Professional Documents
Culture Documents
Property Syllabus Notes
Property Syllabus Notes
May a house built on rented land be the object of a Query: Suppose the properties referred to in
mortgage? ANS.: Yes, in a real mortgage (real estate paragraph 3 are temporarily removed, but there is an
mortgage). It may even be the subject of a chattel mortgage intention to replace them, should they be considered real or
provided two conditions are present; namely, that the personal property? ANS.: It is believed that they should be
parties to the contract so agree, and that no innocent third regarded as personal property inasmuch as the
party will be prejudiced. “incorporation” has ceased. The Partidas contained an
express provision making said property real, but in view of
Though the law says “constructions of all kinds the elimination in the Code of said provision, we may say
adhered to the soil,” it is understood that the attachment that same should no longer apply, despite a contrary
must be more or less permanent. (3 Manresa 18). A wall or a opinion expressed by a member of the Code Commission.
fence would be a good example of this kind of real property (Capistrano, 1 Civil Code, p. 338).
by incorporation. This is true even if the fence or wall is
built only of stones as long as there is an intent to Paragraph 4: Statues, reliefs, paintings or other
permanently annex the same. objects for use or ornamentation, placed in
buildings or on lands by the owner of the
Paragraph 2: Trees, plants, and growing fruits, immovable in such a manner that it reveals the
while they are attached to the land or form an intention to attach them permanently to the
integral part of an immovable; tenements;
Examples: A fixed statue in the garden of a house, a If the machine is still in the building, but is no
permanent painting on the ceiling, a picture embedded in longer used in the industry conducted therein, the machine
the concrete walls of a house, a rug or carpet fastened to the reverts to the condition of a chattel. Upon the other hand, if
floor, as in the case of wall to wall carpeting. still needed for the industry, but separated from the
tenement temporarily, the property continues to be
The objects must be placed by the owner of the immovable, inasmuch as paragraph 5 refers, not to real
immovable (buildings or lands) and not necessarily by the property by incorporation, but to real property by
owner of the object. Of course, the owner of the building or destination or purpose.
land may act thru his agent, or if he be insane, thru his duly
appointed guardian or through a lessee when there is an When is machinery attached to land or a
agreement that what the lessee attaches will become the tenement considered immovable? [ANS.: Par. 5,
property of the lessor. (See Valdez v. Altagracia, 225 U.S. Art. 415].
58). If placed by a mere tenant, the objects must remain Give the exception. [ANS.: When placed
chattels or personalty for the purposes of the Chattel on the land or tenement by a tenant.] (Davao
Mortgage Law. (Davao Sawmill v. Castillo, 61 Phil. 709). Sawmill v. Castillo, supra).
Give the exception to the exception.
If during the construction of my house, I request [ANS.: when the tenant had promised to leave the
my neighbor to keep in the meantime a painting (with machinery on the tenement at the end of the lease,
frame) which I own and my friend attaches said painting on or when he acted only as agent of the owner of the
his own wall, should the painting be regarded as real or land.]. (Valdez v. Central, supra).
personal property? ANS.: Personal, in view of the lack of
intent to attach permanently in my neighbor’s house. Note Paragraph 6: Animal houses, pigeon-houses,
the word “permanently” in paragraph No. 4. beehives, fish ponds or breeding places of similar
nature, in case their owner has placed them or
Paragraph 5: Machinery, receptacles, instruments preserves them with the intention to have them
or implements intended by the owner of the permanently attached to the land, and forming a
tenement for an industry or works which may be permanent part of it; the animals in these places are
carried on in a building or on a piece of land, and included;
which tend directly to meet the needs of the said
industry or works; The “houses” referred to here may already be
deemed included in paragraph 1 when speaking of
Essential Requisites “constructions of all kinds adhered to the soil.” (See 3
1) The placing must be made by the owner Manresa 31).
of the tenement, his agent, or duly authorized legal
representative. It is submitted that even if the animals are
2) The industry or works must be carried temporarily outside, they may still be considered as “real
on in the building or on the land. A transportation property,’’ as long as the intent to return is present, as in the
business is not carried on in a building or in the case of a homing pigeon. But from the point of view of
compound. (Mindanao Bus Co. v. City Assessor, L- criminal law, they must be considered as personal property,
17870, Sep. 29, 1962). and may properly be the object of theft or robbery.
3) The machines, etc., must tend directly
to meet the needs of said industry or works. When the animals inside the permanent animal
(ADAPTABILITY). houses are alienated onerously or gratuitously, it is believed
4) The machines must be essential and that the transaction is an alienation of personal property,
principal elements in the industry, and not merely unless the building or the tenement is itself also alienated.
incidental. [Thus, cash registers, typewriters, This is because in said alienation, the animal structures
calculators, computers, fax machines, etc., usually must of necessity be detached from the immovable. Hence,
found and used in hotels, restaurants, theaters, etc. an ordinary inter vivos donation of a pigeon-house need not
are merely incidentals, and not and should not be be in a public instrument.
considered immobilized by destination, for these
businesses can continue or carry on their functions Paragraph 7: Fertilizer actually used on a piece of
without these equipment. The same applies to the land;
repair or service shop of the transportation business
because the vehicles may be repaired or serviced in Fertilizers still in the barn and even those already on the
another shop belonging to another. On the other ground but wrapped inside some newspapers or any other
hand, machineries of breweries used in the covering are still to be considered personal property, for
manufacture of liquor and soft drinks, though they have not yet been “actually” used or spread over the
movable by nature, are immobilized because they land.
are essential to said industries; but the delivery
trucks and adding machines which they usually Paragraph 8: Mines, quarries, and slag dumps,
own and use and are found within their industrial while the matter thereof forms part of the bed, and
compounds are merely incidentals and retain their waters either running or stagnant;
movable nature. (Mindanao Bus Co. v. City
Assessor and Treasurer, L-17870, Sep. 29, 1962). Mines, including the minerals still attached
thereto, are real properties, but when the minerals have
been extracted, the latter become chattels. (See 40 C.J., pp. 1. Classes of movable/personal property (Art. 416, 417)
903-904).
Art. 416. The following things are deemed to be personal
“Slag dump’’ is the dirt and soil taken from a mine property:
and piled upon the surface of the ground. Inside the “dump’’ (1) Those movables susceptible of appropriation
which are not included in the preceding article;
can be found the minerals. (Nordstrom v. Sivertson-Johnson
(2) Real property which by any special provision
Min., etc. Co., 5 Alaska 204). of law is considered as personalty;
(3) Forces of nature which are brought under
The “waters” referred to are those still attached to control by science; and
or running thru the soil or ground. But “water” itself as (4) In general, all things which can be transported
distinguished from “waters,” is clearly personal property. from place to place without impairment of the real
Upon the other hand, canals, rivers, lakes, and such part of property to which they are fixed.
the sea as may be the object of appropriation, are classified
Art. 417. The following are also considered as personal
as real property.
property:
(1) Obligations and actions which have for their
Paragraph 9: Docks and structures which, though object movables or demandable sums; and
floating, are intended by their nature and object to (2) Shares of stock of agricultural, commercial
remain at a fixed place on a river, lake, or coast; and industrial entities, although they may have
real estate.
A floating house tied to a shore or bank post and
used as a residence is considered real property, considering For Paragraph 1 — a fountain pen; a piano;
that the “waters” on which it floats, are considered animals.
immovables. In a way, we may say that the classification of
the accessory (the floating house) follows the classification For Paragraph 2 — growing crops for the purposes
of the principal (the waters). However, if the floating house of the Chattel Mortgage Law (Sibal v. Valdez, 50 Phil. 512);
makes it a point to journey from place to place, it assumes machinery placed on a tenement by a tenant who did not
the category of a vessel. act as the agent of the tenement owner. (Davao Sawmill v.
Castillo, 61 Phil. 709).
Vessels are considered personal property. As a
matter of fact, they are indeed very movable. (See For Paragraph 3 — electricity, gas, light, nitrogen.
Philippine Refining Co., Inc. v. Jarque, 61 Phil. 229). (See U.S. v. Carlos, 21 Phil. 543)
Is the steamship President Cleveland personal or For Paragraph 4 — machinery not attached to land
real property? ANS.: It can be moved from place to nor needed for the carrying on of an industry conducted
place, hence, it is personal property, although it therein; portable radio; a laptop computer; a diploma
PARTAKES THE NATURE of real property in view hanging on the wall.
of its importance in the world of commerce.
A patent, a copyright, the right to an invention — these are
Paragraph 10: Contracts for public works, and intellectual properties which should be considered as
servitudes and other real rights over immovable personal property.
property. (334a)
2. Consumable / Non-consumables, Fungibles / Non-
The properties referred to in paragraph 10 are not fungibles (Art. 418)
material things but rights, which are necessarily intangible.
(See 3 Manresa 11). The piece of paper on which the Art. 418. Movable property is either consumable or non-
consumable. To the first class belong those movables which
contract for public works has been written is necessarily
cannot be used in a manner appropriate to their nature
personal property, but the contract itself, or rather, the without their being consumed; to the second class belong
right to the contract, is real property. A servitude or all the others.
easement is an encumbrance imposed on an immovable for
the benefit of another immovable belonging to another (1) Consumable and Non-Consumable Properties
owner, or for the benefit of a person, group of persons, or a Consumable — this cannot be used according to its
community (like the easement of right of way). (Arts. 613- nature without its being consumed.
614). Other real rights over real property include real Non-consumable — any other kind of movable
mortgage (see Hongkong and Shanghai Bank v. Aldecoa and property
Co., 30 Phil. 255), antichresis, possessory retention, usufruct
and leases of real property, when the leases have been (2) Classification and Examples
registered in the Registry of Property; or even if not (a) According to their nature: consumable and non-
registered, if their duration is for more than a year. consumable.
(b) According to the intention of the parties:
Upon the other hand, the usufruct of personal fungible and non-fungible (res fungibles and res
property or a lease of personal property, should be nec fungibles).
considered personal property.
Explanation:
C. MOVABLE PROPERTY 1) If it is agreed that the identical thing be
returned, it is non-fungible, even though by nature
it is consumable. Hence, if I borrow a sack of rice,
not for consumption but for display or exhibition (a) For public use — like roads, canals
merely (ad ostentationem), the rice is considered (may be used by ANYBODY).
non-fungible. (b) For public service — like national
2) If it is agreed that the equivalent be government buildings, army rifles, army vessels
returned, the property is fungible. Hence, if I (may be used only by duly authorized persons).
borrow vinegar (to consume) and promise to return (c) For the development of national wealth
an equivalent amount of the same quality, the — like our natural resources.
property is not only consumable; it is also fungible.
(See also Arnott v. Kansas Pac. Ry. Co., 19 Kansas ii. Those of similar character
95).
3) In the law of credit transactions, a loan Examples are the following:
of rice for consumption is considered a simple loan (a) Public streams. (Com. v. Meneses, 38
or mutuum; while a loan of rice for exhibition is a O.G. No. 123, p. 2839).
commodatum. (b) Natural beds of rivers. (Meneses v.
Commonwealth, 69 Phil. 647).
[NOTE: The Civil Code, in many instances, uses (c) River channels. (Meneses v.
the words “consumable’’ and “fungible’’ interchangeably. ]. Commonwealth, supra).
(d) Waters of rivers. (Meneses v.
[NOTE: It is evident, however, that fungibles are Commonwealth, supra).
those replaceable by an equal quality and quantity, either (e) Creeks — because “a creek is no other
by the nature of things, or by common agreement. If than an arm extending from a river.” (Mercado v.
irreplaceable, because the identical objects must be Mun. Pres. of Macabebe, 59 Phil. 592; Samson v.
returned, they are referred to as non-fungibles.]. Dionisio, 11 Phil. 538).
This article expressly provides that properties are owned (b) They cannot be acquired by
either: prescription; no matter how long the possession of
the properties has been, “there can be no
(a) in a public capacity (dominio publico) prescription against the State regarding property of
the public domain.” (Palanca v. Commonwealth, 40
Heirs of Proceso Bautistav. Sps. Barza O.G. 6th S, No. 10, p. 148; Meneses v.
GR 79167, May 7, 1992 Commonwealth, 69 Phil. 505). “Property of the
State or any of its subdivisions not patrimonial in
The function of administering and disposing of character shall not be the object of prescription.”
lands of the public domain in the manner (Art. 1113). Even a city or a municipality cannot
prescribed by law is not entrusted to the courts but acquire them by prescription as against the State.
to executive officials. (See City of Manila v. Ins. Gov’t., 10 Phil. 327).
(b) or in a private capacity (propiedad privado) (c) They cannot be registered under the
Land Registration Law and be the subject of a
Regarding the state, it may own properties both in Torrens Title; if erroneously included in a Torrens
its public capacity (properties of public dominion) Title, the land involved remains property of public
and in its private capacity (patrimonial property). dominion. (See Palanca v. Commonwealth, 69 Phil.
449; see also Bishop of Calbayog v. Director of
2. Property of Public Dominion (Art. 420) Lands, L-23481, June 29, 1972, 45 SCRA 418).
Art. 420. The following things are property of public (d) They, as well as their usufruct, cannot
dominion:
be levied upon by execution, nor can they be
(1) Those intended for public use, such as roads,
canals, rivers, torrents, ports and bridges attached. (Tufexis v. Olaguera, 32 Phil. 654; Tan
constructed by the State, banks, shores, Toco v. Mun. Council of Iloilo, 49 Phil. 52).
roadsteads, and others of similar character;
(2) Those which belong to the State, without being (e) In general, they can be used by
for public use, and are intended for some public everybody.
service or for the development of the national
wealth.
i. Kinds
(f) They may be either real or personal 477 [1906].) and the so-called “friar lands,’’ the
property, for it will be noted that the law here disposition of which is governed by Act No. 1120,
makes no distinction. the Friar Lands Act (Jacinto v. Director of Lands, 49
Phil. 853 [1927]; Alonzo v. Cebu Country Club, 417
iv. Alienation of Public Agricultural Lands SCRA 115 [2005].), are patrimonial property of the
State.
Under the Constitution, all natural
resources belong to the State. With the exception c. Conversion of Property of Public Domain to
of public agricultural lands, they are not subject to Patrimonial Property (Art. 422)
alienation. (Art. XII, Sec. 2 thereof.) Unless public
land is shown to have been reclassified and Art. 422. Property of public dominion, when no longer
alienated by the State to a private person, it intended for public use or for public service, shall form
remains part of the inalienable public domain. All part of the patrimonial property of the State.
lands not otherwise appearing to be clearly within
In Faustino Ignacio v. Dir. of Lands, L-
private ownership are presumed to belong to the
State. This principle is rooted in the Regalian
12958, May 30, 1960, the Supreme Court, citing
doctrine under which the State is the source of any Natividad v. Dir. of Lands (CA) (37 O.G., p. 2905),
said that only the executive and possibly the
asserted right to ownership of land.
legislative departments have the authority and
(1) Before public agricultural lands are
power to make the declaration that any land so
made available for disposition (under the Public
gained by the sea is not necessary for purposes of
Land Act [C.A. No. 141] as amended.), they are
public utility, or for the establishment of special
property of public dominion for the development
industries or for Coast Guard Service. If no such
of the national wealth. They are not capable of
declaration has been made by said departments, the
private appropriation, and possession thereof,
lot in question forms part of the public domain.
however long, cannot convert them into private
Consequently, until there is made a formal
property. After being made so available, they
declaration on the part of the Government thru the
become patrimonial or private property of the
executive department or the legislature, the parcel
State; and when acquired by private individuals,
in question continues to be part of the public
they become private property.
domain, and cannot be subject to acquisitive
prescription.
(2) In the hands of a government agency
tasked and authorized to dispose of alienable or
disposable lands of the public domain, these lands
[NOTE: This case involved lands gained by the sea
which thus are considered properties of the public
are still public, not private lands. Only when
dominion under Art. 4 of the Spanish Law of
qualified parties (i.e., individuals; see Constitution,
Art. XII, Sec. 2.) acquire these lands will they
Waters of Aug. 3, 1866.]
become private lands. (Chavez v. Public Estates
vi. Properties of Political Subdivisions (Art. 423,
Authority, 384 SCRA 152 [2000].)
424)
v. Patrimonial Property (Art. 421)
Art. 423. The property of provinces, cities, and
municipalities is divided into property for public
Art. 421. All other property of the State, which is not of the use and patrimonial property.
character stated in the preceding article, is patrimonial
property. Art. 424. Property for public use, in the provinces,
cities and municipalities consist of the provincial
a. Definition roads, city streets, municipal streets, the squares,
Patrimonial property of the State is the fountains, public waters, promenades, and public
property it owns but which is not devoted to public works for public service paid for by said
use, public service, or the development of the provinces, cities, or municipalities.
national wealth. It is wealth owned by the State in
All other property possessed by any of them is
its private, as distinguished from its public,
patrimonial and shall be governed by this Code,
capacity. without prejudice to the provisions of special laws.
The right to possess means the right to hold a thing Example: A person may fence off his house and lot
or to enjoy a right. In either case, it means that the thing or unless he denies others a right of way to which the latter
right is subject to the control of my will. may be entitled. In one case, the lands of A were being
flooded because B, the owner of certain lands, in order to
The right to use includes the right to exclude any maintain a fish pond, closed his (B’s) estate, thus closing the
person, as a rule, from the enjoyment and disposal thereof. outlet to the river of water on A’s property. The question
For this purpose, the owner-possessor may use such force as was whether B had the right to so fence his estate.
may be reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of the HELD: No, B had no right to prevent the outflow
property. (Art. 429). Upon the other hand, the owner of a of the water from A’s estate. While he had the right to
thing cannot make use thereof in such manner as to injure fence his estate, till he should not impair the servitudes or
the rights of a third person. (Art. 431). burdens constituted thereon. (Lunod v. Meneses, 11 Phil.
128).
The right to the fruits includes the right to three
kinds of fruits — natural, industrial and civil fruits (such as iv. Surface Rights of Landowner (Art. 437)
rents from buildings). The right to natural fruits extends to
the young of animals. (Art. 441). Art. 437. The owner of a parcel of land is the owner of its
surface and of everything under it, and he can construct
In Roman law, jus abutendi did not really mean the thereon any works or make any plantations and
excavations which he may deem proper, without detriment
right to abuse, but the right to consume. However, modern to servitudes and subject to special laws and ordinances.
terminology allows both meanings. A person can indeed He cannot complain of the reasonable requirements of
burn his own house if in an isolated place, but not where aerial navigation.
the burning would endanger the properties of others. A
person can dispose of his wealth, but he must leave enough a. Extent
for his own support and for those whom he is obliged to
support. (Art. 750). If a person wastes his money for the If a person owns a piece of land, it is
purpose of depriving his compulsory heirs of their rightful understood that he also owns its surface, up to the
legitime, he may be declared a spendthrift or prodigal. boundaries of the land, with the right to make
(Martinez v. Martinez, 1 Phil. 182). thereon allowable constructions, plantings, and
excavations.
