if his successor in
the possession does not prefer to refund
the amount expended.
What are expenses for “luxury”?

Expenses for Luxury:

These expenses do not affect the existence

or the substance of the thing itself, but ONLY
the COMFORT, CONVENIENCE, or
ENJOYMENT of the possessor. They ARE
NOT subject to reimbursement.
 RIGHTS OF POSSESSORS:

 1. Useful expenses are reimbursed to the

possessor in good faith; by omission, the Code
denies this right to the possessor in bad faith.

 2. With respect to expenses for pure luxury or

pleasure, two kinds of possessors [ good faith
and bad faith possessors] HAVE THE SAME
RIGHT i.e. to remove the improvements upon
which they were made if the principal thing will
suffer no injury and the owner does not prefer
to retain them upon payment of the proper
indemnity.
3. Take note that with regard to USEFUL
EXPENSES, the possessor in BAD FAITH
has NO RIGHT TO REMOVE.

BUT, as regards “expenses for pure luxury”,

a situation may arise where a possessor in
bad faith may receive the value of the
luxurious improvements under Article 549.
In the case of *Carbonell vs. Hon. Court of
Appeals, et al. [ G.R. No. L-29972
January 26, 1976], which involve “useful
improvements”, the Supreme Court held that
“as a matter of equity, the possessors in
bad faith should be allowed to remove the
aforesaid improvements ( useful
improvements e.g. draining the property, filling it
with 500 cubic meters of garden soil, building a wall
around it and installing a gate and P11,929.00 for
erecting a bungalow thereon), unless the lawful
possessor chooses to pay for their value
at the time the possessor in bad faith
introduced said useful improvements.
HOWEVER, in the later case of of MWSS vs.
COURT OF APPEALS 143 SCRA 623, the
Supreme Court reiterated that the right given
a possessor in bad faith to remove
improvements applies only to
improvements for pure luxury or mere
pleasure as provided in Article 549 of the
Civil Code.
POSSESSION OF MOVABLE:

The possession of movable property

acquired in good faith is equivalent to a
title.

Requisites for Title:

1) Possession is in good faith; 2) the owner

has voluntarily parted with the possession of
the thing; 3) possessor is in the concept of
an owner.
 RULE: If the owner has lost the thing, or 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 ( Rule of
Irrevindicability).
EXCEPTION TO THE RULE GRANTING
OWNER THE RIGHT TO RECOVER:

When possessor acquired it in good faith in

a public sale.

In this case, owner may recover provided he

shall reimburse the possessor.
There are, however, instances where even if
the owner offers to reimburse, still he cannot
recover as a matter of right:

1. Estoppel

2. If title is lost through prescription

3. If possessor is a holder in due course of a

document of title
What is the meaning of “unlawful deprivation”?

Unlawful deprivation extends to all cases-

not only in cases where property is stolen-
where there is no valid transmission of
ownership including those where the
proprietor has entrusted the thing to a
borrower
 The case of *EDCA Publishing &
Distributing Corp. vs. Santos [ G.R. No.
80298 April 26, 1990].

Issue: Whether the petitioner has been

unlawfully deprived of the books because the
check issued by the impostor in payment
therefor was dishonored.
HELD:

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.
USUFRUCT:

 Definition of “Usufruct”:

 Real Right, of a temporary nature, which

authorizes its holder to ENJOY all the
benefits which results from the normal
enjoyment of another’s property, with the
OBLIGATION TO RETURN, at the
designated time, either THE SAME THING
or, in special cases (QUASI-USUFRUCT), its
EQUIVALENT.
 Extent of Usufruct:

 1. Usufruct is a REAL RIGHT [ power belonging

to a person over a specific thing, without a
passive subject individually determined against
whom such right may be personally exercised]
and includes both the jus utendi AND the jus
fruendi.

 2. There is an obligation to preserve the form

and substance of the thing in usufruct AS A
RULE e.g. if usufruct on a fishpond, it must be
preserved as a fishpond; if a sugarcane field, it
must be preserved as a sugarcane field.
 Consumable things:

 1. With regard to consumable things, strictly

speaking there can be no usufruct, because
they cannot be enjoyed without being
consumed. But since the law recognizes
usufruct over ALL KINDS OF THINGS, if thing is
consumable, usufruct should be considered as
on their value if appraised, or an equal quantity
and quality if not.

