iv. Rights of Co-owners
Art. 493. Each co-owner shall have the full ownership of his Undivided portion
part and of the fruits and benefits pertaining thereto, and he
may therefore alienate, assign or mort- gage it, and even
substitute another person in its enjoyment, except when
personal rights are involved. But the effect of the alienation
or the mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in the
division upon the termination of the co-ownership. (399)
Rights of each co-owner.
Under Art 493
(a) He shall have full ownership of his part, that is, his
undivided interest or share in the common property;
(b) He shall have full ownership of the fruits and ben- efits
pertaining thereto;
(c) He may alienate, assign or mortgage his ideal interest
or share independently of the other co-owners; and
(d) He may even substitute another person in the
enjoyment of his part, except when personal rights are
involved.
 Before a property owned in common is actually
partitioned, all that the co-owner has is an ideal or
abstract quota or proportionate share in the entire
property. (Engreso v. De La Cruz)
 A vendee with knowledge that the subject property
was, at one time, co-owned by the vendor and other
persons, relying on the vendor’s word alone that he
was the sole owner of the property, cannot rightfully
claim that he is a buyer in good faith.
o The honesty of intention that constitutes
good faith implies freedom from knowledge
of circumstances that ought to put a prudent
person on inquiry. (Aromin v. Floresca)
Legal rights of redemption
 A co-owner is given the legal right of redemption in
case the shares of all the other co- owners or any of
them are sold to a third person.1 The share of a co-
owner may be attached. (Cadag v. Trinanes)
 Redemption by a co-owner does not terminate the co-
ownership nor give him title to the entire property
subject of the co-ownership. (Cruz v. Leis)
Renunciation of interest
 A co-owner may exempt himself from the obligation to
contribute to the expenses of preservation of the thing
or right owned in common and to the taxes by
renouncing so much of his interest as may be
equivalent to his share of the expenses and taxes.
(Art. 488; see Arts. 485, 486, 492, 494.)
1
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.
Sale or mortgage of common property.
 Even while an estate remains undivided, a co-owner
has the absolute and full ownership of his undivided
interest in the co-owned property and is, therefore,
free to dispose of his pro indiviso share and of the
fruits and other benefits arising from that share
o BUT the transferee does not acquire any
specific or determinate physical portion of
the whole, his right being limited to the
portion which may be alloted to him upon the
partition of the property.
 Article 533 likewise recognizes the right of an heir to
dispose of his share in the inheritance subject to the
result of any pending administration. (Teves de
Jakosalem v. Rafols; Acebedo v. Abesamis)
o As a mere part owner, he cannot alienate or
mortgage the shares of the other co-owners,
for “no one can give what he does not have.’’
So, the mortgage of the inherited property is
not binding against the co-heirs who never
benefited. (Nufable v. Nufable)
 Where there are two or more heirs, the whole estate
of the decedent is, before partition, owned in common
by such heirs. (Art. 1078.)
Definite portion
The fact that a deed of sale appears to convey a definite or
segregated portion of the property under co-ownership that is
still undivided does not per se render the sale a nullity.
o The sale is valid subject only to the condition that the
interests acquired by the vendee must be limited to
the part that may be assigned to the co-owner-vendor
in the division upon the termination of the co-
ownership. (Mercado v. Viardo)
o It is a well-established principle that the
binding force of a contract must be
recognized as far as it is legally possible to
do so. (Lopez v. Vda. de Cuaycong)
o In other words, the sale affects only his
proportionate or abstract share in the
property owned in common, subject to the
results of the partition, but not those of the
other co-owners who did not consent to the
sale. (Bailon-Casilao v. CA)
 There may be a valid sale of a definite portion of the
property co-owned even before actual partition where
the rule of estoppel applies.
o Thus, in a case, where the co-owner as
vendor pointed out the location and even
indicated the boundaries of the portion of a
particular land he was selling without
objection, protest or complaint by the other
co-owners, but on the contrary acquiesced in
and tolerated such alienation and the
occupation of said portion, it was held that a
factual partition or termination of the co-
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)
 ownership, although partial, was created and
barred not only the vendor but also his heirs
from asserting as against the vendee any
right or title in derogation of the deed of sale
executed by the said vendor. (Pamplona v.
Moreto)
Whole property
 Even if a co-owner sells the whole property as his
own, or without the consent of the other co-owners,
the sale is valid only insofar as his ideal quota is
concerned unless the sale is authorized by the other
co-owners. (Barretto v. CA)
 Since a co-owner is entitled to sell his undivided
share, a sale of the entire property by one co-owner
will only transfer the rights of said co-owner to the
buyer, thereby making the buyer a co-owner of the
property. (Del Campo v. CA; Tomas Claudio Memorial
College, Inc. v. CA)
 The appropriate recourse of co-owners in cases
where their consent was not secured in a sale of the
entire property as well as in a sale merely of the
undivided share of a co-owner is an action for partition
under Rule 69 RoC
 Neither recovery of possession nor restitution can be
granted since the buyer is a legitimate proprietor and
possessor in joint ownership of the common property.