The right to dispose includes the right to donate, to
sell, to pledge or mortgage. However, a seller need not be b. Limitations
the owner at the time of perfection of the contract of sale. It
is sufficient that he be the owner at the time of delivery. The limitations are:
(Art. 1459). It is essential in the contract of mortgage or (a) Servitudes or easements
pledge that the mortgagor or the pledgor be the owner of (b) Special laws — like the
the thing mortgaged or pledged, otherwise the contract is Mining Law
null and void. (Art. 2085; see also Contreras v. China (c) Ordinances
Banking Corp., [CA] GR 74, May 25, 1946). (d) The reasonable requirements
of aerial navigation
ii. Doctrine of Self-Help (e) Principles on human relations
(justice, honesty, good faith) and the
Art. 429. The owner or lawful possessor of a prevention of injury to the rights of third
thing has the right to exclude any person from the persons. (Arts. 19 and 431). Example:
unnecessary obstruction of the light and The applicant must also give a bond,
view of a neighbor. executed to the adverse party in double the value
of the property as stated in the affidavit
Surface right must also be restricted by the aforementioned, for the return of the property to
reasonable requirements of underground shelters the adverse party if such return thereof be
and depots with proper state permission, as long as adjudged, and for the payment to the adverse party
the surface right is not substantially disturbed. (If of such sum as he may recover from the applicant
ownership does not extend ad coelum — in the action. (Sec. 2, Rule 60, Rules of Court).
indefinitely upwards to the sky, it should not also
extend usque ad internos — indefinitely The court then orders the sheriff to take
downwards). (Observations on the new Civil Code, such property into his custody. (See Sec. 3, Rule 60,
15 Lawyer’s Journal, p. 499, Oct. 31, 1950). On this Rules of Court). Under the old law, it was the clerk
point, the Code Commission answered that a of court who made the order. (Sec. 263, Act 190).
special detailed law was needed on the points
touched upon by the Justice. (See Memorandum of If the property or any part thereof be
the Code Com., Feb. 17, 1951, p. 2). concealed in a building or enclosure, and not
delivered upon demand, the sheriff must cause the
4. Recovery of Possession and/or Ownership building or enclosure to be broken open. He then
takes the property. (See Sec. 4, Rule 60, Rules of
i. Actions available to owner Court).
The action prescribes after 4 years from the time A writ of possession used in connection
the property was wrongfully registered to another person. If with the Land Registration Law is an order
based on constructive trust, the action prescribes in 10 directing the sheriff to place a successful registrant
years. However, if the plaintiff is in possession of the under the Torrens system in possession of the
property, the action is imprescriptible. property covered by a decree of the Court. (See Sec.
17, Act 496 as amended by Sec. 6 of Act 680). Thus,
iv. Other Actions for Recovery of Possession it is NOT essential for the successful litigant to
institute another action for the precise purpose of
1. Injunction obtaining possession of the land, otherwise there
Injunction – judicial process whereby a person is would be multiplicity of suits. (Marcelo v. Mencias,
required to do or refrain from doing a particular L-15609, Apr. 29, 1960).
thing
A writ of possession shall issue only in the
Requisites: following instances:
1. There must be a clear and positive right (1) land registration proceedings;
over the property in question which should be (2) extrajudicial foreclosure of mortgage of
judicially protected through a writ real property;
2. the acts against which the injunction is (3) judicial foreclosure of property
to be directed are violative of such right provided that the mortgagor has possession and no
third party has intervened, and
When is it allowed: (4) execution sales.
1. in actions for forcible entry, the
dispossessed plaintiff may file, within 10 days from And even if the decree of registration is
filing the complaint, a motion for preliminary attacked in another case as being fraudulent, the
mandatory injunction to restore him in possession mere pendency of this ordinary action is not a bar
2. in ejectment cases where the appeal is to the issuance of the writ of possession applied for
taken, the lessor is given the same remedy by the registered owner. (See Sorongon v.
3. where the actual possessor of the Makalintal, 80 Phil. 259). If the writ of possession
property who is admittedly the owner, seeks cannot be issued to the successful registrant, and he
protection from repeated or further intrusions into would be compelled to institute other actions for
his property. the recovery of his property, we may well say that
4. when there is a clear finding of a right he cannot enjoy the fruits of his victory. (Pasay
of ownership and possession of a land in favor of Estate Co. v. Del Rosario, 11 Phil. 39; Manlapas v.
the party whose claims the subject property in Llorente, 48 Phil. 298).
A proceeding in personam is a proceeding to
If the writ of possession implies the enforce personal rights and obligations brought against the
delivery of possession of the land to the successful person and is based on the jurisdiction of the person,
litigant therein, a writ of DEMOLITION must although it may involve his right to, or the exercise of
likewise issue, otherwise, the writ of possession ownership of, specific property, or seek to compel him to
may be ineffective. (Marcelo v. Mencias, L-15609, control or dispose of it in accordance with the mandate of
Apr. 29, 1960). Indeed, a writ of demolition is the court. The purpose of a proceeding in personam is to
merely a complement of a writ of possession. impose, through the judgment of a court, some
(Lucero v. Loot, L-16995, Oct. 28, 1968). responsibility or liability directly upon the person of the
defendant. Of this character are suits to compel a defendant
The right to demand the writ of possession to specifically perform some act or actions to fasten a
never prescribes. The reason given by the court pecuniary liability on him. An action in personam is said to
being the provision of Sec. 46 of Act 496 that lands be one which has for its object a judgment against the
with a Torrens title cannot be acquired by person, as distinguished from a judgment against the
prescription (Manlapas and Tolentino v. Dorente, propriety (sic) to determine its state. It has been held that
48 Phil. 298), nor will laches or neglect defeat the an action in personam is a proceeding to enforce personal
right to recovery. (J.M. Tuason and Co. v. rights or obligations; such action is brought against the
Macalingdong, L-15398, Dec. 29, 1962). If the writ person.
of possession has been issued once, it will not be
issued again. (Locsin and De Guzman v. Diaz, 42 On the other hand, a proceeding in rem is one brought
Phil. 22). against the whole world and there is not particular
defendant in order to adjudicate the right of the plaintiff
Nor will a writ of possession ever be issued over a property. An example of which is an application for
against a person who began to possess the land only registration, partition of inheritance, etc. The judgment in
after the land had already been registered. an action in rem is binding against the whole world.
(Sorongon, et al. v. Makalintal, et al., 45 O.G. 9, p.
3820, Sep. 1, 1949). Indeed such subsequent 7. Obligations of an Owner (Arts. 431-432)
possessors cannot be summarily ousted merely by a
motion for a writ of possession, regardless of the Art. 431. The owner of a thing cannot make use thereof in
title or right which they claim to have. (Maglasang such manner as to injure the rights of a third person.
v. Maceren, et al., 46 O.G. 11, p. 90, Supp., Nov.
1950). The remedy for the registered owner would No Injury to Rights of Third Persons
thus be only forcible entry, unlawful detainer, This is one of the fundamental bases of
accion publiciana or accion reivindicatoria. police power, and constitutes a just restriction on
(Manuel v. Rosauro, 56 Phil. 365). the right of ownership.
NOTA BENE: The issuance of the writ of Art. 432. The owner of a thing has no right to prohibit the
interference of another with the same, if the interference is
possession is SUMMARY IN NATURE, hence, the
necessary to avert an imminent danger and the threatened
same cannot be considered a judgment on the damage, compared to the damage arising to the owner
merits which is defined as “one rendered after a from the interference, is much greater. The owner may
determination of which party is RIGHT, as demand from the person benefited indemnity for the
distinguished from a judgment rendered upon some damage to him.
preliminary or formal technical point.’’ (A.G.
Development Corp. v. NLRC, 88 SCAD 518 [1997]). State of Necessity
This Article refers to a state of necessity as
5. Real Action vs. Personal Action distinguished from the principle of self-help
enunciated in Art. 429.
In a real action, the plaintiff seeks the recovery of
real property, or, as indicated in section 2(a) of Rule 4, a real Rule Under Criminal Law
action is an action affecting title to real property or for the Under the Revised Penal Code, the state of
recovery of possession, or for partition or condemnation of, necessity is considered a justifying circumstance.
or foreclosure of a mortgage on, real property.
Any person who, in order to avoid an evil or
In a personal action, the plaintiff seeks the injury, does an act which causes damage to another does not
recovery of personal property, the enforcement of a incur criminal liability provided that the following
contract or the recovery of damages. (Hernandez v. Rural requisites are present:
Bank of Lucena, Inc., GR No. L-29791, 10 January 1978, 81 (a) That the evil sought to be avoided
SCRA 75, 84-85 actually exists;
(b) That the injury feared be greater than
It is important to determine whether an action is that done to avoid it;
real or personal in order to determine venue. (c) That there be no other practical and
less harmful means of preventing it. (Art. 11, par. 4,
6. Action in Personam vs. Action in Rem Rev. Penal Code).
Where there is an “equiponderance of evidence,’’ [NOTE: The right to expropriate is not an inherent
meaning that there is nothing in the evidence which shall power in a municipal corporation, and before it can
incline it to one side or the other, the court will find for the exercise the right, some law must exist conferring
defendant. Under this principle, the plaintiff must rely on the power upon it. If a law grants it, whether
the strength of his evidence and not on the weakness of the wisely or not, it must be given effect, provided that
defendant’s claim. Even if the evidence of the plaintiff may all other requirements of the law are complied
be stronger than that of the defendant, there is no with (City of Manila v. Chinese Community, 40
preponderance of evidence on his side if such evidence is Phil. 349).The validity of a statute directing the
insufficient in itself to establish his cause of action. (Sapu-an expropriation of certain property is a judicial
v. Court of Appeals, 214 SCRA 701 [1992]) question. (NARRA v. Francisco, L-14111, Oct. 24,
1960)]
10. Deprivation of Property by Competent Authority (Art.
435, 436) Due Process of Law
Under the Constitution, no person may be
Art. 435. No person shall be deprived of his property deprived of property without due process of law.
except by competent authority and for public use and (Art. III, Sec. 1, 1987 Constitution). In connection
always upon payment of just compensation. with expropriation, it has been held that there is
due process of law when there has been a
Should this requirement be not first complied with, the
courts shall protect and, in a proper case, restore the substantial compliance with the procedure laid
owner in his possession. down under Rule 69 — Expropriation — of the
Rules of Court (now Rule 67). (See Visayan
Art. 436. When any property is condemned or seized by Refining Co. v. Camus, 40 Phil. 550). In other
competent authority in the interest of health, safety or words, there must be proper expropriation
security, the owner thereof shall not be entitled to proceedings. (Santos v. Director of Lands, 22 Phil.
compensation, unless he can show that such condemnation
424). Such proceedings must include:
or seizure is unjustified.
1) A notice to the owner of the property;
i. As an exercise of the power of Eminent Domain 2) A full opportunity to present his side on
whether or not the purpose of the taking is public;
a. Requisites or whether or not the government reasonably
needs the property;
Essential Requisites of Eminent Domain 3) And such other procedural requisites as
(a) Taking by competent authority may be prescribed under the law. (Black,
(b) Observance of due process of law Constitutional Law; see also Secs. 1-14, Rule 67,
(c) Taking for public use Rules of Court)
(d) Payment of just compensation. (See
Republic v. Juan, L-24740, July 30, 1979). [NOTE: The mere notice of the intention
of the state to expropriate the land in the future
Competent Authority cannot prevent the landowner from alienating the
(a) Authority as of right — the State. property, for after all, the condemnation
(b) Authority by virtue of a grant — proceedings may not even be instituted. Moreover,
persons or corporations offering public even while proceedings have already begun, it is
services. possible that a sale to a person willing to assume
the risk of expropriation may be considered valid.
More specifically, the following are examples of (Rep. v. Baylosis, 61 O.G. 722).]
competent authority:
Strict construction: Whenever an entity is
granted the right to expropriate, the grant must be
strictly construed, and when the right is sought to damages, if any, MINUS the consequential benefits,
expropriate private property that is not really if any. (City of Manila v. Corrales, 32 Phil. 85;
needed, the right should be denied. (See Manila MRR v. Velasquez, supra)
Railroad Co. v. Hacienda Benito, 37 O.G. 1957)
However, the incidental or consequential benefits may be
Estoppel: It is true that before there can be set off only against the consequential damages, and not
expropriation, there must first be instituted proper against the basic value of the property taken. Otherwise,
proceedings in court. Therefore, an entity can be there is a possibility that the property may be taken without
held liable for damages for unlawful trespass if the any compensation at all, when it is alleged for instance that
proper procedure has not been first resorted to. the consequential benefits are equal to or greater than the
(See City of Manila v. Chinese Community, 40 consequential damages and basic value combined. Thus, the
Phil. 349). But the ruling will not apply if the law expressly provides that “in no case shall the
owner of the property is guilty of estoppel, i.e., if consequential benefits assessed exceed the consequential
he allowed the entity to make use of the land, and damages assessed, or the owner be deprived of the actual
incur expenses thereon without making any value of his property so taken.” (Sec. 6, Rule 67, Rules of
objection to the unauthorized taking. In such a Court)
case, he cannot complain against the expropriation,
although of course, he would still be entitled to just ii. As an exercise of Police Power
compensation for the land, inasmuch as he can no
longer recover the same. (See Manila Railroad Co. Art. 436 is based on police power, which
v. Paredes, 32 Phil. 534). Moreover, he will have to in turn is based on the maxim that “the welfare of
be paid not only for the part of the land actually the people is the supreme law of the land.’’
taken, but also for the remaining portions, if by
virtue of the improvements introduced thereon by Unlike eminent domain which requires
the entity, the remaining land has become useless the giving of just compensation, police power
for him. (See Tenorio v. Manila Railroad Co., 22 needs no giving of a financial return before it can
Phil. 411) be exercised. This is therefore one instance when
property may be seized or condemned by the
Abandonment of proceedings: When in government without any financial compensation.
the course of the expropriation proceedings it is
realized that there is no more need for the property Police power can refer not merely to
sought, it is permissible to abandon the condemnation and seizure, but also to total
proceedings, but the landowner must be destruction itself, provided that (a) the public
indemnified for all losses or prejudice caused him, interest is served and (b) the means used are not
in case the land had been in the meantime unduly harsh, abusive, or oppressive. (See U.S. v.
possessed by the plaintiff. (City of Manila v. Toribio, 15 Phil. 85). Thus, nuisances can be
Ruyman, 37 Phil. 421) abated; and rotting canned goods may be
destroyed. If the condemnation, seizure, or
Public Use destruction is unjustified, the owner is entitled to
The question as to whether or not any compensation. (See Art. 436).
specific or particular use is a public one is
ultimately a judicial question. Of course, if A State, in the exercise of police power,
Congress has specifically allowed expropriation of may abate nuisances, whether public or private,
realty for a designated or specified public purpose, whether per se or per accidens. (See Homeowners’
the courts of justice are not allowed to inquire into Association of El Deposito v. Lood, L-31864, Sep.
the necessity of such purpose. If, however, the 29, 1972)
grant has been merely a general one, that is,
authority to expropriate land for public use, courts [NOTE:
have jurisdiction to decide whether the taking is (a) Public nuisance — that which affects a
indeed for a public use. In such case, the issue is a community or a considerable number of persons.
question of fact, and the Court should inquire into (Art. 695)
and hear proof upon the question. (b) Private nuisance — that which is not
public. (Art. 695)
Just Compensation (c) Nuisance per se — that which is a
In eminent domain proceedings, just nuisance under all circumstances
compensation means a fair and full equivalent (d) Nuisance per accidens — that which is
value of the loss sustained. (MRR v. Velasquez, 32 a nuisance only under certain circumstances, like a
Phil. 286). Indeed, it must be “just” not only to the factory, situated in a residential district]
individual whose property is taken, but also to the
public which is to pay for it. (Rep. v. Lara, 50 O.G. 11. Hidden Treasure (Art. 438, 439)
5778). More specifically, it is the market value (the
price that the property will bring when it is offered Art. 438. Hidden treasure belongs to the owner of the land,
for sale by one who desires, but is not obliged to building, or other property on which it is found
sell it, and is bought by one who is under no
Nevertheless, when the discovery is made on the property
necessity of having it) PLUS the consequential
of another, or of the State or any of its subdivisions, and by
chance, one-half thereof shall be allowed to the finder. If
the finder is a trespasser, he shall not be entitled to any
share of the treasure.
NOTES:
For the finder to be entitled to one-half,
the discovery on another’s property must be “by
chance.” This means according to Spanish
commentators that there must be no purpose or
RIGHT OF ACCESSION (ART. 440)
intent to look for the treasure. (2 Navarro Amandi
71). Dean Francisco Capistrano and Dean Vicente
Art. 440. The ownership of property gives the right by
Francisco are however, of the opinion that the accession to everything which is produced thereby, or
phrase “by chance” was intended by the Code which is incorporated or attached thereto, either naturally
Commission to mean “by good luck,” implying that or artificially.
one who intentionally looks for the treasure is
embraced in the provision. If, however, discovery 1. General Provisions
is on another’s property, permission must be
sought, otherwise the finder will be considered a i. Definition
trespasser. It would have avoided confusion had
the Code Commission therefor used the phrase “by Accession is the right of a property owner
good luck.” The author is of the opinion that “by to everything which is:
chance” really means “by good luck,” whether (a) Produced thereby (accession discreta);
there was a deliberate search for the treasure or not (b) Or which is incorporated or attached
but there was no prior agreement on how the thereto
treasure, if found, would be divided. The reason is
evident: it is extremely difficult to find hidden ii. Accession vs. Accessory
treasure without looking for it deliberately, for in
many instances, the treasure is buried, that is, The term “accession’’ is also used and
“hidden,” sometimes many feet under the ground. defined with reference to the thing over which the
right is exercised as distinguished from accessory as
A treasure hunt is an express search for hidden treasure. An follows:
owner of land may for example contract with a group of (1) Accession are the fruits of, or additions
men who would look for the treasure. Should discovery be to, or improvements upon, a thing (the principal).
made, the actual finders will not necessarily be entitled to On the other hand, accessories are things joined to,
half. Instead, they will be given what has been stipulated in or included with, the principal thing for the latter’s
the contract. embellishment, better use, or completion (e.g., key
of a house; frame of a picture; bracelet of a watch;
Requisites in the Definition of Hidden Treasure machinery in a factory; bow of a violin).