 2. Even unproductive things can be an object of

usufruct.
 Usufruct granted to aliens:

 *Ramirez, et al. vs. Vda. de Ramirez, etc.,

et al. [ G.R. No. L-27952 February 15,
1982]

 This opinion notwithstanding, We uphold the

usufruct in favor of Wanda because a
usufruct, albeit a real right, does not vest
title to the land in the usufructuary and it
is the vesting of title to land in favor of
aliens which is proscribed by the
 Rights of Usufructuary:

 1. The usufructuary has the right to enjoy the

property, to the same extent as the owner,
BUT ONLY WITH RESPECT TO ITS USE
and the RECEIPT OF ITS FRUITS.

 2. He cannot, however, extract products

which do not constitute fruits, because he is
bound to preserve the form and
substance of the thing.
 USUFRUCTUARY MAY LEASE HIS
USUFRUCTUARY RIGHTS

Art. 572. The usufructuary may personally

enjoy the thing in usufruct, lease it to
another, or alienate his right of usufruct,
even by a 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 the agricultural year.
 Usufruct over Consumable Things:

 1. Improperly called “quasi-usufruct”.

 2. The usufruct is not upon the consumable things

THEMSELVES which are delivered to the
usufructuary, but upon THE SUM representing their
value or upon a quantity of things of the same kind
and quality.

 3. Usufructuary becomes the owner of the things in

usufruct such as a sum of money or a quantity of
liquids or grain. Grantor becomes merely a
CREDITOR entitled to the return of their value or of
things of the same quantity and quality.
OBLIGATIONS OF THE USUFRUCTUARY:

 1) 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;

 (2) To give security[ personal bond,

pledge, or mortgage], binding himself to
fulfill the obligations imposed upon him in
accordance with this Chapter.
 Exemptions of Usufructuary:

 1. When the owner waives;

 2) where the title constituting the usufruct
exempts the usufructuary; and
 3) where the usufructuary asks to be relieved
from these obligations and no one will be
injured.
LIABILITY FOR ORDINARY REPAIRS:
Art. 592. The usufructuary is obliged to
make the ordinary repairs needed by the
thing given in usufruct.

LIABILITY FOR EXTRA-ORDINARY

REPAIRS:
Art. 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.
EASEMENTS AND SERVITUDES:

Characteristics of Easements:

1. It is a real right; 2) Can be imposed only

on the property of another, never on one’s
own property; 3) Produces limitation on
ownership, but ownership of servient estate
is unimpaired; 4) It is inseparable from the
tenements to which it is actively or passively
attached; 5) Exists only between
neighboring tenements.
KINDS OF:

 Continuous and Discontinuous:

 1. The distinction refers only to the EXERCISE

of the servitude and not THE ESSENCE,
because servitude exist continuously, whether it
is being used or not e.g. right of aqueduct, right
to support a beam on another’s wall.

 2. Discontinuous Easements e.g. right of way,

the very exercise of the servitude depends upon
the act of man in passing over another’s
property.
POSITIVE AND NEGATIVE EASEMENTS:

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 (ALTIUS NON TOLLENDI)
EASEMENT OF LIGHT AND VIEW:

When “positive”?

Positive- When opening is made on

another’s wall, or on a party wall, the
servitude acquired is POSITIVE, because the
owner or owners of such wall permits the
encumbrance to burden his or their wall.
When “negative”?

 Negative- when the openings are made in

one’s own wall [ when a person makes
openings on his own wall to admit light below
the ceiling joists [any of the parallel beams of
wood, metal, or concrete that support a floor,
roof, or ceiling ], and he acquires a servitude to
admit such light, the servitude is a negative one-
because it imposes upon the owner of the
adjacent estate the obligation NOT TO
CONSTRUCT on his land in such manner as
to obstruct the light.]
Easements are indivisible:

 If the servient estate is partitioned, the

servitude continues upon the portions upon
which it was originally exercised.

 If the dominant estate is divided into parts,

there arise as many new dominant
tenements as there are parts, each owner
exercising the rights of the owner of a
dominant tenement.
Easements are established either by law
or by the will of the owners.

NO JUDICIAL EASEMENT:

Courts cannot create easement. They can

only declare the existence of one, if it exists,
but cannot constitute it when none existed
before. They may only apply the law
providing for legal easements, or declare the
existence of those created by the will of the
owners.
. Continuous and apparent easements are
acquired either by virtue of a title or by
prescription of ten years.

TITLE means the juridical acts which gives

rise to the servitude e.g. law, donation,
contracts, and wills.
PRESCRIPTION:

Special Case of Prescription (10 years). It

DOES NOT REQUIRE good faith or just title.
The general rules for acquisitive prescription
of ownership and other real rights do not
apply to it. BUT ADVERSE POSSESSION or
EXERCISE OF THE EASEMENT must be
present.
HOW TO COMPUTE PRESCRIPTION:
POSITIVE EASEMENTS:

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
NEGATIVE EASEMENTS:

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. E.G. prohibition to build a
building of higher elevation.
CAN A RIGHT OF WAY BE ACQUIRED BY
PRESCRIPTION?