(Bailon-Casilao v. CA) But the transferee gets only
what would correspond to his transferor in the
partition of the thing owned in common. (Paulmitan v.
CA)
o This follows the well-established principle
that the binding force of a contract must be
recognized as far as it is legally possible to
do so — quando res non valet ut ago, valent
quantum valere potest — the disposition
affects only the seller-co-owner’s share pro
indiviso. (Aromin v. Floresca)
Specific property
 In a case, an heir who owned 1/2 undivided share in
two parcels of land sold one of the lots with- out giving
to his co-heir the latter’s share of proceeds.
 Held: Inasmuch as the heir in effect, waived his rights
over 1/2 of the remaining lot when he sold and
appropriated solely as his own the entire proceeds of
the sale, law and equity dictate that the remaining lot
should belong to his co-heir. (Imperial v. CA)
ILLUSTRATIVE CASE:
Co-owner claims that his agreement cancelling his lease of his half- interest
cannot take effect if the other co-owner does not also cancel his lease.
Facts: TC and AC, brothers and co-owners of a fishpond in equal shares, leased
it to AT who paid in advance the year rental in the amount of P5,000. In the
meantime, TC died. Then AC and AT agreed to set aside the lease upon the
return to AT of P2,500 each by AC and FC, widow of TC. FC refused to sign the
agree- ment to annul the lease. AC did not pay AT the amount of P2,500.
Issue: Can AC invoke his own failure to obtain the signature of FC to elude his
obligation to refund the P2,500?
Held: No. AC, as co-owner, could validly lease his half-inter- est to AT
independently of TC and in case the latter also leased his other half-interest to
AT, AC could cancel his lease agreement. If a lease could be entered into
partially by a co-owner insofar as his interest is concerned, then, he can also
cancel his own lease independently of the other co-owner. Therefore, the
consent of FC is not essential for the cancellation of the lease of AC’s one-half
undivided share in the fishpond to AT. AC is liable on his express undertaking to
refund the advance rental paid to him. (Vda. de Castro v. Atienza, 53 SCRA 264
[1973].)
Where personal rights are involved.
 A co-owner may substitute another in the enjoyment
of his undivided interest in the co-ownership except
when personal rights are involved.
 The term “personal right’’ is used in Article 493 in its
real meaning and not in its legal or technical sense as
the opposite of real right.
o It means a right which cannot be transferred
because it affects the personal relations of
the co-owners with one another. T
o hus, in the co-ownership of a house
belonging to the children of the deceased
owner and used by them as family
residence, a co-owner should not be allowed
without the consent of the others, to
substitute a complete stranger in the
common use of the house.
 A co-owner may lose his personal right to others, as
by pres- cription thereof by a co-owner. (Consignado
v. CA; Gapacan v. Omipet)
v. Special rule on marital properties (NCC 90)
Art. 90. The provisions on co-ownership shall apply to the
absolute community of property between the spouses in all
matters not provided for in this Chapter. (n)
 The law provides for the property regime in case of
common-law relationships or void marriages. (See
Arts. 147 and 148, FC).
 Valdez vs. RTC of QC, et al.,  the property
relationship in void marriages ab initio is co-ownership
and if ever there is a declaration of nullity of a void
marriage, even if based on psychological incapacity,
the dissolution of the properties or distribution shall be
based on the law on co-ownership where the parties
shall share and share alike.
 BUT in Agapay vs. CA  if the marriage is void, it
does not follow that they are always governed by the
rule on co-ownership.
o SC laid down the rule that for co-ownership
to govern them, there must be proof of actual
material contribution, otherwise, if there is no
such proof, then, the spouse in that void
marriage who cannot show how much he
contributed would receive no share out of the
properties acquired during their coverture.
o Court: upon the dissolution of their
relationship, they shall divide their properties
in proportion to their contributions. So that, if
in a void marriage, B can prove that she
contributed 30% of the purchase price of a
property, then, it is to the extent of 30% of
such property that she could get as her
share when such relationship is terminated
or dissolved.
 Agapay vs. CA has to be distinguished from the case
of Uy vs. CA.
o In such case, the SC said that even if one of
the parties in a common-law cohabitation did
not contribute materially in the acquisition of
 the properties during such coverture, still
such party is entitled to a share of one-half
(1/2) of the properties upon the termination
of the same.
o What is important is that, such party
contributed spiritually in the acquisition of
such properties. Such contributions may
come in the form of taking care of the
children, attending to the needs of the family.
o The distinction lies in the fact that in Agapay
the marriage was void as the man had an
existing marriage; while in Uy vs. CA, their
cohabitation was free, that had they gotten
married, the same would have been valid. In
Agapay, they got married, but since there
was legal impediment on the part of the man,
the marriage was void.