(a) Hidden and unknown deposit (such that finding (2) While accessions are not necessary to
it would indeed be a discovery) the principal thing, the accessory and the principal
(b) Consists of money, jewelry or other precious thing must go together.
objects
(c) Their lawful ownership does not appear iii. Nature
Industrial fruits are those produced by lands of any kind Characteristic of the Expenses Referred to in Art. 44:
through cultivation or labor. (a) They must have been used for
production, gathering, or preservation, not for the
Civil fruits are the rents of buildings, the price of leases of improvement of the property.
lands and other property and the amount of perpetual or
(b) They must have been necessary, and
life annuities or other similar income. (355a)
not luxurious or excessive. Indeed, they must be
NOTES: commensurate with those ordinarily necessitated
by the product. (See 3 Manresa 187-188)
There are two kinds of natural fruits:
(a) The spontaneous products of the soil Suppose the expenses exceed the value of the fruits
(that is, human labor does not intervene). Examples (as when, for example, typhoons have damaged the crops)
— herbs, common grass (See 3 Manresa 182). must there still be a reimbursement for the expenses? ANS.:
(b) The young and other products of Yes, if the owner insists on being entitled to the fruits. This
animals. (See Art. 442, par. 1). Examples — chicks is because:
and chicken eggs (a) The law makes no exception or
distinction;
Whether brought about by scientific means or not, (b) The same thing would have happened
it would seem that the young of animals should be had the owner been also the planter;
considered as “natural” fruits, since the law makes no (c) He who gets expected advantages must
distinction. be prepared to shoulder losses.
The distinction between natural fruits and It is understood, of course, that if the fruits had not
industrial fruits is not always easily determined for it is yet been gathered, no indemnity is required. (See 3 Manresa
sometimes difficult to ascertain that part of the product 187- 188; Art. 449)
which corresponds to the forces of nature and that part
which corresponds to the industry of man. (3 Manresa 182) 2. Right of Accesion with Respect to Immovable Property
Thus:
(1) Grass, as the zacate for horse, is i. General Rule (Art. 445 and 446)
ordinarily a natural fruit but is considered an
Art. 445. Whatever is built, planted or sown on the land of
industrial fruit when it is cultivated as food for
another and the improvements or repairs made thereon,
horses. belong to the owner of the land, subject to the provisions of
(2) Wild mushrooms are natural fruits but the following articles.
cultivated mushrooms are industrial fruits.
(3) Standing trees are not fruits although Art. 446. All works, sowing, and planting are presumed
they produce fruits themselves but they may be made by the owner and at his expense, unless the contrary
considered as industrial fruits when they are is proved.
cultivated or exploited to carry on an industry. (3
ii. Basic Principles
Manresa 183)
Basic Principles of Accession Continua reimbursement (provided he does not remove
(Accession Industrial) them) or (2) he is entitled to removal (provided no
(a) To the owner of the principal (the land substantial injury is caused).
for example) must belong also the accessions, in (b) If the landowner acted in bad faith —
accordance with the principle that “the accessory (1) The owner of the materials is entitled to the
follows the principal’’ (“accesio cedit principali’’). ABSOLUTE right of removal and damages
(b) The union or incorporation must, with (whether or not substantial injury is caused) or (2)
certain exceptions, be effected in such a manner he is entitled to reimbursement and damages (in
that to separate the principal from the accessory case he chooses not to remove).
would result in substantial injury to either.
(c) He who is in good faith may be held If the owner of the materials is in bad faith
responsible but he should not be penalized. while the landowner is in good faith, then the
(d) He who is in bad faith may be landowner can acquire such materials but with
penalized. payment to the owner of the materials. The
(e) No one should enrich himself unjustly landowner also has the option to return the
at the expense of another. materials to the owner of the materials provided
(f) Bad faith of one party neutralizes the that they are in its original condition. Landowner
bad faith of the other so both should be considered can also recover damages in either case.
in good faith.
Regarding Art. 447, what rule should
iii. Applicability of Art. 445 and 446 apply if the landowner and the owner of the
materials are both in bad faith? ANS.: Consider
Art. 445 and 446 can, of course, be applied them in good faith. Good faith is always presumed,
only if the owner of the land is known. If he be and upon him who alleges bad faith rests the
unknown, no decision on the ownership of the burden of proof. (See Art. 527).
things planted, built or sown, can be made.
Although Art. 447 does not define good
iv. Rule where owner of land uses materials of faith or bad faith, we may, by analogy, apply the
another to build on his land (Ar. 447) definitions provided for in Arts. 453 and 526.
Hence:
Art. 447. The owner of the land who (a) The builder, planter or sower is in BAD
makes thereon, personally or through another, faith if he makes use of the land or materials
plantings, constructions or works with the which he knows belong to another.
materials of another, shall pay their value; and, if (b) He is in GOOD faith if he did not
he acted in bad faith, he shall also be obliged to the know that he had no right to such land or
reparation of damages. The owner of the materials materials.
shall have the right to remove them only in case he (c) The owner of the materials is in BAD
can do so without injury to the work constructed, faith if he allows another to use the materials
or without the plantings, constructions or works without informing him of the ownership thereof.
being destroyed. However, if the landowner acted (d) The owner of the materials is in GOOD
in bad faith, the owner of the materials may faith if he did not know that another was using his
remove them in any event, with a right to be materials; or granting that he did know, if he
indemnified for damages. informed the user of the ownership thereof and
made the necessary prohibition.
Rights and Obligations of the Owner of the Land
Who Uses the Materials of Another v. Rule where builder/sower/planter
(a) If the landowner acted in good faith — builds/sows/plants on a land not belonging to him
He becomes the owner of the materials but he must
pay for their value. The only exception is when a. Builder/Sower/Planter in Good Faith (Art. 448)
they can be removed without destruction to the
work made or to the plants. In such a case, the Art. 448. The owner of the land on which
owner of the materials can remove them. anything has been built, sown or planted in good
(b) If the landowner is in bad faith — He faith, shall have the right to appropriate as his own
becomes the owner of the materials but he must the works, sowing or planting, after payment of the
pay: (1) Their value (2) and damages. The exception indemnity provided for in articles 546 and 548, or
is when the owner of the materials decides to to oblige the one who built or planted to pay the
remove them whether or not destruction would be price of the land, and the one who sowed, the
caused. (In this case, the materials would still proper rent. However, the builder or planter
belong to the owner of said materials, who in cannot be obliged to buy the land if its value is
addition will still be entitled to damages). considerably more than that of the building or
trees. In such case, he shall pay reasonable rent, if
Rights and Obligations of the Owner of the the owner of the land does not choose to
Materials appropriate the building or trees after proper
(a) If the landowner acted in good faith — indemnity. The parties shall agree upon the terms
(1) The owner of the materials is entitled to
of the lease and in case of disagreement, the court
shall fix the terms thereof. Quevada v. CA, 2006
i. Good Faith The above-cited article "covers only cases in which the
builders, sowers[,] or planters believe themselves to be
Good faith under Article 448 consists in owners of the land or, at least, to have a claim of title
the honest belief of the builder, sower, or planter, thereto. It does not apply when the interest is x x x that of x
that the land he is building, sowing, or planting on, x x a mere tenant x x x." However, it is also applied to cases
is his or that by some title he has a right to build, where a builder has "constructed improvements with the
etc. thereon, and his ignorance of any defect or consent of the owner."
flaw in his title. (see Pleasantville Dev. Corp. v.
Court of Appeals, 67 SCAD 594, 253 SCRA 10 Petitioner is not the owner of or claiming title to the land,
[1996]; Orquiola v. Court of Appeals, 386 SCRA but a mere tenant occupying only a portion of the house on
301 [2002]; Rosales v. Castellort, 472 SCRA 144 it under the lease contract between him and private
[2005].) It implies honesty of intention, and respondent. No supporting evidence was presented showing
freedom from knowledge of circumstances which that petitioner's construction of the house was with the
ought to put the builder, etc. upon inquiry. (see consent of the land's previous owner, but good faith should
Philippine National Bank v. De Jesus, 411 SCRA be presumed, particularly since the lease relationship was
557 [2003].) open and in plain view.
Rosales v.
Castelltort, 2005 Macasaet v. Macasaet, 2004
The records indicate that at the time Castelltort began Article 448 applies to the present factual milieu. The
constructing his house on petitioners’ lot, he believed that it established facts of this case show that respondents fully
was the Lot 16 he bought and delivered to him by Villegas. consented to the improvements introduced by petitioners.
He is deemed a builder on good faith for he honestly In fact, because the children occupied the lots upon their
thought that what they purchased was Lot 16 but it turned invitation, the parents certainly knew and approved of the
out that it was really Lot 17. Thus, petitioner cannot ask for construction of the improvements introduced thereon.
the demolition of his house. Thus, petitioners may be deemed to have been in good faith
when they built the structures on those lots.
JM
Tuazon Inc. v. Vda. de Lumanlan, 1968 Mores v.
Yu-Go, 2010
As to Lumanlan's allegation in her counterclaim that she
should be deemed a builder in good faith, a similar Article 1678 of the Civil Code should apply in the present
contention has been rejected in Tuason & Co. vs. case. Article 1678 reads:
Macalindong, L-15398, December 29, 1962, where we ruled If the lessee makes, in good faith, useful
that there being a presumptive knowledge of the Torrens improvements which are suitable to the use for
titles issued to Tuason & Co. and its predecessors-in-interest which the lease is intended, without altering the
since 1914, the buyer from the Deudors (or from their form or substance of the property leased, the lessor
transferees) cannot, in good conscience, say now that she upon the termination of the lease shall pay the
believed her vendor had rights of ownership over the lot lessee one-half of the value of the improvements at
purchased. The reason given by the Court is that — that time. Should the lessor refuse to reimburse
said amount, the lessee may remove the
Had he investigated before buying and before improvements, even though the principal thing
building his house on the questioned lot, he would may suffer damage thereby. He shall not, however,
have been informed that the land is registered cause any more impairment upon the property
under the Torrens system in the name of J. M. leased than is necessary
Tuason & Co., Inc., If he failed to make the
necessary inquiry, appellant is now bound The above provision does not apply when the lessor
conclusively by appellee's Torrens title (Sec. 51, consented to the making of improvements by the lessee. In
Act 496; Emas vs. Zuzuarregui, 35 Phil. 144) such a case, Art. 448 governs.
(Tuason & Co., Inc. vs. Macalindong, ante).
Del
Lumanlan had chosen to ignore the Torrens title of Tuason Campo v. Abesia, 1988
& Co., Inc. and relied instead upon the Deudors' claim of
ownership, perhaps because such course appeared to her as The co-ownership is terminated by the partition and it
more advantageous; hence, she has only herself to blame for appears that the house of defendants overlaps or occupies a
the consequences now that the Deudors' claim has been portion of 5 square meters of the land pertaining to
abandoned by the Deudors themselves, and cannot pretend plaintiffs which the defendants obviously built in good
good faith. The Court of First Instance, therefore, did not faith, then the provisions of Article 448 of the new Civil
err in holding that she was not a rightful possessor and Code should apply.
sentencing her to vacate.
Boyer- Art. 448. The owner of the land on which anything
Roxas v. CA, 1992 has been built, sown or planted in good faith, shall
have the right to appropriate as his own the
works, sowing or planting, after payment of the
The construction of the unfinished building started when
indemnity provided for in articles 546 and 548,
Eriberto Roxas, husband of Rebecca Boyer-Roxas, was still XXX
alive and was the general manager of the respondent
corporation. The couple used their own funds to finance the Art. 546. Necessary expenses shall be refunded to
construction of the building. The Board of Directors of the every possessor; but only the possessor in good
corporation, however, did not object to the construction. faith may retain the thing until he has been
They allowed the construction to continue despite the fact reimbursed therefor.
that it was within the property of the corporation. Under
Useful expenses shall be refunded only to the
these circumstances, we agree with the petitioners that the possessor in good faith with the same right of
provision of Article 453 of the Civil Code should have been retention, the person who has defeated him in the
applied by the lower courts. 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
Sarmiento v. Agana, 1984 reason thereof.
Since the choice given the landowner is This is a wrong decision. The correct one
confined to either an appropriation of the house or is this:
to a compulsory selling of the land, he has no right Once the landowner elects to appropriate the
of removal or demolition, UNLESS after having improvements, the builder, etc. cannot exactly be
selected a compulsory sale, the builder fails to pay considered a possessor in good faith. Hence,
for the land. (Ignacio v. Hilario, 43 O.G. 140, 76 whatever fruits (rents) he receives during the
Phil. 605). The reason for the Ignacio case is clear. period of retention must be deducted from
If the builder cannot pay for the land, he should whatever indemnity is due to him; and in case it
not be allowed to continue using it to the owner’s exceeds the value of the indemnity, the excess shall
detriment. Hence this time, the builder must be returned to the owner of the land. (Mendoza v.
remove the construction. de Guzman, 52 Phil. 164 [1928])
v. Effect of Alienation by Owner of Land with Improvements (De Guzman v. Rivera, 4 Phil. 420 [1905].);
(1) Where purchaser paid only price of land. — In or
a case, a chapel was built on the land of another. The owner (b) Simply took possession of a
of the land sold the same to a purchaser who paid only for land which its former possessors were
the value of the land but not for the chapel which he knew compelled to abandon by reason of war
had been constructed by another. Who should pay for the (Roman Catholic Church v. Certain
value of the building? Ordinarily, the purchaser as the Municipalities of Ilocos Sur, 10 Phil. 1
owner of the land is entitled to all improvements existing [1908].); or
thereon. But he should pay for the value of the chapel (c) Bought a land with notice that
because the indemnity must be borne by the person there was some defect in the title of the
benefited by the accession. A purchaser, in accordance with vendor and could not have failed to know
Article 453, who buys land with improvements belonging that another had been holding the land
to another knowing such fact, places himself in the position under a claim of ownership (Tagala v.
of an owner of land who has acted in bad faith. (see Gongon Ybeas, [C.A.] 49 O.G. 200.); or had
v. Tianco, [C.A.] 36 O.G. 822; 3 Manresa 211-212.) presumptive knowledge of the owner’s
Torrens title (Rodriguez, Sr. v. Francisco, 6
(2) Where purchaser paid also value of SCRA 917 [1962].); or
improvements. — If the new owner has paid for the (d) Had been found by the trial
improvements, the action may still be brought against him court to be a builder in bad faith and
without prejudice to his right to recover from the former ordered to deliver the improvements to
owner. (Ibid.) It can be presumed that the purchase price of the owner which finding is presumed
the land includes the improvements. correct until reversed by a higher court,
and, therefore, notwithstanding allegation
(3) Option given to purchaser. — The owner of a of good faith, is not entitled to retain
land by purchase where a house was constructed by a possession until reimbursed pending
builder in good faith is given the choice, if the former appeal (De Leon v. Caluag, 21 SCRA 85
owner had not exercised his option, either to pay for the [1967].); or
value of the house, or require the builder to pay for the (e) Bought a parcel of land and
value of the land. (Martin v. Martin, 105 Phil. 750 [1959]) then constructed a new building after the
filing of action against him for annulment
(4) Where land registered under the Torrens of the sale of the land (Mindanao
system. — If the land is registered under the Torrens system Academy, Inc. v. Yap, 13 SCRA 190
and the certificate of title shows the holder to be the owner [1965].); or
of the land and the improvements thereon, any purchaser (f) Bought a parcel of land with
for value, without notice, who buys the land on reliance on the knowledge that the property was
such title will take the property free from the builder’s lien. under litigation and then planted about
(Atkins, Kroll & Co. v. Domingo, 46 Phil. 362 [1924]) 3,000 coconut trees thereon (Lumungo v.
Usman, 25 SCRA 225[1968].); or
b. Builder/Sower/Planter in Bad Faith (Art. 449-452) (g) Built a house on a lot after his
predecessor-in-interest, his parents, had
Article 449. He who builds, plants or sows in bad faith on been summoned in civil case regarding
the land of another, loses what is built, planted or sown said lot, and even reconstructed the house
without right to indemnity. (362) into a bigger one while the case was
pending. (Santos v. Mojica, 26 SCRA 703
Article 450. The owner of the land on which anything has
been built, planted or sown in bad faith may demand the [1969])
demolition of the work, or that the planting or sowing be
removed, in order to replace things in their former
condition at the expense of the person who built, planted Rodriguez, Sr. v. Francisco, 1962
or sowed; or he may compel the builder or planter to pay
the price of the land, and the sower the proper rent. (363a) Defendant is a possessor in good faith. It was only
in 1951 when Defendant became a possessor in bad
Article 451. In the cases of the two preceding articles, the
landowner is entitled to damages from the builder, planter faith for they were able to know the subsequent
or sower. (n) sale and issuance of TCT to Plaintiff. Defendant is
not liable for damages.
Article 452. The builder, planter or sower in bad faith is
entitled to reimbursement for the necessary expenses of The possession having begun in good faith the
preservation of the land. (n) presumption is that it continued to be enjoyed in
the same character until it could be proven that the
i. Instances of Bad Faith
possessor was aware that his possession was
wrongful (Articles 528 and 529, Civil Code). It
Instances of bad faith. — There is bad
appears that in spite of the consolidation of
faith, for example, where one:
ownership in appellant and the issuance of a
(a) Bought a house from another
transfer certificate of title in his name in 1937, he
with full knowledge of the fact that the
never attempted to exercise possessory rights over
land belonged to the landlord of the seller
the property or paid taxes thereon, nor did he
demand its possession from appellee until the Article 452. The builder, planter or sower in bad faith is
complaint in this case was filed on January 20. entitled to reimbursement for the necessary expenses of
1949. preservation of the land. (n)
We uphold the Court of Appeals in its (2) Owner of materials acted in bad faith
conclusion that Article 448 of the Civil Code is but the others in good faith. — If the materials
inapplicable to the factual milieu herein. Said codal were used “with his knowledge and without
provision applies only when the builder, planter, or opposition on his part,’’ but the owner of the land
sower believes he had the right so to build, plant or and the builder, etc., acted in good faith, he forfeits
sow because he thinks he owns the land or believes his rights to his materials without the right to be
himself to have a claim of title. In this case, indemnified, as the case falls under Article 449 and
petitioner makes no pretensions of ownership makes himself liable for any consequential
whatsoever. damages. (Art. 451.) It is the same as if he himself
built, planted, or sowed.
Petitioner concedes that he was a builder
in bad faith but maintains that' the (3) Only builder, etc. acted in bad faith. —
EVANGELISTAS should also be held in bad faith, If the owner of the land appropriates the accession,
so that both of them being in bad faith, Article 453 the builder, etc. shall be principally liable to the
of the Civil Code should apply. By the same token, owner of the materials for their value plus
however, that Article 448 of the same Code is not damages. In case of insolvency of the builder, etc.,
the owner of the land shall be subsidiarily liable to
the owner of the materials for their value but not Art. 456. In the cases regulated in the preceding articles,
for damages for he acted in good faith. The builder, good faith does not necessarily exclude negligence, which
etc. is also liable to the owner of the land. (Arts. gives right to damages under article 2176. (n)
450, 451.)
NOTE: Good faith does not necessarily preclude negligence,
for, in fact, in negligence there is no intention to do wrong
(4) Only owner of land acted in good faith.
or cause damage unlike in bad faith which presupposes such
— The landowner can exercise his alternative
intention. A party guilty of negligence, irrespective of his
rights under Articles 449 and 450 with a right to
good faith, shall be liable for the damage done in
demand damages from both. (Art. 451.) Since both
accordance with the rule on culpa aquiliana or quasi-delict
the owner of the materials and the builder, etc.
provided in Article 2176 of the Civil Code.
acted in bad faith, as between them, they are
treated as having both acted in good faith. Hence,
vi. Alluvion (Art. 457)
the owner of the materials is entitled to be
reimbursed by the builder, etc.