NO.

1. Being an apparent but discontinuous

easement, it cannot be acquired by
prescription.
BOGO-MEDELLIN MILLING CO., INC.,
petitioner, vs. COURT OF APPEALS AND
HEIRS OF MAGDALENO VALDEZ SR.,
respondents.

“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.”
“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.”
EASEMENT OF RIGHT OF WAY:
Requisites:
1.Dominant estate is surrounded by other immovables
and has no adequate outlet to a public hightway.
2. After payment of the proper indemnity
3. Isolation was not due to acts of the proprietor of the
dominant estate
4. 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 [ e.g. hence,
subject to the limitation that the usefulness of the
servient tenement to its owner is not impaired]
 REMIGIO O. RAMOS, SR., petitioner, vs.
GATCHALIAN REALTY, INC., EDUARDO
ASPREC, ENELDA ASPREC, ERNESTO
ASPREC, and COURT OF APPEALS,
respondents.[ G.R. No. 75905 October 12,
1987]3rd Division

 ["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."]
CRITERION OF “LEAST PREJUDICE”

Art. 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.
Predominant criterion is “least prejudicial to
the servient estate” and not short distance [
e.g. as when there are constructions or walls
which can be avoided by a round-about way]
WIDTH OF EASEMENT OF RIGHT OF WAY:

Art. 651. The width of the easement of

right of way shall be that which is
sufficient for the needs of the dominant
estate, and may accordingly be changed
from time to time.
EASEMENT OF PARTY WALL:

 Co-ownership or Easement?

 Easement [ Manresa, De Diego, Castan, and Ricci];

Co-Ownership [ Sanchez Roman, Valverde, etc]

 This co-ownership is a special class in itself [ as

shown by the following: 1) co-ownership is indivisible
2) part pertaining to the co-owner can be materially
designated 3) rights of a co-owner greater than those
of an ordinary co-owner, such as with respect to
increasing the height of the wall] . This is a kind of
COMPULSORY KIND OF CO-OWNERSHIP.
It is a servitude because, in an ordinary co-
ownership [ none of the co-owners may do
anything on the common property for his own
exclusive benefit, but in a party wall, there is
no limitation upon the juridical action of the
owners].
EASEMENT OF LIGHT AND VIEW:

Art. 667. No part-owner may, without the

consent of the others, open through the
party wall any window or aperture of any
kind. (580) Note: [ Co-owner can close,
UNLESS a sufficient time for prescription has
elapsed.]
 Two kinds of Easements:

1. Easement of Light “jus luminum” [ e.g.

Art. 669. When the distances in Article 670
are not observed, the owner of a wall which
is not 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 joist or immediately under the
ceiling, and of the size of thirty centimeters
square, and, in every case, with an iron
grating imbedded in the wall and with a wire
screen]
2. Easement of View “servidumbre
prospectus” e.g. as in the case of full or
regular windows overlooking adjoining
estate. “altius non tollendi”- easement not to
build higher for the purpose of obstruction.
 REGULATORY OPENINGS:
 Art. 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 two meters 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 sixty
centimeters.
 The nonobservance of these distances does
NUISANCE:

A nuisance is any act, omission, establishment,

business, condition of property, or anything else
which:

 (1) Injures or endangers the health or safety of

others; or
 (2) Annoys or offends the senses; or
 (3) Shocks, defies or disregards decency or
morality; or
 (4) Obstructs or interferes with the free passage
of any public highway or street, or any body of
water; or
 (5) Hinders or impairs the use of property.
PUBLIC NUISANCE:

A public nuisance affects a community or

neighborhood or any considerable
number of persons, although the extent of
the annoyance, danger or damage upon
individuals may be unequal.

PRIVATE NUISANCE:

 A private nuisance is one that is not

included in the foregoing definition.
 Doctrine of Attractive Nuisance:

 Dangerous instrumentality or appliance

which is likely to attract children at play.
 One who maintains on his estate or premises
an attractive nuisance without exercising due
care to prevent children from playing
therewith or resorting thereto, is liable to a
child of tender years who is injured thereby,
even if the child is technically a trespasser in
the premises.
Hidalgo Enterprises Inc. vs. Guillermo Balandan
et.al. G.R. No. L-3422 June 13, 1952