 The rule has to be so because the law abhors
cohabitation in violation of the marriage vows. It
frowns upon immorality. It protects the legitimate
family, for if the other party in a cohabitation like in
Agapay were allowed to get one-half of the properties
upon the termination of such relationship even without
any material contribution, then, it would countenance
immorality aside from causing undue prejudice to the
legitimate family.
vi. Extinguishment of co-ownership
Art. 494. No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time the
partition of the thing owned in common, insofar as his share
is concerned.
Nevertheless, an agreement to keep the thing undivided for
a certain period of time, not exceeding ten years, shall be
valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which
shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by
law.
No prescription shall run in favor of a co-owner or co- heir
against his co-owners or co-heirs so long as he expressly or
impliedly recognizes the co-ownership. (400a)
Termination of co-ownership.
(1) By the consolidation or merger in only one of the co-
owners of all the interests of the others;
(2) By the destruction or loss of the property co-owned;
(3) By acquisitive prescription in favor of a third person
(Art. 1106.) or a co-owner who repudiates the co-
ownership (Art. 494, last par.);
(4) By the partition, judicial or extrajudicial (Art. 496.), of
the respective undivided shares of the co-owners (3
Manresa 508.);
(5) By the termination of the period agreed upon or
imposed by the donor or testator, or of the period
allowed by law (Art. 494, pars. 2, 3.); and
(6) By the sale by the co-owners of the thing to a third
person and the distribution of its proceeds among
them. (see Art. 498.)
In connection with (4), it has been held that the actual
possession and enjoyment of several portions of the common
property by some of the co-owners does not of itself provide
proof that the property has already been partitioned and co-
ownership terminated.
 A co-owner cannot, without the conformity of the other
co-owners or a judicial decree of partition, adjudicate
to himself in fee simple a determinate portion of the
property owned in common as his share therein, to
the exclusion of the other co-owners. (Del Banco v.
IAC)
 There is juridical dissolution of co- ownership when
the thing is sold, either publicly or privately, to a third
person. (Republic v. Baltazar-Ramirez)
Possession of a co-owner similar to that of a trustee.
 A co-ownership is a form of a trust, with each owner
being a trustee for each other. A trust relation inheres
in a co-ownership. (Mallilin, Jr. v. Castillo)
 General Rule: no one of the co-owners may acquire
exclusive ownership of the common property through
prescription for possession by the trustee alone is not
deemed adverse to the rest (Castrillo v. CA) because
a co-owner is, after all, entitled to the possession of
the property.
 In a co-ownership, the act of one benefits all the co-
owners. The only instance in which the possession of
a trustee may be deemed adverse to the cestui que
trust is when the former makes an open repudiation of
the trust by unequivocal acts made known to the
latter.
It has been held that the trustee may claim title by prescription
founded on adverse possession, where it appears that:
(1) He had performed unequivocal acts of repudiation of
the co-ownership amounting to an ouster of the cestui
que trust or the other co-owners;
(2) Such positive acts of repudiation have been made
known to the cestui que trust or the other co-owners;
(3) The evidence thereon is clear, complete and
conclusive in order to establish prescription without
any shadow of doubt; and
(4) His possession is open, continuous, exclusive, and
notorious. (Adille v. CA; Vda. de Arceo v. CA)
Positive acts of repudiation.
Acts which may be adverse to strangers may not be sufficiently
adverse to the cestui que trust or other co-owners.
(1) A mere silent possession of the trustee unaccompanied
with acts amounting to an ouster of the cestui que trust cannot
be construed as an adverse possession.
 Mere receipt of rents, fruits, or profits for the
properties, planting of trees thereon, and erecting
fences and buildings adapted for the cultivation of the
land held in trust, are not equivalent to unequivocal
acts of ouster of the cestui que trust.
 Thus, the sole fact of a co-owner having declared the
lands in question in his name for tax purposes nor the
payment of land taxes, constitutes no such
unequivocal act of repudiation amounting to an ouster
of the other co-owner and cannot constitute adverse
possession as basis for title by prescription.
 In a case, however, where F, one of the heirs took
possession of the lot in question after the death in
1935 of his father, tilling and cultivating the land,
 introducing improvements, and enjoying the produce
thereof, while the other children never possessed the
lot, much less asserted their claim thereto until 1999
when they filed the complaint for partition, it was held
that the statutory period of prescription commenced
not in 1935 but in 1960 when F, who had neither title
nor good faith secured a tax declaration in his name,
the date when it can be said he adversely claimed
ownership of the lot and the other children were also
deemed to have been aware of the adverse claim.
(Heirs of F. Restar vs. Heirs of D.R. Cichon)
(2) It has been held that when a co-owner of the property in
question executed a deed of partition and on the strength
thereof obtained the cancellation of the title in the name of their
predecessor and the issuance of a new one wherein he
appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-owners
over their shares, the statute of limitations started to run from
such issuance for the purpose of the action instituted by the
latter seeking a declaration of the existence of the co-
ownership and of their rights thereunder.