Art. 457. To the owners of lands adjoining the banks of
rivers belong the accretion which they gradually receive
The owner of the land is not subsidiarily from the effects of the current of the waters.
liable to the owner of the materials or to the
builder, etc. in case the latter pays the value of the NOTES:
materials (par. 2.) because as to the owner of the
land, the last two are in bad faith. Alluvion are the soil deposits while accretion is the process.
There are three requisites, to wit: In the absence of evidence as to whether the
(1) The segregation and transfer must be caused by change in the course of a river was caused by
the current of a river, creek, or torrent. — It will accretion and erosion (alluvion) or whether it had
be useful to define the terms used by the law. occurred through avulsion, the presumption is that
(a) Current refers to the continuous the change was gradual and was caused by alluvion.
movement of a body of water, often horizontal, in a (Payatas Estate Improvement Co. v. Tuason, 53
certain direction. Phil. 55 [1929])
(b) River has been defined as “a natural
surface stream of water of considerable volume and (3) The portion of land transported must
permanent or seasonal flow’’ (Webster’s 3rd Int. be known or identifiable. — In avulsion, the
Dictionary, p. 1962.), emptying into an ocean, lake detached portion must be known or at least,
or other body of water. identifiable. The law contemplates mass of earth
(c) Creek11 is a small islet extending suddenly transferred from one estate to another
further into the land; a natural stream of water and, therefore, removable by the original owner.
normally smaller than and often tributary to a Even if the detached portion be placed on top of
river. (see Ibid., p. 533.) another land instead of being adjoined to it, Article
(d) Torrent is a violent stream of water as a 459 is still applicable as long as it can be identified
flooded river or one suddenly raised by a heavy as coming from the estate from which it was
rain and descending a steep incline; a raging flood detached. (see Art. 463.)
or rushing stream of water. (see Ibid., p. 2413.)
If only soil is removed by the water and spread
Suppose a known portion of land is transferred over another’s land such that no known portion
from one estate to another by other forces of can be said to exist which can be removed, there is
nature than the current of a river, such as when no avulsion. The latter acquires ownership by right
land from a mountain slope rolls down to another of accretion.
estate by reason of an earthquake, will Article 459
apply? c. Removal
A noted authority has opined that in the absence of The former owner preserves his ownership
an express provision on the matter, Article 459 can of the segregated portion provided he removes (not
be applied by analogy. (II Tolentino, op. cit., p. 122, merely claims) the same within the period of two
citing Borell y Soler, pp. 298-299.) The spirit of the years. The period is considered sufficient for the
article justifies its application. original owner to effect the removal of the
transferred portion which may be of considerable
(2) The segregation and transfer must be sudden or area.
abrupt. — Thus, where the evidence conclusively
showed that prior to or about the year 1888 the Although Article 459 does not expressly
parcels of lands in question formed an integral part say, it would seem that his failure to do so would
of the Payatas Estate and that in that year and have the effect of automatically transferring
subsequent years owing to the sudden and marked ownership over it to the owner of the other estate.
changes in the course of the San Mateo River, the The law does not expressly require that the new
parcels were separated from the main part of the owner take formal possession of the segregated
portion. Neither does it make distinction between still be considered as the owner of the uprooted
voluntary or involuntary failure to remove, and trees, but if he does not claim them within six
between private land and land of the public months, B will become the owner. If A makes the
domain. claim, he will have to shoulder the expenses for
gathering or putting them in a safe place. Failure to
Among the reasons given for the clause on removal make the claim within six months will bar any
within two years are the following: future action to recover the trees.
(1) The segregated portion is usually very
small and it is thus useless to the original owner of Rule if Trees Have Been Transplanted
the land from which it originated and which is In the example given above, even if the trees have
generally far from the other land; been transplanted by the owner of the land upon
(2) The principle involved is similar to that which they have been cast on his own land —
underlying Article 460 whereby the owner of ownership still pertains to the person who lost the
uprooted trees must claim them within six (6) trees provided that the claim was made properly.
months; (See 3 Manresa 244). Incidentally, the owner of the
(3) If the owner of the separated portion land upon which the trees have been cast, does not
retains his ownership without any qualification, he have to wait for six months before he can
would have a right to enter the other estate at any temporarily set them aside to make proper use of
time, and this easement, aside from preventing the his own land.
owner of the latter estate from enjoying his
property, may create ill-feeling between them; and x. Ownership of Islands (Art. 464-465)
(4) After a time the transferred portion
may become permanently attached, physically Art. 464. Islands which may be formed on the seas within
speaking to the other land; the original owner the jurisdiction of the Philippines, on lakes, and on
should, therefore, remove it as soon as possible and navigable or floatable rivers belong to the State.
within two years. (see Memorandum of the Code
Art. 465. Islands which through successive accumulation of
Commission, Feb. 17, 1951, 8 Lawyer’s Journal, p. alluvial deposits are formed in non-navigable and non-
217) floatable rivers, belong to the owners of the margins or
banks nearest to each of them, or to the owners of both
viii. Change of Course of Rivers (Art. 461-463) margins if the island is in the middle of the river, in which
case it shall be divided longitudinally in halves. If a single
Article 461. River beds which are abandoned through the island thus formed be more distant from one margin than
natural change in the course of the waters ipso facto from the other, the owner of the nearer margin shall be the
belong to the owners whose lands are occupied by the new sole owner thereof.
course in proportion to the area lost. However, the owners
of the lands adjoining the old bed shall have the right to NOTES:
acquire the same by paying the value thereof, which value
shall not exceed the value of the area occupied by the new Who owns island formed by unidentifiable accumulated
bed. (370a) deposits?
ANS.: It depends.
Article 462. Whenever a river, changing its course by
natural causes, opens a new bed through a private estate, (a) If formed on the sea —
this bed shall become of public dominion. (372a) 1) Within the territorial waters or
maritime zone or jurisdiction of the
Article 463. Whenever the current of a river divides itself Philippines — STATE. (Art. 464) (This is
into branches, leaving a piece of land or part thereof patrimonial property — Manresa).
isolated, the owner of the land retains his ownership. He 2) Outside of our territorial
also retains it if a portion of land is separated from the
jurisdiction — The FIRST COUNTRY TO
estate by the current. (374)
EFFECTIVELY OCCUPY the SAME. (This
NOTES: The abandoned river bed which had already dried is in accordance with the principles of
up is a property of public dominion. Hence, there is a need Public International Law for “discovery
for a declaration by the State that it is awarded to the owner and occupation considered as a definite
whose lands are occupied by the new course of the river. mode of acquiring territory.’’)
(b) If formed on lakes, or navigable or floatable
ix. Rule of Uprooted Trees (Art. 460) rivers — the State. (This is also patrimonial
property — Manresa).
Art. 460. Trees uprooted and carried away by the current (c) If formed on non-navigable or non-floatable
of the waters belong to the owner of the land upon which rivers —
they may be cast, if the owners do not claim them within 1) If NEARER in margin to one
six months. If such owners claim them, they shall pay the bank, owner of nearer margin is SOLE
expenses incurred in gathering them or putting them in a owner. (Art. 465)
safe place.
2) If EQUIDISTANT, the island
shall be divided longitudinally in halves,
Example:
each bank getting half. (Art. 465)
Because of the force of the river current, some trees
on the estate of A were uprooted and cast on the
Definitions
estate of B. Who owns the trees? ANS.: A should
(a) Navigable or floatable river — if useful
for floatage and commerce, whether the tides affect Ownership of new object formed by adjunction
the water or not (45 C.J. 403-404); should benefit (1) If the union took place without bad
trade and commerce. (U.S. v. Oregon, 295 U.S. 1) faith, the owner of the principal thing acquires the
(b) Non-Navigable — opposite of (a). accessory, with the obligation to indemnify the
former owner of the accessory for its value in its
Rule to Follow if a New Island is Formed uncontroverted state.
Between the Older Island and the Bank (2) If the union took place in bad faith,
In this case, the owner of the older island is Article 470 applies.
considered a riparian owner, and if the new island
is nearer in margin to the older island, the owner d. Tests to Determine which is the Principal Thing
of the older island should be considered also the
owner of the new island. (See Manresa 262-263, Art. 467. The principal thing, as between two things
265). incorporated, is deemed to be that to which the other has
been united as an ornament, or for its use or perfection.
(376)
3. Right of Accesion with Respect to Movable Property
Art. 468. If it cannot be determined by the rule given in the
i. Adjunction preceding article which of the two things incorporated is
the principal one, the thing of the greater value shall be so
Art. 466. Whenever two movable things belonging to considered, and as between two things of equal value, that
different owners are, without bad faith, united in such a of the greater volume.
way that they form a single object, the owner of the
principal thing acquires the accessory, indemnifying the In painting and sculpture, writings, printed matter,
former owner thereof for its value. engraving and lithographs, the board, metal, stone, canvas,
paper or parchment shall be deemed the accessory thing.
a. Requisites (377)
a. Kinds Art. 474. One who in good faith employs the material of
another in whole or in part in order to make a thing of a
Articles 472 and 473 deal with mixture which takes different kind, shall appropriate the thing thus
transformed as his own, indemnifying the owner of the
place when two or more things belonging to
material for its value.
different owners are mixed or combined with the
respective identities of the component parts If the material is more precious than the transformed
destroyed or lost. As distinguished from adjunction, thing or is of more value, its owner may, at his option,
there is a greater degree of inter-penetration and, appropriate the new thing to himself, after first paying
in certain cases, even decomposition of the things indemnity for the value of the work, or demand indemnity
which have been mixed. (3 Manresa 277.) for the material.
(3) Mixture caused by an owner in bad faith. — By way of illustration, a piece of canvas worth P100 may
The actor not only forfeits the thing belonging to him but have been used in bad faith in painting a masterpiece worth
also becomes liable to pay indemnity for the damages P100,000. In such a case to allow the owner of the material
caused to the other owner. (Art. 473, par. 2) to appropriate the painting would be manifestly unjust and
would unduly enrich him at the expense of the painter. Or
one’s material may have been used in good faith by a An action may also be brought to prevent a cloud from
scientist in the making of a new instrument of tremendous being cast upon title to real property or any interest
scientific value. therein.
(2) The object of ownership must be a thing or (2) Similarly, where the son who built his house on
right which is undivided — The subject matter of co- the disputed lot in 1949 with the consent of his father, has
ownership may be a thing which may be real or personal, or been in possession of the lot since then with the knowledge
a right constituted over a thing such as a leasehold right. of his co-heirs, such even before his father died in 1954,
Thus, in a case, it was held that upon the death of the lessee when the co-ownership was created, his inheritance or
of a rural land, his rights as such, were transmitted to his share in the co-ownership was already particularly
heirs, since the death of the lessee is not among the causes designated or physically segregated, it was held: “x x x it
that terminate lease of rural lands and the Civil Code (Art. would have been just and equitable to have segregated said
1178.) expressly provides that rights acquired by virtue of portion in his favor and not one adjacent to it,’’ as the son’s
an obligation are transmissible in accordance with law, share in the inheritance. (Ibid)
should there be no stipulation to the contrary. (Santiago v.
Villajin, [C.A.] 43 O.G. [No. 8], p. 3137) Si v. CA, 2000
(3) Each co-owner’s right must be limited only to The lot in question had already been partitioned
his ideal share of the physical whole — Prior to partition, when their parents executed three (3) deed of sales
all that the co-owner has is an ideal or abstract quota in the (sic) in favor of Jose, Crisostomo and Severo, all
entire undivided thing owned in co-ownership. He cannot surnamed Armada (Exh. 1, 2, & 3), which
point to a particular portion of the property as his very own. documents purports to have been registered with
the Register of Deeds of Pasay City, on September
c. Characteristics 18, 1970, and as a consequence TCT No. 16007
(Exh. A) was issued. Notably, every portion
The characteristics of co-ownership refer to its requisites conveyed and transferred to the three sons was
and other incidentals which distinguish it from other forms definitely described and segregated and with the
of ownership. corresponding technical description (sic). In short,
this is what we call extrajudicial partition.
They include the following:
(1) There are two or more co-owners; The fact that the three portions are embraced in
(2) There is a single object which is not one certificate of title does not make said portions
materially or physically divided and over which less determinable or identifiable or distinguishable,
and his ideal share of the whole, each co-owner one from the other, nor that dominion over each
exercises ownership, together with the other co- portion less exclusive, in their respective owners.
owners; Hence, no right of redemption among co-owners
(3) There is no mutual representation by exists."
the co-owners; and
(4) It exists for the common enjoyment of Heirs of M. Cabal v. Spouses L. and R. Cabal, 2006
the co-owners;
(5) It has no distinct legal personality; and Elementary is the rule that there is no co-
(6) It is governed first of all by the contract ownership where the portion owned is concretely
of the parties; otherwise, by special legal determined and identifiable, though not
provisions, and in default of such provisions, by the technically described, or that said portion is still
provisions of Title III on Co-ownership. embraced in one and the same certificate of title
does make said portion less determinable or
d. Disputed portion/portions already concretely determined identifiable, or distinguishable, one from the other,
nor that dominion over each portion less exclusive,
There is no co-ownership when the different portions in their respective owners.
owned by different people are already concretely
determined and separately identifiable, even if not yet Thus, since Marcelino built a house and has been
technically described. occupying the disputed portion since 1949, with
the consent of his father and knowledge of the co-
(1) Thus, where the portion of a parcel of land sold heirs, it would have been just and equitable to have
to a buyer is concretely determined or identifiable such as
segregated said portion in his favor and not one (4) Disposal of share. — A co-owner can dispose of
adjacent to it. his share without the consent of the others with the
transferee automatically becoming a co-owner, while a
e. Sources of Co-ownership partner, unless authorized, cannot do so and substitute
another as a partner in his place;
Co-ownership may be created by any of the following
causes: (5) Mutual agency. — In co-ownership, there is
generally no mutual representation, while in partnership, a
(1) By contract (Art. 494, par. 2; Art. 1775.2), such partner can generally bind the partnership;
as when two persons shared in paying the purchase price of
a parcel of land with the agreement to divide the land (6) Distribution of profits. — In co-ownership, the
equally between them (Gallemit v. Tabiliran, 20 Phil. 241 distribution of profits must be proportional to the respective
[1911]) Two persons having a common interest in a business interests of the co-owners, while in partnership, the
are co-owners thereof when no partnership is formed distribution of profits is subject to the stipulation of the
between them (Sarah v. Lopez, 5 Phil. 78 [1906]; Strachan E partners;
& C Murray v. Emaldi, 22 Phil. 295 [1912].);
(7) Effect of death or incapacity. — A co-
(2) By law, such as in easement of party walls (Art. ownership is not dissolved by the death or incapacity of a
658.); absolute community of property between spouses co-owner, but such fact dissolves a partnership; and
(Arts. 88, 90, Family Code.), etc
(8) Duration. — In co-ownership, an agreement to
(3) By succession, as in the case of heirs of keep the thing undivided for a period of more than ten
undivided property before partition. (Javier v. Javier, 6 Phil. years (although it may be extended by a new agreement) is
495 [1906]) Where some of the co-owners of a property die, void, while in partnership, there may be agreement as to
the heirs of those who die become co-owners of the any definite term without limit set by law.
property together with those who survive (Alcala v. Alcala,
35 Phil. 679 [1916]; Cid v. Peralta, 24 Phil. 142 [1913].); g. Co-ownership v. Easement
Note, however, that Article 485 speaks of The lack of notice, even if practicable, would not
“stipulation in a contract.’’ Therefore, if the co-ownership is exempt the other co-owners from the obligation to
created other than by a contract, such as by will or by contribute to the expenses. But the co-owner who
donation, the share of the co-owners need not be advanced them has the burden of proving that they
proportionate to their respective interests. There is no were properly incurred.
reason, for example, why the testator or donor cannot
provide for rules to govern to a certain extent a co- 2. Renunciation by a Co-owner of his Share
ownership created by him.
(1) Renunciation need not be total. —
1. Necessary Expenses (Art. 488) Under the former provision, a co-owner may
exempt himself from the payment of expenses of
Art. 488. Each co-owner shall have a right to compel the preservation by renouncing his entire interest in
other co-owners to contribute to the expenses of the co-ownership. This was considered extremely
preservation of the thing or right owned in common and to unjust or too severe.
the taxes. Anyone of the latter may exempt himself from
this obligation by renouncing so much of his undivided
interest as may be equivalent to his share of the expenses For example: “The share of a co-owner in the
and taxes. No such waiver shall be made if it is prejudicial expenses of preservation is P1,000, but his
to the co-ownership. (395a) undivided interest in the co-owner-ship is P50,000.
Why should he be required to renounce P50,000 in
Art. 489. Repairs for preservation may be made at the will order to pay his contribution of P1,000? Therefore,
of one of the co-owners, but he must, if practicable, first the new Code requires that he shall renounce only
notify his co-owners of the necessity for such repairs.
so much of his undivided interest as may be
Expenses to improve or embellish the thing shall be
decided upon by a majority as determined in Article 492. equivalent to his share of the expenses and taxes.’’
(n) (Memorandum of the Code Commission to the
Joint Congressional Committee on Codification,
NOTES: The expenses of preservation of the thing Feb. 17, 1951)
or right owned in common and the amount of taxes
due thereon should be borne by all. Hence, a co- Under Article 488, the co-owner need only
owner who advanced them has a right to demand renounce or give up in favor of the other co-
reimbursement from the others in proportion to owners so much of his undivided share as may be
their respective interests in the co-ownership. equivalent to his share of expenses and taxes.
(1) Article 488 refers only to necessary Thus, where the interests of co-owners A, B, and C
expenses (see Art. 546.) such as those incurred for are 3/6, 2/6, and 1/6, respectively, and the expenses
repair of a building in a ruinous condition and taxes advanced by A amount to P30,000, their
(Trinidad v. Ricafort, 7 Phil. 449 [1907]) and to shares shall be: A-P15,000; B-P10,000, and C-
preserve the rights of joint owners to mining claims P5,000. B may exempt himself from contributing
(Hibberd v. Estate of McElroy, 25 Phil. 164 [1913]) his share by renouncing P10,000 of his 2/6 interest
Taxes on the thing owned in common are to be in the co-ownership. If his interest is P100,000, he
considered as necessary expenses because if they must renounce 1/10 thereof. The share of B shall
are not paid, the property may be sold for tax accrue to A and C proportionately because they
delinquency or forfeited to the government. bear the expenses proportionately. On the basis of
their interest of 3/6 and 1/6, the proportion is 3/1
(2) Useful expenses (Arts. 546, 547.), even or P7,500: P2,500.
if the value of the community party is thereby
increased, are not covered, the purpose of a co- (2) Nature of the renunciation. — The
ownership not being for profit, unless such renunciation is in reality a case of dacion en pago
expenses were incurred with the consent of the involving expenses and taxes already paid. Since
others. the “renunciation’’ (in favor of the co-owners)
constitutes a novation by change of the object of
(3) Expenses for pure luxury or mere the obligation (i.e., sum of money to interest in the
pleasure (Art. 548.) are not also refundable not co-ownership), the consent of the other co-owners
being for preservation. is necessary. If the creditor has not yet been paid,
the “renunciation’’ cannot be made without his
The law, however, requires that the co-owner consent (Art 1293) for this would be a case of
must, if practicable, first notify the co-owners of novation by substitution of debtor. Such consent is
the necessity for the repairs. The absence of this also required where the renunciation is in favor of
requirement would open the door to bad faith or the creditor, being a case of dacion en pago. In fine,
fraud. If impracticable or where the repairs are a renunciation is not a unilateral act which will
very urgent and the other co-owners are in remote extinguish an existing liability of a co-owner
places and cannot be reached by ordinary means of without formal acceptance by the other co-owners
or by the creditor.