“Nature has created streams, lakes and pools

which attract children. Lurking in their waters is
always the danger of drowning. Against this
danger children are early instructed so that they
are sufficiently presumed to know the danger;
and if the owner of 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
because of having created an `attractive
nuisance.”
`Estate of Gregoria Francisco et.al. vs. Court of
Appeals G.R. No. 95279 July 26, 1991
Respondents can not seek cover under the
general welfare clause authorizing the
abatement of nuisances without judicial
proceedings. That tenet applies to a
nuisance per se, or one which affects the
immediate safety of persons and property
and may be summarily abated under the
undefined law of necessity (Monteverde v.
Generoso, 52 Phil. 123 [1982]). The storage
of copra in the quonset building is a
legitimate business. By its nature, it can not
be said to be injurious to rights of property,
of health or of comfort of the community. If it
be a nuisance per accidens it may be so
proven in a hearing conducted for that
MODES OF ACQUIRING OWNERSHIP:

 Art. 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 testate and intestate
succession, and in consequence of
certain contracts, by tradition.
They may also be acquired by means of
prescription.
MODE AND TITLE:

Mode is the specific cause which produces

dominion and other real rights as a result of
the co-existence of special status of things,
capacity and intention of persons and
fulfillment of the requisites of law.
Title is every juridical rights which gives a
means to the acquisition of real rights but
which in itself is insufficient.
Illustration:

Title is the remote cause, and mode the

proximate cause of the acquisition.

e.g. Contract of sale is the title, tradition is the

mode.
Ownership is not transferred by contract of
sale but by tradition
Classification of Donations:

Simple- cause is pure liberality

Remuneratory ( first kind)- to reward past
services e.g. donation who saved life of his
son)
Remuneratory (second kind)- to reward future
services
Onerous- there are burdens, charges, or
future service. This is govern by the rules of
contracts.
EFFECT OF ILLEGAL OR IMPOSSIBLE
CONDITIONS
Art. 727. Illegal or impossible conditions
in simple and remuneratory donations
shall be considered as not imposed. (
THIS ONLY APPLIES IF THE DONATION IS
PURELY GRATUITOUS)
FOR ONEROUS DONATIONS, THE RULE IN
OBLIGATIONS AND CONTRACTS APPLIES

 i.e. Rule in contracts [ which is applicable in a

case of “onerous donation”]:

 Art. 1183. Impossible conditions, those contrary

to good customs or public policy and those
prohibited by law shall annul the obligation
which depends upon them. If the obligation is
divisible, that part thereof which is not affected
by the impossible or unlawful condition shall be
valid.
Validity of conditions in an “onerous donation”:
ROMAN CATHOLIC ARCHBISHOP OF MANILA
et.al. vs. COURT OF APPEALS G.R. No.
77425 June 19, 1991

The deed of donation allegedly provides that

the donee shall not dispose or sell the property
within a period of one hundred (100) years from
the execution of the deed of donation, otherwise
a violation of such condition would render ipso
facto null and void the deed of donation and the
property would revert to the estate of the
donors.
HELD:

The cause of action of private respondents is

based on the alleged breach by petitioners of
the resolutory condition in the deed of
donation that the property donated should
not be sold within a period of one hundred
(100) years from the date of execution of the
deed of donation. Said condition, in our
opinion, constitutes an undue restriction on
the rights arising from ownership of
petitioners and is, therefore, contrary to
public policy.
DONATION MORTIS CAUSA:

Art. 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.
Austria-Magat vs. Hon. Court of Appeals G.R.
No. 106755 February 1, 2002 [ INTER-
VIVOS DONATION]
Deed of Donation provides:

Ibinibigay ko at ipinagkakaloob ng ganap at

hindi mababawi sa naulit na apat na anak ko
at sa kanilang mga tagapagmana, ang aking
lupang residential o tirahan sampu ng aking
bahay nakatirik doon xxx. (emphasis
supplied)
This is a clear expression of the irrevocability
of the conveyance. The irrevocability of the
donation is a characteristic of a donation
inter vivos. By the words “hindi mababawi”,
the donor expressly renounced the right to
freely dispose of the house and lot in
question. The right to dispose of a property is
a right essential to full ownership. Hence,
ownership of the house and lot was already
with the donees even during the donor’s
lifetime.
On the issue of effect of prohibition to alienate:

“On the other hand, the prohibition to

encumber, alienate or sell the property during
the lifetime of the donor is a recognition of
the ownership over the house and lot in issue
of the donees for only in the concept of an
owner can one encumber or dispose a
property.”
CHARACTERISTICS OF A MORTIS CAUSA DONATION:

 Bonsato vs. Court of Appeals [ G.R. No. L-6600 July 30,

1954 ], the characteristics of donation mortis causa are
as follows:

 (1) It conveys no title or ownership to the

transferee before the death of the transferor; or, what
amounts to the same thing, that the transferor should
retain the ownership (full or naked) and control of the
property while alive;
 (2) That before his death, the transfer should be
revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a
reserved power in the donor to dispose of the properties
conveyed;
 (3) That the transfer should be void if the transferor
should survive the transferee.
PERFECTION OF DONATION:

Art. 734. The donation is perfected from

the moment the donor knows of the
acceptance by the donee.
PAJARILLO et.al. vs. INTERMEDIATE
APPELLATE COURT G.R. No. 72908 August
11, 1989

FACTS:

Donation that is involved is that from a mother

to a daughter.