 As the certificate of title was notice to the whole world
of his exclusive title to the land, the issuance of the
new title constituted an open and clear repudiation of
the trust or co-ownership and the lapse of ten years of
adverse possession (Art. 1134.) was sufficient to vest
title in the co-owner by prescription. (Delima v. CA)
 But mere refusal to accede to a partition without
specifying the grounds for such refusal, cannot be
considered as notice to the other co-owners of the
occupant’s claim of title in himself in repudiation of the
co-ownership. (Heirs of S. Maningding v. CA)
 While it is true that registration under the Torrens
system is constructive notice of title, the Torrens title
does not furnish shield for fraud.
o Thus, where one registered the property in
question in his name in fraud of his co-heirs,
prescription can only be deemed to have
commenced from the time the latter
discovers the act of defraudation. (Adille v.
CA; Mariategui v. CA)
(3) Examples of specific acts which are considered as acts of
repudiation:
Prescription in favor of or against a co-owner.
(a) Filing by a trustee of an action in court against the
trustor to quiet title to property, or for recovery of
owner- ship thereof, held in possession by the former,
may constitute an act of repudiation of the trust
reposed on him by the latter.
(b) The issuance of the certificate of title would constitute
an open and clear repudiation of any trust, and the
lapse of more than 20 years, open and adverse
possession as owner would certainly suffice to vest
title by prescription.
(c) An action for the reconveyance of land based on
implied or constructive trust prescribes within 10 years
and it is from the date of the issuance of such title that
the effective assertion of adverse title for purposes of
the statute of limitation is counted.
(d) The prescriptive period may only be counted from the
time petitioners repudiated the trust relation in 1955
upon the filing of the complaint for recovery of
possession against private respondents contained in
their amended answer wherein they asserted absolute
ownership of the disputed realty by reason of the
continuous and adverse possession of the same is
well within the 10-year prescriptive period.
(e) There is clear repudiation of a trust when one who is
an apparent administrator of property causes the
cancellation of the title thereto in the name of the
apparent beneficiaries and gets a new certificate of
title in his own name.
(f) It is only when the defendants, alleged co-owners of
the property in question, executed a deed of partition
and on the strength thereof obtained the cancellation
of the title in the name of their predecessor and the
issuance of a new one wherein they appear as the
new owners of a definite area each, thereby in effect
denying or repudiating the ownership of one of the
plaintiffs over his alleged share in the entire lot, that
the statute of limitations started to run for the
purposes of the action instituted by the latter seeking
a declaration of the existence of the co-ownership and
of their rights thereunder. (Pang ̃ an v. CA; Salvador v.
CA)
1. Destruction of thing
 A state of co-ownership exists only because there is
unity of the object or property and plurality of subjects.
 Note that a co-ownership is only a state of fact which
exists so long as the property remains materially
undivided.
 Hence, the moment that the state of fact no longer
exists because the object of the co-ownership is either
destroyed or lost, the co-ownership also ceases.
2. Merger of all interests in one person
 Merger, as a mode of terminating the co-ownership,
takes place when all the interests in a co-ownership
are consolidated in one person.
 This may happen, for example, when the shares of
the other co-owners are acquired by one co-owner
either by way of purchase or through the exercise of
the right of legal redemption.
3. Acquisitive prescription
 General Rule: prescription does not run in favor of or
against a co-owner or co-heir
o Reason: The possession of the co-owner or
co-heir is ordinarily not adverse to the others
but, in fact, beneficial to all of them. He
recognizes, expressly or impliedly, the co-
ownership. Thus, an action to compel
partition may be filed at any time by any of
the co-owners against the actual possessor.
 The positive mandate of Article 494 conferring
imprescriptibility to actions of a co-owner or co-heir
against his co-owners or co-heirs should preempt and
prevail over all abstract arguments based only on
equity which should be applied only in the absence of,
and never against statutory law.
o Acquisitive prescription as laches which is
based on the doctrine of equity, cannot be
invoked to defeat justice. It cannot be set up
to resist the enforcement of an impriscriptible
legal right. (Generosa v. Prangan-Valera)
  Where, however, a co-owner or co-heir repudiates the plaintiff’s action has lapsed thru the statute of
co- ownership or co-heirship, prescription begins to limitations. (Tolentino v CA)
run from the time of repudiation.
o Thus, the imprescriptibility of the action to Acquisitive and extinctive prescriptions distinguished.
demand partition cannot be invoked when
one of the co-owners has claimed the
property as exclusive owner and possessed Acquisitive Prescription Extinctive Prescription
it for a period sufficient to acquire it by requires possession by a inaction of the owner out of
prescription. claimant who is not the possession or neglect of one
o In such case, the question involved is no owner with a right to bring his
longer one of mere partition but of action
ownership, and in consequence thereof, the applicable to ownership and applicable to all kinds of
action is similar to that of an action for the other real rights rights, whether real or
recovery of ownership of property. personal
o There must, however, be a clear repudiation vests ownership or other produces the extinction of
of co-ownership. real rights in the occupant rights or bars a right of
action
Art. 1106. By prescription, one acquires ownership and results in the acquisition of merely results in the loss of
other real rights through the lapse of time in the manner and ownership or other real a real or personal right, or
under the conditions laid down by law. rights in a person as well as bars the cause of action to
the loss of said ownership or enforce said right
real rights in another
In the same way, rights and actions are lost by prescription.
can be proven under the should be affirmatively
(1930a)
general issue without its pleaded and proved to bar
being affirmatively pleaded the action or claim of the
adverse party.