(3) Renunciation, a free act. — The failure But until a division be made of the pro-indiviso property,
or refusal of a co-owner to contribute pro rata his the respective part belonging to each co-owner cannot be
share of the expenses is not tantamount to a determined, and every one exercises, together with the
renunciation. A co-owner who has not waived his others, joint dominion over the property and is entitled to
share in the co-ownership may be compelled (by the joint use and enjoyment of the same (Pardell v.
an action in court) to pay his share in the cost of its Bartolome, 23 Phil. 450 [1912].); and
maintenance. He may not be compelled to
renounce. (3) In such a way as not to prevent the other co-
owners from using it according to their rights. — The right
(4) When renunciation not allowed. — of use by a co-owner is limited by the similar right of the
The right of a co-owner to renounce his share in other co-owners. The co-ownership exists for the common
the co-ownership, while voluntary, is not absolute. enjoyment and use of the property owned in common. A
Waiver is not allowed if it is prejudicial to the co- co-owner may use and enjoy the same without limitations,
ownership. Thus, a co-owner having the means except that it be for the purpose for which it is intended
cannot renounce to exempt himself from the duty and that he must not prejudice the rights of the other co-
to contribute for the repair of a ruinous building in owners. So that no co-owner may be prevented from using
danger of falling. The other owners can proceed to the thing in accordance with their rights, the co-owners
have the building repaired and the former would may establish rules on the matter, which will be binding on
still be liable despite of his renunciation. Legally all. In default thereof, there should be a just and equitable
speaking, there is no renunciation. distribution of uses among all the co-owners. (3 Manresa
441-442)
i. Limitation on Co-owner’s right to use (Art. 486)
In a co-ownership, the act of one benefits all the co-owners,
Art. 486. Each co-owner may use the thing owned in unless the former repudiates the co-ownership. Thus, if a
common, provided he does so in accordance with the co-owner prevails in a case for reconveyance, it will also
purpose for which it is intended and in such a way as not redound to the benefit of the other co-owners. (Phil.
to injure the interest of the co-ownership or prevent the
National Bank v. Heirs of E. and D. Militar, 467 SCRA 377
other co-owners from using it according to their rights.
The purpose of the co-ownership may be changed by [2005])
agreement, express or implied. (394a)
j. Ejectment
NOTES: The above provision limits the right of each co-
owner to make use of the thing owned in common. Each Art. 487. Anyone of the co-owners may bring an action in
ejectment. (n)
co-owner may use the thing owned in common provided he
does so:
NOTES:
(1) In accordance with the purpose for which the
(1) By anyone of the co-owners. — Article 487
co-ownership is intended. — To determine said purpose,
authorizes any co-owner to bring, in behalf of himself, and
resort must be had to the agreement, express or implied, of
the other co-owners, an action in ejectment affecting the
the co-owners, and in the absence thereof, it is to be
co-ownership. It changes the ruling laid down in the case of
understood that the thing is intended for that use for which
Palanca v. Baguisi (38 Phil. 177 [1918].) which held that a
it is ordinarily adapted according to its nature. If a thing has
co-owner cannot maintain such action without the other
been previously used for a particular purpose, it is presumed
co-owners joining as co-plaintiffs. An action for ejectment
that such is the purpose intended by the parties. (3 Manresa
under Article 487 covers all kinds of actions for the
440-441)
recovery of property. It includes a suit of forcible entry or
unlawful detainer, recovery of possession, and recovery of
The co-owners are free to change the purpose of the co-
ownership without the necessity of joining all the other co-
ownership by agreement, express or implied. (2nd sentence)
owners as co- plaintiffs, because the suit is deemed to be
Consequently, in the absence of agreement, express or
instituted for the benefit of all. It follows that an attorney-
implied, mere tolerance on the part of the co-owners
in-fact of the plaintiff co-owner does not need authority
cannot be invoked by a co-owner to legalize a change in the
from all the co-owners. (Sering v. Plazo, 166 SCRA 85
use of the thing owned in common according to the purpose
[1988]; Vencilao v. Camarento, 29 SCRA 473 [1969];
for which it is intended; neither can prescription be
Adlawan v. Adlawan, 479 SCRA 275 [2006]; Mendoza v.
invoked by a co-owner to establish a right to such different
Coronel, 482 SCRA 353 [2006])
use because prescription cannot be based on acts of mere
tolerance by the other co-owners (3 Manresa 443.);
The new rule is justified by the consideration that, in a
sense, a co-owner is owner of the whole and over the whole
(2) In such a way as not to injure the interest of the
he exercises rights of dominion. (see Tarnate v. Tarnate,
co-ownership — This limitation and the first are established
supra.) As the action is supposed to be brought by a co-
in the interest of the co-ownership itself. Using the
owner (especially if he is the administrator of the thing) for
community property for a different purpose, or for the
the benefit of all, he does not, if the suit involves only his
exclusive benefit of a co-owner (such as using an apartment
own interest. Thus, where the suit is for the benefit of
house as a dwelling place without paying rent), or in a
plaintiff alone who claims to be the sole owner and entitled
destructive way, prejudices the interest of the co-
to the possession of the litigated property, and not for the
ownership, and ultimately those of the other co-owners.
co-ownership, the action should be dismissed (Adlawan v. sold and the proceeds divided equally between them. To
Adlawan, Ibid.) this extent and from then on, respondent should be held
liable for monthly rentals, until he and his family vacate.’’
It has been held, however, that while Article 487 now (Aguilar v. Court of Appeals, 45 SCAD 564, 227 SCRA 472
allows a suit by a co-owner, all the co-owners are necessary [1993])
and proper parties. By the same token, it is logical that a
tenant, in order to establish his status as such, must implead Navarro v. Escobido, 2009
all the pro indiviso co-owners. Were the courts to permit
an action in ejectment to be maintained by a person having Glenn and Karen Go are effectively co-owners of
merely an undivided interest, a judgment in favor of the Kargo Enterprises and the properties registered
defendant would not be conclusive against the other co- under this name; hence, both have an equal right
owners not parties to the suit. The purpose of the rule is to to seek possession of these properties. Applying
prevent multiplicity of suits. (Arcelona v. Court of Appeals, Article 484 of the Civil Code, which states that "in
87 SCAD 539, 280 SCRA 20 [1997]) default of contracts, or special provisions, co-
ownership shall be governed by the provisions of
(2) Against strangers or a co-owner. — The action this Title", we find further support in Article 487 of
may be brought not only against strangers but even against the Civil Code that allows any of the co-owners to
a co-owner in a proper case. It contemplates all actions for bring an action in ejectment with respect to the co-
the recovery of possession and ownership including actions owned property.
to quiet title.
Plasabas v. CA, 2009
The only purpose of an action against a co-owner who takes
exclusive possession and asserts exclusive ownership of the Article 487 of the Civil Code provides that any one
property is to obtain recognition of the co-ownership. The of the co-owners may bring an action for
plaintiff cannot seek exclusion of the defendant from the ejectment. The article covers all kinds of actions for
property because as co-owner he has a right of possession. the recovery of possession, including an accion
The plaintiff cannot recover any material or determinate publiciana and a reivindicatory action. A co-owner
part of the property. (De Guia v. Court of Appeals, 413 may file suit without necessarily joining all the
SCRA 114 [2003]) other co-owners as co-plaintiffs because the suit is
deemed to be instituted for the benefit of all. Any
(3) Binding effect of adverse decision. — An judgment of the court in favor of the plaintiff will
adverse decision in the action is not necessarily res judicata benefit the other co-owners, but if the judgment is
with respect to the other co-owners not being parties to the adverse, the same cannot prejudice the rights of the
action (there is no mutual representation between the co- unimpleaded co-owners.
owners) but they are bound where it appears that the action
was instituted in their behalf with their express or implied Adlawan v. Adlawan, 2006
consent, or where their rights in the co-ownership are
derived from the title of their predecessors in interest found A co-owner may bring such an action without the
by the court to be invalid or inexistent. Thus, where the necessity of joining all the other co-owners as co-
deceased father was not the owner of the land inherited, the plaintiffs because the suit is presumed to have been
children cannot be considered as co-heirs or co-owners. (see filed to benefit his co-owners. It should be stressed,
Santiago v. J.M. Tuazon & Co., Inc., 110 Phil. 16 [1960]; see however, that where the suit is for the benefit of
Resuena v. Court of Appeals, 454 SCRA 42 [2005]) the plaintiff alone who claims to be the sole owner
and entitled to the possession of the litigated
(4) Where co-ownership deemed terminated. — In property, the action should be dismissed
a case, petitioner co-owner filed an action to compel the
sale of the property owned in common under Article 498. It De Guia v. CA, 2003
was held: “Since petitioner has decided to enforce his right
in court to end the co-ownership of the house and lot, and We rule that a co-owner may file an action for
respondent has not refuted the allegation that he has been recovery of possession against a co-owner who
preventing the sale of the property by his continued takes exclusive possession of the entire co-owned
occupancy of the premises, justice and equity demand that property. However, the only effect of such action is
respondent and his family vacate the property so that the a recognition of the co-ownership. The courts
sale can be effected immediately. In fairness to petitioner, cannot proceed with the actual partitioning of the
respondent should pay rental of P1,200.00 per month, with co-owned property. Thus, judicial or extra-judicial
legal interest from the time the trial court ordered him to partition is necessary to effect physical division of
vacate for the use and enjoyment of the other half of the the FISHPOND between ABEJO and DE GUIA. An
property belonging to petitioner. action for partition is also the proper forum for
accounting the profits received by DE GUIA from
When petitioner filed an action to compel the sale of the the FISHPOND. However, as a necessary
property, and the trial court granted the petition, the co- consequence of such recognition, ABEJO shall
ownership was deemed terminated and the right to enjoy exercise an equal right to possess, use and enjoy the
the possession jointly also ceased. Thereafter, the continued entire FISHPOND.
stay of respondent and his family in the house prejudiced
the interest of petitioner as the property should have been
k. Different Stories of a House belonging to Different (b) Withdrawal of the thing from the use to which
Owners they wish it to be intended; or
(c) Any other transformation which prejudices the
Art. 490. Whenever the different stories of a house belong condition or substance of the thing or its
to different owners, if the titles of ownership do not specify enjoyment by the others. (see 3 Manresa 465-466.)
the terms under which they should contribute to the
necessary expenses and there exists no agreement on the
Any act of ownership included. — Alteration, as
subject, the following rules shall be observed:
(1) The main and party walls, the roof and the contemplated by law, is not limited to material or physical
other things used in common, shall be preserved changes, such as the construction of a house on a land
at the expense of all the owners in proportion to owned in common (Javier v. Javier, 6 Phil. 473 [1906].),
the value of the story belonging to each; conversion of agricultural land into a residential subdivision
(2) Each owner shall bear the cost of maintaining or memorial park, addition of another story to a building,
the floor of his story; the floor of the entrance, etc., but includes any act of ownership by which a real right
front door, common yard and sanitary works
or encumbrance is imposed on the common property, such
common to all shall be maintained at the expense
of all the owners pro rata; as servitude, registered lease (see Arts. 1647, 1648.), lease of
(3) The stairs from the entrance to the first story real property for more than one year (see Art. 1878[8].),
shall be maintained at the expense of all the mortgage, or pledge.
owners pro rata, with the exception of the owner of
the ground floor; the stairs from the first to the Alienation of the thing by sale or donation of the property
second story shall be preserved at the expense of is an act of strict dominion. But a co-owner may alienate,
all, except the owner of the ground floor and the
owner of the first story; and so on successively. assign, mortgage and even substitute another person in the
(396) enjoyment of his undivided interest in the property (except
when personal rights are involved) because he has full
NOTES: The rules provided above govern the manner the ownership over it. (Art. 493.) The alteration may be
different owners of different stories of a house shall prejudicial or beneficial to the co-ownership, and may have
contribute to the necessary expenses for the preservation or been made in opposition to the express or tacit common
maintenance of the house. agreement, or in accordance with such agreement, or with
the consent of the other co-owners.
They apply if the titles of ownership do not specify the
terms hereof or there exists no agreement on the subject. 2. Necessity of Consent, Form
Article 489 deals with a form of co-ownership, and not a
division. Although there are apparently separate and Reason for requiring consent of other co-owners — The
distinct properties, these are indestructively united for their unanimous consent of all the co-owners, not a mere
ornamentation and use and even for their very existence majority (see Art. 92.) is necessary even if the alteration
with other necessary and essential things which are the would prove beneficial because alteration is an act of
main and party walls, the roof and other things used in ownership and not of mere administration. A sole owner
common. (I Capistrano, op. cit., pp. 446- 447) may change, modify, or transform in any way he pleases
what belongs to him but it is obvious that a co-owner
The above form of ownership must be distinguished from a cannot deal with the thing or right owned in common at
condominium which is a building consisting of several will and invade the proprietary rights of the other co-
stories, each story being divided into different units owned owners.
by different persons who are members or shareholders of a
condominium corporation which may be formed to hold Form of consent — For the purpose of making legal the
title to the common areas and to the management of the alteration of the object of the co-ownership, express consent
project. (see infra.) of the other co-owners is not essential; implied consent
(e.g., alteration was made with the knowledge of the other
l. Alterations of a Co-owned Property co-owners who did not interpose any objection) is
sufficient. The other co-owners having tacitly consented to
Art. 491. None of the co-owners shall without the consent the alteration which was in their power to prevent cannot
of the others, make alterations in the thing owned in subsequently demand its demolition. However, it has been
common, even though benefits for all would result held that the co-owner who made the alteration would
therefrom. However, if the withholding of the consent by have no action against the others for their share of the
one or more of the co-owners is clearly prejudicial to the expenses. Such consent must be express, not presumed, to
common interest, the courts may afford adequate relief. entitle recovery and the burden is upon the co-owner
(397a) seeking reimbursement to prove that such consent was
given. (Javier v. Javier, supra; 3 Manresa 469-470)
1. Definition of Alteration
If consent can be shown even if merely tacit, there seems to
Meaning of alteration — The term has a technical meaning be no reason why the other co-owner should not share in
and does not include any change in the common property. the expenses. There is still consent. Article 491 does not
It contemplates a change made by a co-owner in the thing expressly require express consent.
owned in common which involves:
(a) Change of the thing from the state or essence in 3. Liability
which the others believe it should remain; or
Liability for alteration — The co-owner who makes such others. This is implicit from the provisions of Article 486.
alteration without the express or implied consent of the (Singson v. Veloso, [CA] 32 OG 870)
other co-owners acts in bad faith because he does so as if he
were the sole owner. 2. Vs. Alteration
As a just punishment for his conduct he should: Distinguished from alteration — While alteration is more
(a) Lose what he has spent, or less permanent, acts of administration have transitory
(b) Be obliged to demolish the improvements done, effects (i.e., not of long duration which, of course, is a
and question of fact) and have for their purpose the
(c) Be liable to pay for losses and damages the preservation, preparation and better enjoyment of the thing
community property or the other co-owners may and which do not affect its essence, nature or substance. (2
have suffered. Castan 200-203.)
There shall be no majority unless the resolution is approved Art. 493. Each co-owner shall have the full ownership of his
by the co-owners who represent the controlling interest in part and of the fruits and benefits pertaining thereto, and he
the object of the co-ownership. may therefore alienate, assign or mortgage it, and even
substitute another person in its enjoyment, except when
Should there be no majority, or should the resolution of the personal rights are involved. But the effect of the alienation
majority be seriously prejudicial to those interested in the or the mortgage, with respect to the co-owners, shall be
property owned in common, the court, at the instance of an limited to the portion which may be allotted to him in the
interested party, shall order such measures as it may deem division upon the termination of the co-ownership. (399)
proper, including the appointment of an administrator.
Art. 494. No co-owner shall be obliged to remain in the co-
Whenever a part of the thing belongs exclusively to one of ownership. Each co-owner may demand at any time the
the co-owners, and the remainder is owned in common, the partition of the thing owned in common, insofar as his
preceding provisions shall apply only to the part owned in share is concerned.
common. (398)
Nevertheless, an agreement to keep the thing undivided for
1. Meaning a certain period of time, not exceeding ten years, shall be
valid. This term may be extended by a new agreement.
Meaning of acts of administration and better enjoyment —
Article 492 refers to acts “for the administration and better A donor or testator may prohibit partition for a period
enjoyment’’ or acts of management of the common which shall not exceed twenty years.
property. They contemplate acts or decisions for the
common benefit of all the co-owners and not for the benefit Neither shall there be any partition when it is prohibited by
of only one or some of them. law.