Donation was accepted by Salud Suterio in a

separate public instrument, but the acceptance
WAS NOT NOTED in both instruments,
meaning, the extra-judicial partition [ where the
donation was made] and in the instrument of
acceptance, as required by the Civil Code.
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 is 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. 13 Given this
significant evidence, the Court cannot in
conscience declare the donation ineffective
because there is no notation in the
extrajudicial settlement of the donee's
acceptance. That would be placing too much
stress on mere form over substance.
DONATION OF A MOVABLE:

Art. 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
DONATION OF REAL ESTATE:

Art. 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
Quilala vs. Gliceria Alcantara et.al. G.R. No.
132681 December 3, 2001

FACTS:

The acknowledgement only contains the name of

the donor to be the only one who appeared
before the Notary Public. There was no mention
of the donee. But in the Deed of Donation itself,
there appears a stipulation that the “donee
hereby receives and accepts the gift and
donation made in her favor by the donor….”
HELD:

In the same vein, the lack of an

acknowledgment by the donee before the notary
public does not also render the donation null
and void. The instrument should be treated in
its entirety. It cannot be considered a private
document in part and a public document in
another part. The fact that it was acknowledged
before a notary public converts the deed of
donation in its entirety a public instrument. The
fact that the donee was not mentioned by
the notary public in the acknowledgment is
of no moment.
VOID DONATION may be basis for title through
ACQUISITIVE PRESCRIPTION

CALICDAN vs. CENDANA G.R. NO. 155080

FEBRUARY 5, 2004

FACTS:

The donation involved a 760 sq.m. parcel of land in

Mangaldan, Pangasinan executed by Fermina Calicdan (
in 1947) in favor of Silverio Cendana. This is a suit for
recovery instituted by Soledad Calicdan, one of the
children of Fermina.

The donation was found to be the exclusive property of

Fermina’s husband, Sixto, being an inheritance from the
latter’s parents.
HELD:

Although the donation is void for having been

executed by one who is not the owner,
considering that it was established that
respondent Silverio Cendana has been in
possession of the land for 45 years already
he has acquired title to it by acquisitive
prescription.
Art. 764. The donation shall 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.
In this case, the property donated shall be
returned to the donor, the alienations made
by the donee and the mortgages imposed
thereon by him being void, with the
limitations established, with regard to third
persons, by the Mortgage Law and the Land
Registration Laws.
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
 ROMAN CATHOLIC ARCHBISHOP OF MANILA et.al. vs.
COURT OF APPEALS G.R. No. 77425 June 19, 1991
HELD:

Although it is true that under Article 764 of the Civil Code

an action for the revocation of a donation must be brought
within four (4) years from the non-compliance of the
conditions of the donation, the same is not applicable in
the case at bar. The deed of donation involved herein
expressly provides for automatic reversion of the
property donated in case of violation of the condition
therein, hence a judicial declaration revoking the
same is not necessary.

When a deed of donation, as in this case, expressly

provides for automatic revocation and reversion of the
property donated, the rules on contract and the general
rules on prescription should apply, and not Article 764 of
the Civil Code.
PRESCRIPTIVE PERIOD TO FILE ACTION
TO REDUCE ON THE GROUND OF
IMPAIRMENT OF LEGITIME
“Under Article 1144 of the Civil Code, actions
upon an obligation created by law must be
brought within ten years from the time the
right of action accrues. Thus, the ten-year
prescriptive period applies to the
obligation to reduce inofficious
donations, required under Article 771 of
the Civil Code, to the extent that they
impair the legitime of compulsory heirs.”
( Eloy Imperial vs. CA et.al. GR.112483 Oct.
8, 1999
From when shall the ten-year period be
reckoned? The case of Mateo vs. Lagua, 29
SCRA 864, which involved the reduction for
inofficiousness of a donation propter nuptias,
recognized that the cause of action to
enforce a legitime accrues upon the death of
the donor-decedent. Clearly so, since it is
only then that the net estate may be
ascertained and on which basis, the
legitimes may be determined.