Kinds of prescription.
With respect to the last item, the defendant’s claim of
(1) Acquisitive prescription ownership operates as a denial of plaintiff’s title sufficient to
justify proof of adverse possession for the requisite period
o Art 1106 par 1 under the issue of ownership although acquisitive prescription
o It is the acquisition of ownership and other real rights was not expressly relied upon in his pleading. (Corporation de
(see Art. 712.) through possession of a thing in the PP. Agustinos Recoletos v. Crisostomo)
manner and under the conditions provided by law.
o It also goes under the name of “adverse possession’’ Essence of statute of limitations.
in common law, or a kind of possession which is in
opposition to the true title or real owner, commenced
without right but ripened into title by lapse of time.  It is the essence of statute of limitations that, whether
o This kind of prescription may be ordinary or the party had a right to the possession or not, if he
extraordinary depending on whether the property is entered under claim of such right and remained in
possessed in good faith and with just title for the time possession for the requisite period, the right of the
fixed by law (Art. 1117.); and party who had the better title is barred by that adverse
o As a mode of acquisition, prescription requires the possession. The right given by the statute of
existence of the following elements: limitations does not depend upon, and has no
o capacity of the claimant to acquire by necessary connection, with the validity of the claim
prescription; under which possession is held.
o a thing capable of acquisition by prescription;  The “just title’’ (Arts. 1129, 1131.) required for
o possession of the thing under certain acquisitive prescription to set in is not titulo verdadero
conditions; and y valido or such title which by itself is sufficient to
o lapse of time provided by law. (National transfer ownership without the necessity of letting the
Power Cor- poration v. Campos, Jr., 405 prescriptive period elapse but only titulo colorado or
SCRA 194 [2003].) such title where although there was a mode of trans-
ferring ownership, still something is wrong because
the grantor is not the owner.
(2) Extinctive prescription.
Rationale of prescription.
o Art 1106 par 2
o It is the loss or extinguishment of property rights or
actions through the possession by another of a thing  The doctrine of prescription is of purely statutory
for the period provided by law or through failure to origin. It is founded on grounds of public policy which
bring the necessary action to enforce one’s right requires for the peace of society, that juridical
within the period fixed by law. (see Art. 1139.) Another relations susceptible of doubt and which may give rise
name for this kind of prescription is limita- tion of to disputes, be fixed and established after the lapse of
actions. (Morales v. CFI) a determinate time so that ownership and other rights
 Where the plaintiff fails to go to court within the may be certain for those who have claim in them.
prescriptive period, he loses his cause, not really o It would be productive of great
because the defend- ant has acquired the former’s inconvenience, if not of great injustice, if
right by adverse possession, but because the parties were allowed to assert their rights at
such time as suited them when witnesses
 are dead or no longer available, or papers
are destroyed, or facts have become
obscure from the lapse of time or the
defective memory of witnesses, and
successful defense can no longer be made.
o Without a time limit within which a party may
enforce his claim, titles to property and other
rights will remain unstable for a long time
and wasteful litigations will be fostered.2
 Prescription is rightly regarded as a statute of repose.
Essentially, it protects the diligent and vigilant, not the
person who sleeps on his rights.
o By negligence, carelessness, or
abandonment, owners provided with the
most legitimate titles may be deprived and
dispossessed of their properties by usurpers
who, by lapse of time specified by law,
acquire the same by prescription.
o Similarly, one who has slept on his rights
when the law required him to act is
prevented from prejudicing the rights of
another who has placed reliance on his
inaction or silence.
o The law considers that the negligent party
has no right or has abandoned or waived his
right.
 It has been ruled, however, that “it is indeed the better
rule that courts, under the principle of equity, will not
be guided or bound strictly by the statute of limitations
or the doctrine of laches when to do so, manifest
wrong and injustice will result.’’ In such case, it is
better to resolve the issue or issues on the basic
merits of the case instead of applying the rule on
prescription.
Doctrine of laches.
In general sense, laches is failure or neglect for an
unreasonable and unexplained length of time, to do that which,
by exercising due diligence, one could or should have done
earlier. It is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party
entitled to assert it either has abandoned it or declined to
assert it. (Tijam v. Sibong-hanoy)
(1) In determining whether delay in seeking to enforce a right
constitutes laches, the existence of confidential relationship
based upon, for instance, consanguinity (e.g., brothers or
sisters), is an important circumstance for consideration. Delay
in a situation where such circumstance exists, should not be as
strictly construed as where the parties are complete strangers
vis-a-vis each other. The doctrine of laches is not to be applied
mechanically as between near relatives.