It is an inherent and peculiar feature of co-ownership that No prescription shall run in favor of a co-owner or co-heir
although the co-owners may have unequal shares in the against his co-owners or co-heirs so long as he expressly or
common property, quantitatively speaking, each co-owner impliedly recognizes the co-ownership. (400a)
has the same right, in a qualitative sense, as any of the
1. Nature of Right of co-owner before Bailon-Casilao v. CA, 1988
partition
From the foregoing, it may be deduced that since a co-
(1) Under Article 493. — They are the following: owner is entitled to sell his undivided share, a sale of the
(a) He shall have full ownership of his part, that is, entire property by one co-owner without the consent of the
his undivided interest or share in the common other co-owners is not null and void. However, only the
property; rights of the co-owner-seller are transferred, thereby
(b) He shall have full ownership of the fruits and making the buyer a co-owner of the property
benefits pertaining thereto;
(c) He may alienate, assign or mortgage his ideal Thus, it is now settled that the appropriate recourse of co-
interest or share independently of the other co- owners in cases where their consent were not secured in a
owners; and sale of the entire property as well as in a sale merely of
(d) He may even substitute another person in the undivided shares of some of the co-owners is an action for
enjoyment of his part, except when personal rights PARTITION under Rule 69 of the Revised Rules of Court.
are involved. Neither recovery of possession nor restitution can be
granted since the defendant buyers are legitimate
Before a property owned in common is actually partitioned, proprietors and possessors in joint ownership of the
all that the co-owner has is an ideal or abstract quota or common property claimed [Ramirez v. Bautista, supra].
proportionate share in the entire property. (Engreso v. De
La Cruz, 401 SCRA 217 [2003]) A vendee with knowledge Pamplona v. Moreto, 1980
that the subject property was, at one time, co-owned by the
vendor and other persons, relying on the vendor’s word Petitioners point to the fact that spouses Flaviano Moreto
alone that he was the sole owner of the property, cannot and Monica Maniega owned three parcels of land
rightfully claim that he is a buyer in good faith. The denominated as Lot 1495 having an area of 781 sq. meters,
honesty of intention that constitutes good faith implies Lot 1496 with an area of 1,021 sq. meters, and Lot 4545
freedom from knowledge of circumstances that ought to put with an area of 544 sq. meters. The three lots have a total
a prudent person on inquiry. (Aromin v. Floresca, G.R. No. area of 2,346 sq. meters. Henc, Flaviano Moreto was
160994, July 27, 2006.) entitled to one-half pro-indiviso of the entire land area or
1,173 sq. meters as his share, he had a perfect legal and
(2) Legal rights of redemption. — A co-owner is given the lawful right to dispose of 781 sq. meters of his share to the
legal right of redemption in case the shares of all the other Pamplona spouses. Indeed, there was still a remainder of
co-owners or any of them are sold to a third person. The some 392 sq. meters belonging to him at the time of the
share of a co-owner may be attached. (Cadag v. Trinanes, sale.
[C.A.] 40 O.G., 4th Supp. [No. 8], p. 324) Redemption by a
co-owner does not terminate the co-ownership nor give The title may be pro-indiviso or inchoate but the moment
him title to the entire property subject of the co-ownership. the co-owner as vendor pointed out its location and even
(Cruz v. Leis, 122 SCAD 693, 327 SCRA 570 [2000]) indicated the boundaries over which the fences were to be
erected without objection, protest or complaint by the other
(3) Renunciation of interest. — A co-owner may exempt co-owners, on the contrary they acquiesced and tolerated
himself from the obligation to contribute to the expenses of such alienation, occupation and possession, We rule that a
preservation of the thing or right owned in common and to factual partition or termination of the co-ownership,
the taxes by renouncing so much of his interest as may be although partial, was created, and barred not only the
equivalent to his share of the expenses and taxes. (Art. 488; vendor, Flaviano Moreto, but also his heirs, the private
see Arts. 485, 486, 492, 494) respondents herein from asserting as against the vendees-
petitioners any right or title in derogation of the deed of
Where personal rights are involved sale executed by said vendor Flaviano Moreto.
A co-owner may substitute another in the enjoyment of his
undivided interest in the co-ownership except when Del Campo v. CA, 2001
personal rights are involved.
We are aware of the principle that a co-owner cannot
The term “personal right’’ is used in Article 493 in its real rightfully dispose of a particular portion of a co-owned
meaning and not in its legal or technical sense as the property prior to partition among all the co-owners.
opposite of real right. It means a right which cannot be However, this should not signify that the vendee does not
transferred because it affects the personal relations of the acquire anything at all in case a physically segregated area
co-owners with one another. Thus, in the co-ownership of a of the co-owned lot is in fact sold to him.
house belonging to the children of the deceased owner and
used by them as family residence, a co-owner should not be In the case of Vda. de Cabrera vs. Court of Appeals, we had
allowed without the consent of the others, to substitute a occasion to hold that where the transferees of an undivided
complete stranger in the common use of the house. portion of the land allowed a co-owner of the property to
occupy a definite portion thereof and had not disturbed the
A co-owner may lose his personal right to others, as by same for a period too long to be ignored, the possessor is in
prescription thereof by a co-owner. (Consignado v. Court of a better condition or right than said transferees. (Potior est
Appeals, 207 SCRA 297 [1992]; Gapacan v. Omipet, G.R. condition possidentis). Such undisturbed possession had the
No. 148943, Aug. 15, 2002) effect of a partial partition of the co-owned property which
entitles the possessor to the definite portion which he
occupies. Conformably, petitioners are entitled to the extinctive or acquisitive prescription has set in against Tirso
disputed land, having enjoyed uninterrupted possession and other compulsory heirs in favor of the Cagampang
thereof for a total of 49 years up to the present. spouses because effective repudiation had not timely been
made against the former. As aptly put by the appellate
2. Right to Demand Partition court, the repudiation which must be clear and open as to
amount to an express disavowal of the co-ownership
Art. 494. No co-owner shall be obliged to remain in the co- relation happened not when the deeds of absolute sale were
ownership. Each co-owner may demand at any time the executed in 1939, as these could not have amounted to a
partition of the thing owned in common, insofar as his clear notice to the other heirs, but in 1961 when the
share is concerned. Cagampang spouses refused upon written demand by Tirso
for the partition and distribution of the intestate estate of
Nevertheless, an agreement to keep the thing undivided for Don Fabian. Since then, Tirso was deemed apprised of the
a certain period of time, not exceeding ten years, shall be repudiation by the Cagampang spouses.
valid. This term may be extended by a new agreement.
The records show that Tirso's cause of action has not
A donor or testator may prohibit partition for a period prescribed as he instituted an action for partition in 1970 or
which shall not exceed twenty years. only nine years after the considered express repudiation.
Besides, acquisitive prescription also does not lie against
Neither shall there be any partition when it is prohibited by Tirso even if we consider that a valid express repudiation
law. was indeed made in 1961 by the Cagampang spouses since
in the presence of evident bad faith, the required
No prescription shall run in favor of a co-owner or co-heir extraordinary prescription period of 30 years has not yet
against his co-owners or co-heirs so long as he expressly or lapsed, counted from said considered repudiation. Such
impliedly recognizes the co-ownership. (400a) would still be true even if the period is counted from the
time of the death of Don Fabian when the Cagampang
i. Partition spouses took exclusive possession of the subject properties.
The concurrence of the foregoing elements was not NOTES: Article 495 denies to a co-owner the right to
established herein. For one, Alejandro did not have adverse demand a physical or material division of a thing which is
and exclusive possession of the property, as, in fact, the essentially indivisible (e.g., car, piano) when to do so could
other co-owners had continued to possess it, with Alejandro render it unserviceable for the use for which it is intended.
It does not prevent the termination of the co-ownership The Statute of Frauds does not apply to partition because it
such as the assignment of the thing to one of them or the is not legally deemed a conveyance or a sale of property (see
sale of the thing and the distribution of the proceeds as Art. 1403[2, a].) resulting in change of ownership but
provided in Article 498. simply a segregation and designation of that part of the
property which belongs to each of the co-owners. (Vda. de
vi. Action for Partition (Art. 496) Espina v. Abaya, 196 SCRA 312 [1991]; Pada-Kilario v.
Court of Appeals, 118 SCAD
Art. 496. Partition may be made by agreement between the 427, 322 SCRA 481 [2000]) Partition is, therefore, valid and
parties or by judicial proceedings. Partition shall be enforceable although made orally where no third persons
governed by the Rules of Court insofar as they are are involved.
consistent with this Code. (402)
On general principle, independent and in spite of the
NOTE: There are 2 main issue in an action for partition; Statute of Frauds, courts of equity have enforced oral
first, the determination of the existence of the co- partition when it has been completely or partly performed.
ownership and, second, how to partition the co-owned Thus, it has been held or stated in a number of cases
property. involving an oral partition under which the parties went
into possession, exercised acts of ownership, or otherwise
Ocampo v. Ocampo, 2004 partly performed the partition agreement, that equity will
confirm such partition and in a proper case, decree title in
Since the original Complaint was an action for partition, accordance with the possession in severalty. They are
this Court cannot order a division of the property, unless it estopped to question title to portion allotted to another
first makes a determination as to the existence of a co- party. (Maglucot-Aw v. Maglucot, 329 SCRA 78 [2000])
ownership. The settlement of the issue of ownership is the
first stage in an action for partition. This action will not lie Maglucot-Aw v.
if the claimant has no rightful interest in the subject Maglucot, 2000
property.
The validity of an oral partition is already well-settled. In
Petitioners, however, presented absolutely no proof of Espina vs. Abaya, we declared that an oral partition is valid.
ownership of their predecessors-in-interest. In insisting that In Hernandez vs. Andal, reiterated in Tan vs. Lim, this
it was so transferred and thus co-owned, the former rely on Court has ruled, thus:
the Acknowledgment of Co-ownership executed by Fidela, On general principle, independent and
their eldest sibling. in spite of the statute of frauds, courts of
equity have enforce oral partition when
On the other hand, Belen clearly traced the basis of her it has been completely or partly
alleged sole ownership of the property and presented performed.
preponderant proof of her claim.
It has been previously held that a co-owner, who, though
Reyes-De Leon v. Del not a party to a partition accepts the partition allotted to
Rosario, 2004 him, and holds and conveys the same in severalty, will not
be subsequently permitted to avoid partition. It follows that
The question of validity or nullity of the deed of sale, as a party to a partition is also barred from avoiding partition
well as the claim for damages, is necessarily and logically when he has received and held a portion of the subdivided
intertwined with the partition case. The issue of ownership land especially in this case where respondents have enjoyed
or co-ownership, to be more precise, must first be resolved ownership rights over their share for a long time.
in order to effect a partition of properties. This should be
done in the action for partition itself and not on a separate viii. Participation of Creditors and
case. Assignees
To split the proceedings into declaration of nullity of the Art. 497. The creditors or assignees of the co-owners may
deed of sale and trial for the partition case, or to hold in take part in the division of the thing owned in common and
abeyance the partition case pending resolution of the object to its being effected without their concurrence. But
nullity case would result in multiplicity of suits, duplicitous they cannot impugn any partition already executed, unless
procedure and unnecessary delay, as the lower court there has been fraud, or in case it was made
observed. The conduct of separate trials of the parties' notwithstanding a formal opposition presented to prevent
respective claims would entail a substantial duplication of it, without prejudice to the right of the debtor or assignor to
effort and time not only of the parties but also of the courts maintain its validity. (403)
concerned. On the other hand, it would be in the interest of
justice if the partition court hears all the actions and NOTES:
incidents concerning the properties subject of the partition
in a single and complete proceeding (1) Scope of “creditors’’ and “assignees.’’ — In view of the
existing rights and interests of creditors and assignees of the
vii. Application of the Statute of co-owners in the common property, they are given the
Frauds right to participate in the partition.
(a) As the law does not distinguish, the term (c) They cannot impugn a partition already
“creditors,’’ as used on the provision, includes all executed or implemented unless:
kinds of creditors, whether preferred or ordinary, 1) There has been fraud, whether or not
provided they became so during the existence of notice was given, and whether or not
the co-ownership, and not before or after its formal opposition was presented; or
formation for then it cannot be said that they have 2) The partition was made
interests that could be affected by the partition. notwithstanding that formal opposition
(see 3 Manresa 527-529.) was presented to prevent it, even if there
has been no fraud.
(b) The term “assignees’’ refers to transferees of the
interests of one or more of the co-owners. If the The debtor or assignor (co-owner or former co-owner) has
sale covers the entire share of a co-owner and there always the right to show the validity of the partition.
has been a delivery, the buyer takes the place of
the co-owner who loses all interest in the co- ix. Dealings with Third Persons
ownership, and, of course, has no right to take any
part in the partition of the property. It would be a. Sale of Indivisible thing
absurd to say that after such conveyance the co-owned to a third person
former co-owner could, by agreement with the
other part owners, make a partition of the property Art. 498. Whenever the thing is essentially indivisible and
in which he had no interest that would be binding the co-owners cannot agree that it be allotted to one of
upon the buyer. them who shall indemnify the others, it shall be sold and its
proceeds distributed. (404)
Thus, in a case where X, a co-owner, sold his
undivided share in two parcels of land to P, NOTES: Although the thing owned in common being
plaintiff, with a right of repurchase within one essentially indivisible (e.g., car) cannot be physically
year, but before the expiration of the year, X and Y, divided (see Art. 495.), the co-ownership may nevertheless
the other co-owner, made a judicial partition of the be terminated in accordance with the above provision
lands in question which were adjudicated to Y, it pursuant to the rule in Article 494 (par. 1.) by adjudication
was held that the partition made between X and Y of the thing to one of the co-owners who shall indemnify
did not affect the rights of P who acquired an the others or by its sale with the proceeds thereof divided
undivided half interest on the two parcels of land among the co-owners. The sale may be public or private,
upon failure of X to repurchase within the and the purchaser may be a co-owner or a third person.
stipulated period. (Lopez v. Ilustre, 5 Phil. 567
[1906]; see Art. 493.) Note that the sale shall be resorted to only when the right
to partition the property is invoked by any of the co-owners
However, if there has been no delivery yet of the but because of the nature of the property it cannot be
interest conveyed (so the assignee has only a divided without prejudice to the co-owners and the co-
personal right against the co-owner), or the owners cannot agree that the entire property be allotted or
conveyance is not total (so the assignor remains a assigned to one of them upon reimbursement of the shares
co-owner), then both the assignor, as co-owner, of the other co-owners.
and the assignee, as such, have a right to participate
in the partition. There is nothing to prevent the co-owners of an essentially
indivisible property from effecting partition as provided in
(2) Right to notice of partition. — The law does not Article 498. Under the Rules of Court, where real estate
expressly require that previous notice of the proposed cannot be divided without great prejudice to the interests of
partition be given to the creditors and assignees. But as they the parties, the court may order it assigned to one of them,
are granted the right to participate in the partition, they or sold at public sale.
have also the right to be notified thereof. In the absence of
notice, the partition will not be binding on them. Thus, in a b. Rights of third persons
case, where an extrajudicial partition was made without before partition
notice to a creditor-bank, the Supreme Court remanded the
case to the lower court in order to permit the bank to file Art. 499. The partition of a thing owned in common shall
the objections it may deem convenient in accordance with not prejudice third persons who shall retain the rights of
Article 497. (De Santos v. Bank of Phil. Islands, 58 Phil.784 mortgage, servitude, or any other real rights belonging to
[1933]) them before the division was made. Personal rights
pertaining to third persons against the co-ownership shall
(3) Right to object to or impugn partition. — The following also remain in force, notwithstanding the partition. (405)
rules may be given:
(a) If no notice is given, the creditors or assignees NOTES:
may question the partition already made;
(b) If notice is given, it is their duty to appear and (1) “Third persons,’’ as used in Article 499, refers to all those
make known their position; they may concur with with real rights, such as mortgage and servitude over the
the proposed partition or object to its being thing owned in common or with personal rights against the
effected; and co-owners who had no participation whatever in the
partition.
(2) “Real rights’’ and “personal rights’’ are used in their
accepted legal meaning. (see Art. 493.) Such rights of third
persons existing before the division was made are retained
by them or remain in force notwithstanding the partition.
NOTES:
Art. 503. The following are of private ownership: SECTION 4. — Subterranean Waters
(1) Continuous or intermittent waters rising on
lands of private ownership, while running through Art. 512. Only the owner of a piece of land, or another
the same; person with his permission, may make explorations thereon
(2) Lakes and lagoons, and their beds, formed by for subterranean waters, except as provided by the Mining
nature on such lands; Law.
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they Explorations for subterranean waters on lands of public
remain within the boundaries; dominion may be made only with the permission of the
(5) The beds of flowing waters, continuous or administrative authorities. (417a)
intermittent, formed by rain water, and those of
brooks, crossing lands which are not of public Art. 513. Waters artificially brought forth in accordance with
dominion. the Special Law of Waters of August 3, 1866, belong to the
person who brought them up. (418)
In every drain or aqueduct, the water, bed, banks and
floodgates shall be considered as an integral part of the land Art. 514. When the owner of waters artificially brought to
or building for which the waters are intended. The owners of the surface abandons them to their natural course, they shall
lands, through which or along the boundaries of which the become of public dominion. (419)
aqueduct passes, cannot claim ownership over it, or any right
to the use of its bed or banks, unless the claim is based on SECTION 5. — General Provisions
titles of ownership specifying the right or ownership
claimed. (408) Art. 515. The owner of a piece of land on which there are
defensive works to check waters, or on which, due to a
change of their course, it may be necessary to reconstruct Article 530. Only things and rights which are susceptible of
such works, shall be obliged, at his election, either to make being appropriated may be the object of possession. (437)
the necessary repairs or construction himself, or to permit
them to be done, without damage to him, by the owners of 1. Concept
the lands which suffer or are clearly exposed to suffer injury.
(420) Article 523. Possession is the holding of a thing or the
enjoyment of a right. (430a)
Art. 516. The provisions of the preceding article are
applicable to the case in which it may be necessary to clear a NOTES: The definition of the term given by Article 523 is not
piece of land of matter, whose accumulation or fall may complete. As a distinct legal concept, possession is the holding of a
obstruct the course of the waters, to the damage or peril of thing or the enjoyment of a right with the intention to possess in
one’s own right. Article 523 presumes from the fact of possession
third persons. (421)
the intention to possess.
Art. 517. All the owners who participate in the benefits 2. Vs. Ownership
arising from the works referred to in the two preceding
articles, shall be obliged to contribute to the expenses of Possession and ownership are distinct legal concepts. There
construction in proportion to their respective interests. is ownership when a thing pertaining to one person is
Those who by their fault may have caused the damage shall completely subjected to his will in a manner not prohibited
be liable for the expenses. (422) by law and consistent with the rights of others. Ownership
confers certain rights to the owner, among which are the
Art. 518. All matters not expressly determined by the right to enjoy the thing owned and the right to exclude
provisions of this Chapter shall be governed by the special other persons from possession thereof.
Law of Waters of August 3, 1866, and by the Irrigation Law.
(425a) On the other hand, possession is defined as the holding of a
thing or the enjoyment of a right. Literally, to possess
NOTE: See PD 1067 or the Water Code of the Philippines means to actually and physically occupy a thing with or
without right.
V. POSSESSION
Possession may be had in one of two ways: possession in the
a. POSSESSION AND KINDS (Arts. 523-530) concept of an owner and possession of a holder. A person
may be declared owner but he may not be entitled to
Article 523. Possession is the holding of a thing or the possession. The possession may be in the hands of another
enjoyment of a right. (430a) either as a lessee or a tenant. A person may have
improvements thereon of which he may not be deprived
Article 524. Possession may be exercised in one's own name without due hearing. He may have other valid defenses to
or in that of another. (413a) resist surrender of possession. A judgment for ownership,
therefore, does not necessarily include possession as a
Article 525. The possession of things or rights may be had in necessary incident. (Heirs of R. Soriano v. Court of
one of two concepts: either in the concept of owner, or in Appeals,153 SCAD 86, 363 SCRA 87 [2001].) In fine, just as
that of the holder of the thing or right to keep or enjoy it, possession is a definite proof of ownership, neither is non-
the ownership pertaining to another person. (432) possession inconsistent with ownership. (Medina vs.
Greenfield Dev. Corp., 443 SCRA 150 [2004])
Article 526. He is deemed a possessor in good faith who is
not aware that there exists in his title or mode of acquisition 3. Elements
any flaw which invalidates it.
Possession in law has thus three elements or requisites.
He is deemed a possessor in bad faith who possesses in any
case contrary to the foregoing. (1) There must be holding or control of a thing or
right. — Except in the two cases mentioned in Article 537,
Mistake upon a doubtful or difficult question of law may be possession always implies the element of corpus or
the basis of good faith. (433a) occupation (see Art. 531, whether in one’s own name or in
that of another. (Art. 524.) But it is necessary that there
Article 527. Good faith is always presumed, and upon him should be such occupancy or there is no possession. (Repide
who alleges bad faith on the part of a possessor rests the v. Astuar, 2 Phil. 757 [1903]) To put it in another way, there
burden of proof. (434) must be possession in fact.
Article 528. Possession acquired in good faith does not lose (2) The holding or control must be with intention
this character except in the case and from the moment facts to possess. — Clearly, possession involves a state of mind on
exist which show that the possessor is not unaware that he the part of the possessor whereby he intends to exercise,
possesses the thing improperly or wrongfully. (435a) and, as a consequence of which, he does exercise a right of
possession, whether the right be legal or otherwise; and
Article 529. It is presumed that possession continues to be while the intention and the will to possess may be, and
enjoyed in the same character in which it was acquired, until usually are inferred from the fact that the thing in question
the contrary is proved. (436) is under the apparent power and control of the alleged
possessor, nevertheless, the existence of the animus
possidendi is subject to contradiction, and may be rebutted
by evidence which tends to prove that the person under (2) The possessor’s relation to the world. — Aside
whose power and control the thing in question appears to from the power of control over the object, the possessor
be, does not in fact exercise such power of control and does must also have the ability to exclude others from his
not intend to do so. (US v. Tan Tayco, 12 Phil. 739 [1909]) possession. A customer who holds and examines a piece of
jewelry in the presence of the seller may be said to have
Persons who have no legal wills, such as insane and only custody, not possession, of the jewelry because he lacks
demented persons cannot acquire possession as they are full control over it and has also no intention to exclude
incapable of understanding or knowing the import of their others. No fixed rule can be laid down as to the degree of
actions, and therefore, the animus possidendi cannot be control or amount of the power to exclude is necessary to
present. constitute occupancy. The resolution of the question would
depend much on the circumstances of the particular case.
(3) It must be in one’s own right. — Possession
may be held by a person in his own name or in that of 5. Forms or degrees
another (Art. 524) i.e., by the possessor himself in his own
name or by an agent in the name of the principal. In the They may be as follows:
first case, the possession may be in the concept of owner or
in the concept of a holder of the thing (e.g., lessee) with (1) Possession without any title whatever. — This
ownership pertaining to another. (Art. 518.) In the second is mere holding or possession without any right or title at
case, the possession is exercised by the owner or holder, as all, such as that of a thief or squatter;
principal, thru his agent. In both cases, the possession of the
owner or holder is by virtue of his right as such owner or (2) Possession with a juridical title. — The
holder. Strictly speaking, the agent has no possession in law possession is predicated on a juridical relation existing
because it is not by virtue of his own right. between the possessor and the owner (or one acting in his
behalf) of the thing but not in the concept of owner such as
Note: Under Article 430 of the old Civil Code, there was a that of a lessee, usufructuary, depositary, agent, pledgee,
distinction between natural possession and civil possession. and trustee;
The first was there defined as the holding of a thing or the
enjoyment of a right, and the second, as such holding or (3) Possession with a just title. — The possession of
enjoyment coupled with the intention to make the thing or an adverse claimant whose title is sufficient to transfer
right as one’s own. Therefore, a thief’s possession, which is ownership but is defective such as when the seller is not the
wrongful or criminal was considered a civil possession. true owner or could not transmit his rights thereto to the
Moreover, the old Code made no practical application of the possessor who acted in good faith; and
distinction on the succeeding articles on possession.
(4) Possession with a title in fee simple. —
In view of these considerations, and of the fact that it has Possession derived from the right of dominion or possession
no practical value, the distinction has been abolished. (I of an owner. This is the highest degree of possession.
Capistrano, op. cit., p. 470) So, now, possession is
considered under one concept in place of the two concepts 6. Nature
before.
Possession may be viewed as an act, as a fact or condition,
Yu v. Pacleb, 2009 or as a right.
It is undisputed that the Langcaan Property is in (1) As an act. — It is simply the holding of a thing
the possession of Ramon, the son of the registered or the enjoyment of a right with the intention to possess in
owner. Regardless of the representations given by one’s own right.
the latter, this bare fact alone should have made
petitioner spouses suspicious as to the veracity of 2) As a fact. — When there is holding or
the alleged title of their vendor. enjoyment, then possession exists as a fact. It is the state or
condition of a person having property under his control,
Based on the foregoing, therefore, petitioner with or without right.
spouses cannot be considered as innocent
purchasers in good faith. (3) As a right. — It refers to the right of a person to
that holding or enjoyment to the exclusion of all others
4. Relations created having better right than the possessor. (Art. 533.) It may be:
(a) Jus possidendi or right to possession which is
Possession is characterized by two relations. incidental to and included in the right of
ownership; or
(1) The possessor’s relation to the property itself. — (b) Jus possessionis or right of possession
This assumes that the possessor exercises some degree of independent of and apart from the right of
control more or less effective over the object. As Holmes ownership.
wrote: “If there were only one other man in the world, and
he was safe under lock and key in jail, the person having Sometimes, possession is used to refer to the thing possessed
the key would not possess the swallows that flew over the — that which one owns, occupies, or controls.
prison.’’ (Common Law, p. 216)
7. Possession as a fact his will. (Somodio v. Court of Appeals, 54 SCAD 374, 236
SCRA 307 [1994])
(1) Benefits to possessor. — The fact of possession
gives rise to certain rights and presumptions. Thus, a (2) There are qualifications to this rule, and one of
possessor has a right to be respected in his possession, and them is that relating to the size of the tract in controversy
should he be disturbed therein, he shall be protected in or with reference to the portion actually in possession of the
restored to said possession. (Art. 539.) claimant.
(a) “Mere planting of a sign or symbol of
A possessor has in his favor the presumption that his possession cannot justify a Magellan-like claim of
possession is lawful — that he is the owner or has been dominion over an immense tract of territory.’’
given the right of possession by the owner. He who would (Lasam v. Director of Lands, 65 Phil. 367 [1938])
disturb a possessor must show either ownership or a better (b) Neither does mere cultivation of a land
possessory right. constitute possession under a claim of ownership.
(Republic v. Court of Appeals, 167 SCRA 150
(2) As proof of ownership. — Possession is not a [1988])
definitive proof of ownership nor is non-possession (c) Similarly, mere fact of declaring
inconsistent therewith. (Heirs of G. Bofill v. Court of uncultivated land for taxation purposes and visiting
Appeals, 56 SCAD 73, 237 SCRA 451 [1994]) Possession, it every once in a while has been held not to
however, may create ownership either by occupation (Art. constitute acts of possession. (Ramirez v. Director
712) or by acquisitive prescription. (Arts. 1132, 1134, 1137) of Lands, 60 Phil. 114 [1934])
(d) The doctrine does not also apply where
8. Classes of possession the possession is wrongful or the part allegedly
constructively possessed is in the adverse
Possession under the Civil Code is classified as follows: possession of another. (Rosales v. Director of Lands,
(1) Possession in one’s own name or in the name of 51 Phil. 302 [1927]; Ramos v. Director of Lands,
another (Art. 524.); supra.; Sarmiento v. Lesaca, 108 Phil. 900 [1960])
(2) Possession in the concept of owner or
possession in the concept of holder (Art. 525.); and Republic v. Jacob, 2006
(3) Possession in good faith or possession in bad
faith. (Art. 526.) Indeed, the law speaks of "possession and occupation."
Possession is broader than occupation because it includes
9. Extent constructive possession. Unless, therefore, the law adds the
word "occupation," it seeks to delimit the all-encompassing
Possession may also be actual or constructive. effect of constructive possession. Taken together with the
words "continuous," "exclusive" and "notorious," the word
(1) Actual possession is occupancy in fact of the "occupation" seems to highlight the facts that for an
whole or at least substantially the whole. With reference to applicant to qualify, her possession of the property must not
land, it consists in the manifestation of acts of dominion be a mere fiction.
over it of such a nature as a party would naturally exercise
over his property. (Ramos v. Director of Lands, 39 Phil. 175 Sarmiento v. Lesaca, 1960
[1918]) Literally, to possess means to actually and physically
occupy a thing with or without a right. Has the vendor complied with this express commitment?
she did not. As provided in Article 1462, the thing sold shall
(2) Constructive possession, on the other hand, is be deemed delivered when the vendee is placed in the
occupancy of part in the name of the whole under such control and possession thereof, which situation does not
circumstances that the law extends the occupancy to the here obtain because from the execution of the sale up to the
possession of the whole. present the vendee was never able to take possession of the
lands due to the insistent refusal of Martin Deloso to
10. Doctrine of constructive possession surrender them claiming ownership thereof. And although
it is postulated in the same article that the execution of a
Possession in the eyes of the law does not mean that a man public document is equivalent to delivery, this legal fiction
has to have his feet on every square meter of ground before only holds true when there is no impediment that may
it can be said that he is in possession. (Ramos v. Director of prevent the passing of the property from the hands of the
Lands, supra) vendor into those of the vendee.
(1) The general rule is that the possession and 11. Concept of Possession and Occupation in Registration
cultivation of a portion (e.g., 1/4) of a tract of land under Cases
claim of ownership of all is constructive possession of all.
Thus, where the petitioner took possession of the land by Malabanan v. Republic, 2009
planting coconut, Ipil-ipil and fruit trees, and two years
later, he started the construction of a building thereon, it The petitioners failed to present sufficient evidence to
was held immaterial that the building was unfinished and establish that they and their predecessors-in-interest had
that he left the place for employment reasons and visited been in possession of the land since June 12, 1945. Without
the property only intermittently. It is sufficient that the satisfying the requisite character and period of possession -
possessor was able to subject the property to the action of possession and occupation that is open, continuous,
exclusive, and notorious since June 12, 1945, or earlier - the possession. On the other hand, a sales agent who
land cannot be considered ipso jure converted to private misappropriates or fails to return to his principal the
property even upon the subsequent declaration of it as proceeds of things he was commissioned or authorized to
alienable and disposable. sell is liable for estafa under Article 315(1, b) of the Revised
Penal Code. (see People v. Locsin, 57 Phil. 325 [1932];
12. How exercised Guzman v. Court of Appeals, 99 Phil. 703 [1956]; Chua-
Burce v. Court of Appeals, 331 SCRA 1 [2000])
Art. 524. Possession may be exercised in one’s own name or
in that of another. (431a) Chua-Burce v. CA, 2000
(2) In the name of another. — When possession is 13. Possession in the concept of owner
in the name of another, the one in actual possession is
without any right of his own, but is merely an instrument Art. 525. The possession of things or rights may be had in
of another in the exercise of the latter’s possession, such as one of two concepts: either in the concept of owner, or in
the possession of an agent, servant, or guard. Possession in that of the holder of the thing or right to keep or enjoy it,
another’s name may be: the ownership pertaining to another person. (432)
(a) Voluntary, when exercised by virtue of an
agreement; or NOTES:
(b) Necessary or legal when exercised by virtue of
law, such as the possession in behalf of Possession in the concept of owner — This takes place
incapacitated persons (see Arts. 1327, 1329.) and when the possessor of a thing or right, by his actions, is
juridical entities. (See Art. 46.) considered or is believed by other people as the owner,
regardless of the good or bad faith of the possessor. It is
The unauthorized voluntary possession by a third person in possession under a claim of ownership or title (en concepto
the name of another shall become effective only after it is de dueño) by one who is the owner himself or one who is
ratified by the latter. (see Art. 1317; 3 Manresa 81-86.) not the owner but claims to be and acts as the owner.
Possession in the name of another may also be:
(a) Physical or material, when the possessor is a 14. Possession in the concept of holder
mere custodian or keeper of the property or funds
received and has no independent right or title to Possession in the concept of holder — This takes
retain or possess the same as against the owner, place when the possessor of a thing or right holds it merely
such as the possession of money received by a teller to keep or enjoy it, the ownership pertaining to another
for the bank; or person. It is possession not under a claim of ownership (or
(b) juridical, when the possession gives the not in the concept of owner), the possessor acknowledging
transferee a right over the thing which the in another a superior right which he believes to be of
transferee may set up against the owner, such as ownership, whether this be true or not (see 3 Manresa 87-
the possession of an agent who receives the 89.) or his belief be right or wrong. (Maglucot-Aw v.
proceeds of sales of goods delivered to him in Maglucot, 329 SCRA 78 [2000]; Carlos v. Republic, 468
agency by his principal. Under the law (Art. 1915, SCRA 709 [2005]) Thus, the usufructuary, depositary,
Civil Code.), an agent can assert against his lessee, pledgee, and the bailee in commodatum possesses
principal an independent right to retain money or with respect to the thing in the concept of holder or non-
goods received in consequence of the agency, as owner. A person declared in a judgment to be the owner
when the principal fails to reimburse him for may not, therefore, be entitled to possession which may be
advances he has made and indemnify him for in the hands of another such as a lessee.
damages suffered without his fault.
A person may be a lessor although he is not the
A receiving teller of a bank who misappropriates the money owner of the property leased. In lease, only the temporary
received by him for the bank is liable not for estafa but for use and enjoyment, not the ownership of the property is
qualified theft, on the theory that being a mere bank transferred.
employee, his possession is the possession of the bank.
Being a mere cash custodian, a bank teller has no juridical Carlos v. Republic, 2005
controlled by the evidence as to the conduct and
Petitioner herein acknowledges the sale of the property to outward acts by which alone the inward motive
Ususan Development Corporation in 1996 and in fact may, with safety, be determined. So it is that
promised to deliver the certificate of title to the corporation “honesty of intention,’’ “the honest lawful intent,’’
upon its obtention. Hence, it cannot be said that her which constitutes good faith, implies a “freedom
possession since 1996 was under a bona fide claim of from knowledge and circumstances which ought to
ownership. Under the law, only he who possesses the put a person on inquiry,’’ and so it is that proof of
property under a bona fide claim of ownership is entitled to such knowledge which overcomes the presumption
confirmation of title. of good faith to the contrary.
15. Possessor in good faith; bad faith Good faith or the want of it, is not a visible,
tangible fact that can be seen or touched but rather
Art. 526. He is deemed a possessor in good faith who is not a state or condition of mind which can only be
aware that there exists in his title or mode of acquisition any ascertained by actual or fancied tokens or signs.
flaw which invalidates it. (Leung Yee v. Strong Machinery Co., 37 Phil. 644
[1918]) An individual’s personal good faith is a
He is deemed a possessor in bad faith who possesses in any concept of his own mind and, therefore, may not
case contrary to the foregoing. conclusively be determined by his protestations
alone. (Heirs of M. Cabal v. Spouses L. and R.
Mistake upon a doubtful or difficult question of law may be Cabal, G.R. No. 153625, July 31, 2006)
the basis of good faith. (433a)
(2) Essence. — The essence of bona fides
i. Requisites or good faith, therefore, lies in honest belief in the
validity of one’s right, ignorance of a superior
They are the following: claim, and absence of intention to overreach
(1) The possessor has a title or mode of acquisition another (Negrete v. Court of First Instance of
(see Art. 712.); Marinduque, 48 SCRA 113 [1972].), or to defraud
(2) There is a flaw or defect in said title or mode; or to seek an unconscionable advantage. Good faith
and must rest on a colorable right in the possessor
(3) The possessor is unaware or aware of the flaw beyond a mere stubborn belief in one’s title. (see
or defect or believes that the thing belongs or does Baltazar v. Caridad, 17 SCRA 460 [1966].) Applied
not belong to him. to possession, one is considered a possessor in good
faith if he is not aware that there exists in his title
A possessor in good faith becomes a possessor in or mode of acquisition any flaw which invalidates
bad faith from the moment he becomes aware that it. (Art. 526.)
what he believes to be true is not so. (Tacas v.
Tobon, 53 Phil. 356 [1929]) If the flaw is in the title Heirs of M. Cabal v. Spouses L. and R. Cabal, 2006
of the possessor’s predecessor, and affects his own
title, the flaw exists in his own title unless he can It is undisputed that Marcelino built his house on the
sustain his own title independent of that of his disputed property in 1949 with the consent of his father.
predecessor. Marcelino has been in possession of the disputed lot since
then with the knowledge of his co-heirs, such that even
It has been held that a purchaser cannot be before his father died in 1954, when the co-ownership was
considered as being “aware of a flaw which created, his inheritance or share in the co-ownership was
invalidates [his] acquisition of the thing,’’ where already particularly designated or physically segregated.
the alleged flaw, the notice of lis pendens, was Thus, even before Lot G was subdivided in 1976, Marcelino
already being cancelled at the time of the purchase. already occupied the disputed portion and even then co-
(Po Lam v. Court of Appeals, 347 SCRA 86 [2000]) ownership did not apply over the disputed lot. Marcelino is
deemed a builder in good faith at least until the time he was
Po Lam v. CA, 2000 informed by respondents of his encroachment on their
property.
Petitioners cannot be considered as being "aware of a flaw
which invalidates their acquisition of the thing" since the
alleged flaw, the notice of lis pendens, was already being Negrete v. CFI of Marinduque, 1972
ordered cancelled at the time of the purchase. On this
ground alone, petitioners can already be considered buyers It is therefore patent that the land sold by Tito Oriendo to
in good faith the late Igmedio Maderazo is distinct from the land of
plaintiff-appellant Ignacia Negrete as to location,
ii. Concept of good faith boundaries and area. To repeat, the land of plaintiff-
appellant is about nine (9) hectares and located in sitio
(1) A question of intention ascertained by Puting Buhangin, Mogpog. The lot of defendant-appellee is
outward acts. — Good faith or the lack of it is, in only about 3,700 square meters and situated in barrio
the last analysis, a question of intention; but in Puyog, Boac.
ascertaining the intention by which one is actuated
on a given occasion, the courts are necessarily
Hence, not being a possessor in good faith, defendant- (5) Where the lessee continues to occupy
appellee Catalino Maderazo can acquire ownership over the the premises after the period of the lease contract
disputed parcel of land of about nine (9) hectares belonging has already expired as he becomes an usurper with
to plaintiff-appellant only by extraordinary acquisitive no right to legitimately continue in the use and
prescription thru an uninterrupted adverse possession of enjoyment thereof. (Republic v. Diaz, 92 SCRA 535
thirty (30) years (Art 1137, Civil Code of the Philippines). [1979])
Since he occupied the same for only about thirteen (13)
years from 1954 until 1967, when his adverse possession (6) Where the purchaser of land has
was interrupted by the filing of the action for reivindicacion learned of another person’s open, peaceful and
on January 18, 1967 (Art. 1155, Civil Code of the adverse possession of the same, as he is aware of
Philippines), the claim of defendant-appellee is untenable. sufficient fact to warrant an inquiry into the status
of the title to the land. (Manacop, Jr. v. Cansino, 1
Baltazar v. Caridad, 1966 SCRA 572 [1961]; Salvoro v. TaÒega, 87 SCRA 349
[1978]; Republic v. Court of Appeals, 102 SCRA
Appellants cannot be regarded as builders in good faith 331 [1981]) Where the land sold is in the
because they are bound by the 1941 decree of registration possession of a person other than the vendor, the
that obligated their parents and predecessors-in-interest. purchaser must go beyond the certificate of title
Good faith must rest on a colorable right in the builder, and make inquiries concerning the rights of the
beyond a mere stubborn belief in one's title despite judicial actual possessor. Failing in this, the purchaser
adjudication. The fact that in 1959 appellants demolished cannot invoke the light of purchaser in good faith
and replaced their old house with new and bigger ones and cannot acquire a better right than his
cannot enervate the rights of the registered owners. predecessor-in-interest. (Heirs of T. de Leon Vda.