(2) Where the delay in the assertion of a right, no matter how
long, is not unreasonable, the principle of laches finds no room
for application. Furthermore, the question of laches is
addressed to the sound discretion of the court.
2 With respect to the extinction of the State’s right to prosecute a crime after the
lapse of the statutory period for filing the criminal action, the reason is that:
statutes of limitations are construed as being acts of grace, and as surrendering
by the sover- eign of its right to prosecute, and they are considered as equivalent
to acts of amnesty. They serve, not only to bar prosecutions on aged and
untrustworthy evidence, but also to cut-off prosecution for crimes a reasonable
time after completion, when no further danger to society is contemplated from the
(3) Laches is a recourse in equity. It applies only in the ab-
sence of a statutory prescriptive period. A delay within the pre-
scriptive period is sanctioned by law and is not considered to
be a delay that would bar relief.
(4) Fundamentally, “laches’’ is an equitable doctrine; its
application is controlled by equitable considerations. It is the
better rule that courts, under the principle of equity, will not be
guided or bound strictly by the statute of limitations or the doc-
trine of laches when to do so, manifest wrong or injustice would
result.’’
Prescription distinguished from laches.
Laches is different from and applies independently of pre-
scription. It finds application even to imprescriptible actions.
Thus, while the action to annul a void or inexistent contract
does not prescribe (Art. 1410.), it may nonetheless be barred
by laches.
(1) Laches is concerned with the effect of delay, while
prescription is concerned with the fact of delay;
(2) Laches is principally a question of inequity of
permitting a claim to be enforced, this inequity being
founded on some subsequent change in the condition
or the relation of the par- ties, while prescription is a
question or matter of time;
(3) Laches is not statutory, while prescription is statutory;
(4) Laches applies in equity, while prescription applies at
law;
(5) Being a defense in equity, laches need not be
specifically pleaded. On its own initiative, a court may
consider it in order to prevent inequity. On the other
hand, prescription cannot be availed of unless it is
especially pleaded as an affirmative allegation; and
(6) Laches is not based on a fixed time, while prescription
is based on a fixed time.
Prescription, a matter of defense.
Prescription (extinctive) is a matter of defense. It cannot be
availed of unless it is especially pleaded as an affirmative
allegation. As in prescription, failure to raise the issue of laches
amounts to a waiver of such defense.
(1) Burden of proof.  The burden of proof is upon the party
laying claim to it and it must be proved or established with the
same degree of certainty as any essential allegation in the civil
action. The law requires one who asserts ownership by
adverse possession to prove the presence of the essential
elements of acquisi- tive prescription.
(2) Effect of the failure to plead prescription  Such waiver
constitutes waiver of the defense and cannot be raised for the
first time at the trial or on appeal. The general rule is that the
appellate court is not authorized to consider and resolve any
question not properly raised in the lower court. It would,
therefore, be error for the court to permit proof of prescription if
criminal activity. (People v. Sandiganbayan, 211 SCRA 241 [1992], citing 22 CJS
585.)
said defense is not alleged in the answer and the other party
has timely objected to the attempted proof thereof.
(3) Exceptions. — The issue of prescription is one involving
evidentiary matters requiring a full-blown trial on the merits and
cannot be determined in a mere motion to dismiss. However,
there are exceptions to this rule and one of them is when the
plaintiff’s complaint on its face or the evidence he presented
shows clearly that indeed the action has pre- scribed at the
time it was filed. In such case, the court may dis- miss the
complaint on ground of prescription when effectively pleaded in
a motion to dismiss, or motu proprio on this ground even
though the defendant does not present a motion for the
dismissal of the complaint or invoke the defense of
prescription.
If, before trial, a party has no means of knowing that
opponent’s claim has already lapsed, prescription as a defense
may be pleaded later as soon as the true nature of the claim is
dis- covered.
(4) Renunciation through acts. — While the defense of pre-
scription is deemed waived if not especially pleaded, it may be
tacitly renounced, through acts which imply the abandonment
of the right acquired. (Art. 1112.)
4. Partition or division
Right of a co-owner to demand partition.
 Partition is the division between two or more persons
of real or personal property which they own in
common so that each may enjoy and possess his sole
estate to the exclusion of and without interference
from the others.
o The policy of the law is not to favor co-
ownership because it is not conducive to the
development of the community property
particularly where it involves real estate.
 Article 494 grants to each co-owner the right to
demand at any time partition of the thing owned in
common, insofar as his share is concerned for “no co-
owner shall be obliged to remain in the co-
ownership.’’
 This implies that the action to demand partition is
imprescriptible or cannot be barred by laches, absent
a clear repudiation of the co-ownership by a co-owner
clearly communicated to the other co-owners.
Existence of the fact of co-ownership.
 Since partition presupposes that the thing to be
divided is owned in common and it is presumed
beforehand that the parties thereto admit the fact of
co-ownership, it is immaterial in whose name the
property is declared for taxation purposes. (Villamor v.
CA) A court cannot properly order the partition of a
property without first making a finding that co-
ownership exists.
3
Art. 870. The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void. (n)
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.
 The partition is merely a necessary incident of the co-
ownership, and absent any evidence to the contrary,
the partition is presumed to have been done in good
faith. (City of Mandaluyong v. Aguilar)
Exceptions to right to demand partition
(1) When the co-owners have agreed to keep the thing
undivided for a certain period of time, not exceeding
ten years;
- the term may extend for as many times as the co-
owners may stipulate provided that each
extension does not exceed ten years
(2) When the partition is prohibited by the donor or
testator for a certain period not exceeding twenty
years;3
- the wish of the donor or testator should be
respected but as it is against public policy to
allow property to remain undivided for all time, a
maximum period of 20 years is provided, which
period is deemed sufficient for the fulfillment of
the particular reasons of the donor or testator
(3) When the partition is prohibited by law (Art. 494.);
- there are cases of co-ownership created by law,
such as the community or conjugal property of
the husband and wife, family home, and party
walls and fences, where by reason of their origin
or juridical nature, partition is prohibited by law
(4) When partition would render the thing unserviceable
for the use for which it is intended (Art. 495.);
- the co-ownership may be terminated in
accordance with Article 498
(5) When another co-owner has possessed the property
as exclusive owner and for a period sufficient to
acquire it by prescription.
 Where the period stipulated for indivision exceeds ten
years, the stipulation is void only insofar as the
excess is concerned.
 If the co-ownership is subject to a resolutory
condition, the co-ownership shall be terminated upon
the fulfillment of the condition before ten years, or at
the end of ten years notwithstanding the nonfulfillment
of the condition.
 An agreement to continue the co-ownership within the
period permitted by law may be rescinded by the co-
owners.
ILLUSTRATIVE CASE:
Co-owners agreed to subdivide a parcel of land into small lots and then divide the
parcels among them.
Facts: A, B, and C, co-owners of a parcel of land, agreed to improve the property
by filling it and constructing roads thereon and then subdividing it into small lots
for sale. Subsequently, C brought this suit asking the court to order the partition
of the prop- erty. Among other things, C alleges that the contract entered into
was in violation of Article 494 of the Civil Code.
Issue: Is the contract valid?
Held: Yes. “The provisions of Article 494 of the Civil Code are not applicable. The
contract far from violating the legal provision that forbids a co-owner from being
obliged to remain a party to the community precisely has for its purpose and
object the dissolution of the co-ownership and of the community by selling the
parcel held in common and dividing the proceeds of the sale among the co-
owners.
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)
The obligation imposed in the contract to preserve the co-ownership until all the
lots shall have been sold, is a mere incident to the main object of dissolving the
co-ownership. By virtue of the document, the parties thereto practically and
substantially entered into a contract of partnership as the best and most
expedient means of eventually dissolving the co-ownership, and the life of said
partnership to end when the object of its creation shall have been attained.’’
(Tuason v. Tuason, 88 Phil. 428 [1951].)
Art. 496. Partition may be made by agreement be- tween
the parties or by judicial proceedings. Partition shall be
governed by the Rules of Court insofar as they are
consistent with this Code. (402)
Purpose and effect of partition.
An action for partition implies that the subject property is still
owned in common. (Republic v. Baltazar-Ramirez)
(1) Partition has for its purpose the separation, division and
assignment of the thing held in common among those to whom
it may belong. In other words, its purpose is to put an end to
co- ownership. Every act intended to put an end to indivision
among co-heirs is deemed to be a partition. (Art. 1082.) The
thing itself may be divided, or its value. (Art. 1079.)
(2) After partition, the portion belonging to each co-owner has
been identified and localized, so that co-ownership, in its real
sense, no longer exists. (Salatandal v. Retes) Its effect is to
vest in each a sole estate in specific property, giving to each
one a right to enjoy his estate without supervision or
interference from the others. (Noceda v. CA)
Action for partition.
(1) An action for partition may be seen to present
simultaneously two principal issues:
1. whether the plaintiff is indeed a co-owner; and
2. assuming he successfully hurdles the first issue, there
is the secondary issue of how the property is to be
divided, i.e., what portion should go to which co-
owner.
(2) Functionally, an action for partition may be seen to be at
once an action for declaration of co-ownership of the subject
property and for segregation and conveyance of a determinate
portion of the property involved.
o A co-owner can validly seek the partition of the
property in co-ownership and the conveyance to him
of his lawful share. He is not required to file another
action, separate and independent from that of partition
originally instituted. Public policy abhors multiplicity of
actions. (Roque v. IAC)
(3) Needless to state, an action for partition (see Art. 494.) will
not lie if the claimant has no rightful interest over the subject
property. (see Rules of Court, Rule 69, Sec. 1.) It would be
premature for a court to issue an order to divide a property until
4 An action for partition assumes that the parties are co-owners of the property
involved. If the defendant claims exclusive ownership, the action becomes one
for re- covery of property. (De La Cruz v. Court of Appeals, 412 SCRA 282
[2003].) A case for partition by X where Y set up the defense of sole dominium of
and unless it first makes a determination as to the existence of
co-ownership.4 (Catapusan v. CA)
o The issue of ownership or co-ownership must first be
resolved in order to effect a partition of properties.
(Reyes-De Leon v. Del Rosario)
Whether the action for partition is dismissed or partition and/or
accounting is decreed, the order is a final one and may be
appealed by any party aggrieved thereby; otherwise, it be-
comes final and executory. (Maglucot-Aw v. Maglucot)
How partition effected.
Partition, when proper (i.e., a co-ownership in fact exists and
partition not otherwise legally proscribed), may be effected
extrajudicially pursuant to an agreement or judicially by judicial
proceedings under Rule 69 of the Rules of Court. It may be
effected in consequence of a suit through a settlement
between the parties with the approval of a competent court.
(Ron v. Mojica)
(1) When judicial discretion is called upon to make up for the
lack of agreement between the parties, the courts must con-
sider and respect the interests of all the parties, and adopt that
form of partition nearest to absolute equity and most consonant
with reason and justice. (Government of the PH v. Abadilla)
(2) Where partition is held proper in the premises and ac-
counting is in order, the parties may, if they are able to agree,
make partition among themselves by proper instruments of
conveyance, and the court shall confirm the partition so agreed
upon by the parties. When the parties are unable to agree
upon the partition ordered by the court, it shall be effected for
the parties by the court with the assistance of not more than
three (3) commissioners. (De Mesa v. CA)
(3) A party cannot, in law and in good conscience, be al- lowed
to reap the fruits of a partition agreement or judgment and
repudiate what does not suit him. Questions of possession and
ownership over the property covered by the partition are
generally concluded by the partition and become a closed mat-
ter. (Borja De Torres v. Encarnacion)
(4) Under Article 1082 CC, “every act which is intended to put
an end to indivision among co-heirs and lega- tees or devisees
is deemed to be a partition although it should purport to be a
sale, an exchange, a compromise, or any other transaction.’’
(5) A court may not order partition of the estate of a decedent
in an action for quieting title. Under the law, partition of the
estate may only be effected: (a) by the heirs themselves
extraju- dicially, (b) by the court in an ordinary action for
partition or in the course of administration proceedings, (c) by
the testator him- self by an act inter vivos, or (d) by a third
person designated by the testator. (Alejandrino v. CA)
(6) Partition may be inferred from circumstances sufficiently
strong to support the presumption. Thus, after a long
possession in severalty, a partition either by deed or by
the property and an action by Y for quieting of title for the sole purpose of
claiming for himself exclusive ownership have identical causes of action and can,
therefore, can be the subject of res judicata. (Heirs of J. Gaudiene v. Court of
Appeals, 425 SCRA 295 [2004].)
proceedings in the probate court may be presumed. (Maglucot-
Aw v. Maglucot)

Rules governing partition.

Partition is governed primarily by the Civil Code and

suppletorily by the pertinent provisions of the Rules of Court.
The rules relating to judicial partition of real property are now
found in Rule 69 of the Rules of Court. An action for partition
and accounting under Rule 39 is in the nature of an action
quasi in rem. (Valmonte v. CA)

It has been held that the mere fact that the action filed by the
parties is for “Reconveyance and Damages’’ and “the
complaint does not specifically seek partition does not preclude
the court from considering partition as a remedy under Article
494 in view of the fact that the complaint [wherein plaintiffs
contend that they are pro-indiviso owners of the lot in question]
and the evidence shows that the relief granted by the said
article is available to the plaintiffs . . . on the ground of equity
and for the purpose of avoiding multiplicity of suits on the same
subject matter.’’ (Heirs of B. Infante v. CA)

Application of the Statute of Frauds.

The Statute of Frauds does not apply to partition because it is

not legally deemed a conveyance or a sale of property (see
Art. 1403[2, a].) resulting in change of ownership but simply a
seg- regation and designation of that part of the property which
be- longs to each of the co-owners. (Vda. de Espina v. Abaya)
Partition is, therefore, valid and enforceable although made
orally where no third persons are involved.

On general principle, independent and in spite of the Stat- ute

of Frauds, courts of equity have enforced oral partition when it
has been completely or partly performed. Thus, it has been
held or stated in a number of cases involving an oral partition
under which the parties went into possession, exercised acts of
ownership, or otherwise partly performed the partition agree-
ment, that equity will confirm such partition and in a proper
case, decree title in accordance with the possession in
severalty. They are estopped to question title to portion alloted
to another party. (Maglucot-Aw v. Maglucot)

Since registration serves as constructive notice to third

persons, an oral partition by the heirs is valid if no creditors are
affected. (Maestrado v. Court of Appeals, 122 SCAD 789, 327
SCRA 678 [2000].)