Otherwise, the rights of the latter to enjoy full possession of De Roxas v. Court of Appeals, 422 SCRA
their registered property could be indefinitely defeated by 101[2004].) But the fact mere that a land is
an unsuccessful opponent through the simple subterfuge of peaceably possessed by a person other than the
replacing his old house with a new one from time to time. seller does not make the buyer one in bad faith
where he relied in good faith for value upon the
iii. Concept of bad faith certificate of title of the seller. (Benin v. Tuazon, 57
SCRA 531 [1974])
Bad faith is, of course, the opposite of good faith. It
does not simply connote bad judgment or (7) Where the purchaser of land has notice
negligence; it imputes a dishonest purpose to do that it is subject to right of repurchase from his
wrong or cause damage. It contemplates a state of vendor (the vendee a retro in the previous sale)
mind affirmatively operating with furtive design or although such right has already lapsed but the title
some motive of self-interest or ill-will for ulterior has not yet been cleared of the encumbrance.
purposes. (see Villanueva v. Sandiganbayan, 42 (Conde v. Court of Appeals, 119 SCRA 245 [1982])
SCAD 562, 223 SCRA 543 [1993])
(8) Where one purchased a land, on the
In the sample cases that follow, after considering certificate of title of which an adverse claim was
the facts and surrounding circumstances, possession previously annotated. (Gardner v. Court of
was held to be in bad faith. Appeals, 131 SCRA 585 [1984]) If an existing claim
or encumbrance is not annotated in the title, the
(1) Where the defendant had always sale must be given effect for the settled doctrine is
believed that the land in question did not belong to that the purchaser in good faith for value of
them. (Javier v. Javier, 6 Phil. 493 [1906]) property covered by a clear certificate of title can
rest assured that his title is perfect and
(2) Where the defendant was present uncontrovertible. (Benin v. Tuazon, supra; see
when her husband entered into the lease contract Carreon v. Agcaoili, 1 SCRA 521 [1961])
and was not ignorant of the defect in her husband’s
alleged prescriptive title when she pretended to As a general rule, where there is nothing in the
take possession thereunder. (Lerma v. De la Cruz, 7 certificate of title to indicate any cloud or vice in
Phil. 581 [1907]) the ownership of property, or any encumbrance
thereon, the purchaser is not required to explore
(3) Where the petitioner acquired his further than what the Torrens title upon its face
interest in the land aware that a litigation indicates in quest for any hidden defect or inchoate
concerning the land was still pending. (Rivera v. right that may subsequently efeat his rights
Moran, 48 Phil. 836 [1926]) thereto. (State Investment House, Inc. v. Court of
Appeals, 69 SCAD 135, 254 SCRA 368 [1996])
(4) Where a purchaser believed that the
seller was the owner of the land sold, which land But the defense of indefeasibility of a certificate of
was owned by another as evidenced by the latter’s title does not extend to a transferee who takes it
Torrens title thereto, in view of the presumptive with notice of the flaws in his transferor’s title or
knowledge of the Torrens title. (J.M. Tuason & Co., the latter’s lack of title, or has knowledge of a prior
Inc. v. Mumar, 25 SCRA 405 [1968]) existing interest which is unregistered at the time
he acquired a right to the property, or is aware of
sufficient facts to induce a reasonably prudent man Art. 528. Possession acquired in good faith does not lose this
to inquire into the status of the title to the property character except in the case and from the moment facts exist
in litigation. If, at all, he only acquires the right which show that the possessor is not unaware that he
which the vendor or mortgagor then had. The rule possesses the thing improperly or wrongfully. (435a)
that a person, be he a buyer or mortgagee, dealing
with property is not required to go beyond what NOTES:
appears on the face of the covering title itself does
not apply to banks. Judicial notice is taken of the Possession which begins in good faith is presumed to
standard practice for banks before approving a continue in good faith until the possessor acquires
loan, to send representatives to the premises of the knowledge of facts showing a defect or weakness in his title.
land offered as collateral. (Valencia v. Jimenez, 11 Phil. 492 [1908])
The Torrens system of land registration cannot be The law speaks of “facts’’ in place of the word “acts’’ in the
used as a means to perpetrate fraud against the old provision, the former being broader than the latter.
rightful owner of real property. Registration, to be Thus, it is immaterial whether the “facts’’ from which bad
effective, must be made in good faith. (Ibid.; faith can be deduced involve acts of the possessor himself or
Bornales v. Intermediate Appellate Court, 166 of some other person or any extraneous evidence. But the
SCRA 519 [1988]; Private Dev. Corp. of the Phils. existence of the facts mentioned in the article must be
v. Court of Appeals, 475 SCRA 591 [2005]) proved.
Heirs of Vda. de Roxas v. CA, 2004 (1) Commencement of bad faith. — Bad faith
begins or good faith is interrupted from the time the
Furthermore, as found by this Court in G.R. No. 118436, the possessor becomes aware “that he possesses the thing
Roxas family has been in possession of the property improperly or wrongfully,’’ not from the time possession
uninterruptedly through their caretaker, Jose Ramirez who was acquired. For instance, if the possessor learned from the
resided on the property. Where the land sold is in the true owner himself the grounds in support of the latter’s
possession of a person other than the vendor, the purchaser adverse claim and he becomes aware that his title is not
must go beyond the certificates of title and make inquiries valid or at least doubtful, he is deemed to have taken
concerning the rights of the actual possessor. Meycauayan possession in bad faith only from that time with all the legal
therefore cannot invoke the right of a purchaser in good consequences arising from such possession. (see Art. 552;
faith and could not have acquired a better right than its Ortiz v. Fuentebella, supra)
predecessor-in-interest. This Court has already rejected
Meycauayan's claim that it was a purchaser in good faith (2) Interruption of good faith. — In the absence of
when it ruled in G.R. No. 118436 that there had been no other facts showing the possessor’s knowledge of defect in
intervening rights of an innocent purchaser for value his title, good faith is interrupted from the receipt or service
involving the lots in dispute. of judicial summons.
Benin v. Tuason, 1974 A possessor in good faith is entitled to the fruits only so
long as his possession is not legally interrupted, and such
16. Presumption of good faith interruption takes place upon service of judicial summons.
(Arts. 544, 1123)
Art. 527. Good faith is always presumed, and upon him who
alleged bad faith on the part of a possessor rests the burden of Suobiron v. CA, 1995
proof. (434)
The trial court held petitioners liable to private respondents
NOTES: for the net produce of the properties in question from the
time the former's possession in good faith was legally
Article 527 establishes the presumption of good faith; it interrupted when they were served summons in connection
does not say that good faith exists, but that it is presumed. with private respondents' complaint for recovery of
possession with damages filed 22 July 1970, docketed as
This presumption is just, because possession is the outward Civil Case No. 8283, at the rate of P1,500.00 per hectare or
sign of ownership. It is to be presumed that the right of the P39,750.00 for 26.5 hectares annually until possession was
possessor is well-founded. This appearance of lawful restored. It may be that petitioners acquired the disputed
possession must be accepted even though it be in reality properties in good faith and had since then occupied the
nothing more than a disguise for bad faith, because this same but such bona fide character of possession ceased
cannot be known with certainty until proved, and because when they were served summons.
every person is presumed to be honest until the contrary is
shown. For this reason, protection is given to the possessor Maneclang v. Baun, 1992
against all other persons, whoever they may be, and hence,
the precept of Article 527 demands proof of bad faith. (US v. The date of service of summons to the City of Dagupan in
Rapiñan, 1 Phil. 294 [1903], citing 4 Manresa 96) Civil Case No. D-1785 is not clear from the record. Its
Answer, however, was filed on 5 November 1965.
17. Interruption of good faith Accordingly, its possession in good faith must be considered
to have lasted up to that date. As a possessor in good faith, it
was entitled to all the fruits of the property and was under
no obligation to pay any rental to the intestate estate of by any person without any power whatever: but in the last
Margarita for the use thereof. Under Article 544 of the Civil case, the possession shall not be considered as acquired until
Code, a possessor in good faith is entitled to the fruits the person in whose name the act of possession was executed
received before the possession is legally interrupted. has ratified the same, without prejudice to the juridical
consequences of negotiorum gestio in a proper case. (439a)
18. Other presumptions on possession
Article 533. The possession of hereditary property is deemed
Art. 529. It is presumed that possession continues to be transmitted to the heir without interruption and from the
enjoyed in the same character in which it was acquired, until moment of the death of the decedent, in case the inheritance
the contrary is proven. (436) is accepted.
19. Susceptibility of possession Article 536. In no case may possession be acquired through
force or intimidation as long as there is a possessor who
Art. 530. Only things and rights which are susceptible of objects thereto. He who believes that he has an action or a
being appropriated may be the object of possession. (437) right to deprive another of the holding of a thing, must
invoke the aid of the competent court, if the holder should
NOTES: refuse to deliver the thing. (441a)
(1) Must be susceptible of being appropriated. — Article 537. Acts merely tolerated, and those executed
Not all things and rights may be the object of possession. To clandestinely and without the knowledge of the possessor of
be the object of possession, the thing or right must be a thing, or by violence, do not affect possession. (444)
susceptible of being appropriated. In other words, only
property may be the object of possession. (see Art. 414.) Article 538. Possession as a fact cannot be recognized at the
same time in two different personalities except in the cases of
(2) Need not be susceptible of prescription. — co-possession. Should a question arise regarding the fact of
Article 1113 provides that “all things which are within the possession, the present possessor shall be preferred; if there
commerce of men are susceptible of prescription, unless are two possessors, the one longer in possession; if the dates
otherwise provided.’’ Article 530 is broader in scope than of the possession are the same, the one who presents a title;
Article 1113. To be susceptible of prescription, the things and if all these conditions are equal, the thing shall be placed
must be within the commerce of men. in judicial deposit pending determination of its possession or
ownership through proper proceedings. (445)
But there are things which can be susceptible of
appropriation, and, therefore, the object of possession 1. Modes of Acquiring Possession
cannot be the object of prescription.
Article 531. Possession is acquired by the material
In other words, there are more things susceptible of occupation of a thing or the exercise of a right, or by the fact
appropriation than there are things within the commerce of that it is subject to the action of our will, or by the proper
men. acts and legal formalities established for acquiring such right.
(438a)
Article 531. Possession is acquired by the material To be considered in possession, one need not have actual or
occupation of a thing or the exercise of a right, or by the fact physical occupation of a thing at all times. There are three
that it is subject to the action of our will, or by the proper ways of acquiring possession, namely:
acts and legal formalities established for acquiring such right. (1) By the material occupation or exercise of a
(438a) right;
(2) By the subjection of the thing or right to our
Article 532. Possession may be acquired by the same person will; and
who is to enjoy it, by his legal representative, by his agent, or
(3) By proper acts and legal formalities established right to deprive another of the holding of a thing, must
for acquiring such right of possession. invoke the aid of the competent court, if the holder should
refuse to deliver the thing. (441a)
The modes of acquiring ownership are provided in Article
712. Villafuerte v. CA, 2005
2. Who acquires possession Article 536 of the Civil Code previously quoted explicitly
provides for the proper recourse of one who claims to be
Article 532. Possession may be acquired by the same person entitled to the possession of a thing. When private
who is to enjoy it, by his legal representative, by his agent, or respondents personally took it upon themselves to evict
by any person without any power whatever: but in the last petitioners from their properties, which act was in clear
case, the possession shall not be considered as acquired until contravention of the law, they became liable "for all the
the person in whose name the act of possession was executed necessary and natural consequences of [their] illegal act."
has ratified the same, without prejudice to the juridical
consequences of negotiorum gestio in a proper case. (439a) 6. Possession by mere tolerance
Article 533. The possession of hereditary property is deemed Persons who occupy the land of another at the latter's
transmitted to the heir without interruption and from the tolerance or permission, without any contract between
moment of the death of the decedent, in case the inheritance them is bound by an implied promise that they will vacate
is accepted. the same upon demand, failing which a summary action for
ejectment is the proper remedy against them. Notably,
One who validly renounces an inheritance is deemed never Anastacia Reyes only allowed petitioners to use and occupy
to have possessed the same. (440) certain portions of the subject property. They admitted
their "use and possession" of these portions of the subject
Article 534. On who succeeds by hereditary title shall not property "had been with the knowledge, consent and
suffer the consequences of the wrongful possession of the tolerance of all the other co-owners." Consequently, after
decedent, if it is not shown that he was aware of the flaws respondent obtained title to the subject property and
affecting it; but the effects of possession in good faith shall withdrew her tolerance later on, petitioners' refusal to
not benefit him except from the date of death of the vacate it rendered their possession thereof unlawful.
decedent. (442)
Barnachea v. CA, 2008
i. Acceptance
It has been held that a person who occupies land of another
ii. Repudiation at the latter's tolerance or permission, without any contract
between them, is necessarily bound by an implied promise
iii. Effects of Bad Faith of Decedent on Heir that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy. The status of the
NOTE: 3 years of possession in bad faith by the decedent defendant is analogous to that of a lessee or tenant whose
may be converted into 1 year of good faith in favor of the terms has expired but whose occupancy continues by
heir for purposes of acquisitive prescription. tolerance of the owner.
4. Possession by Minors and Incapacitated Persons The issue in an unlawful detainer case is limited to physical
possession. When a claim of ownership is used as a basis for
Article 535. Minors and incapacitated persons may acquire de facto possession or to assert a better possessory right, the
the possession of things; but they need the assistance of their court hearing the case may provisionally rule on the issue of
legal representatives in order to exercise the rights which ownership. As a rule, however, a pending civil action
from the possession arise in their favor. (443) involving ownership of the same property does not justify
the suspension of the ejectment proceedings.
5. Recourse to the Courts
Llobrera v. Fernandez, 2006
Article 536. In no case may possession be acquired through
force or intimidation as long as there is a possessor who From the absence of proof of any contractual basis for
objects thereto. He who believes that he has an action or a petitioners' possession of the subject premises, the only legal
implication is that their possession thereof is by mere thereof, for the entire period during which the co-possession
tolerance. In Roxas vs. Court of Appeals, we ruled: lasted. Interruption in the possession of the whole or a part
A person who occupies the land of of a thing possessed in common shall be to the prejudice of
another at the latter's tolerance or all the possessors. However, in case of civil interruption, the
permission, without any contract Rules of Court shall apply. (450a)
between them, is necessarily bound by
an implied promise that he will vacate Article 544. A possessor in good faith is entitled to the fruits
upon demand, failing which, a summary received before the possession is legally interrupted.
action for ejectment is the proper
remedy against him. Natural and industrial fruits are considered received from the
time they are gathered or severed.
7. Possession in two different personalities
Civil fruits are deemed to accrue daily and belong to the
Article 538. Possession as a fact cannot be recognized at the possessor in good faith in that proportion. (451)
same time in two different personalities except in the cases of
co-possession. Should a question arise regarding the fact of Article 545. If at the time the good faith ceases, there should
possession, the present possessor shall be preferred; if there be any natural or industrial fruits, the possessor shall have a
are two possessors, the one longer in possession; if the dates right to a part of the expenses of cultivation, and to a part of
of the possession are the same, the one who presents a title; the net harvest, both in proportion to the time of the
and if all these conditions are equal, the thing shall be placed possession.
in judicial deposit pending determination of its possession or
ownership through proper proceedings. (445) The charges shall be divided on the same basis by the two
possessors.
8. Preference of possession
The owner of the thing may, should he so desire, give the
Article 538. Possession as a fact cannot be recognized at the possessor in good faith the right to finish the cultivation and
same time in two different personalities except in the cases of gathering of the growing fruits, as an indemnity for his part
co-possession. Should a question arise regarding the fact of of the expenses of cultivation and the net proceeds; the
possession, the present possessor shall be preferred; if there possessor in good faith who for any reason whatever should
are two possessors, the one longer in possession; if the dates refuse to accept this concession, shall lose the right to be
of the possession are the same, the one who presents a title; indemnified in any other manner. (452a)
and if all these conditions are equal, the thing shall be placed
in judicial deposit pending determination of its possession or Article 546. Necessary expenses shall be refunded to every
ownership through proper proceedings. (445) possessor; but only the possessor in good faith may retain the
thing until he has been reimbursed therefor.
c. EFFECTS OF POSSESSION (Arts. 539-561)
Useful expenses shall be refunded only to the possessor in
Article 539. Every possessor has a right to be respected in his good faith with the same right of retention, the person who
possession; and should he be disturbed therein he shall be has defeated him in the possession having the option of
protected in or restored to said possession by the means refunding the amount of the expenses or of paying the
established by the laws and the Rules of Court. increase in value which the thing may have acquired by
reason thereof. (453a)
A possessor deprived of his possession through forcible entry
may within ten days from the filing of the complaint present Article 547. If the useful improvements can be removed
a motion to secure from the competent court, in the action without damage to the principal thing, the possessor in good
for forcible entry, a writ of preliminary mandatory faith may remove them, unless the person who recovers the
injunction to restore him in his possession. The court shall possession exercises the option under paragraph 2 of the
decide the motion within thirty (30) days from the filing preceding article. (n)
thereof. (446a)
Article 548. Expenses for pure luxury or mere pleasure shall
Article 540. Only the possession acquired and enjoyed in the not be refunded to the possessor in good faith; but he may
concept of owner can serve as a title for acquiring dominion. remove the ornaments with which he has embellished the
(447) principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to refund the
Article 541. A possessor in the concept of owner has in his amount expended. (454)
favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it. (448a) Article 549. The possessor in bad faith shall reimburse the
fruits received and those which the legitimate possessor
Article 542. The possession of real property presumes that of could have received, and shall have a right only to the
the movables therein, so long as it is not shown or proved expenses mentioned in paragraph 1 of article 546 and in
that they should be excluded. (449) article 443. The expenses incurred in improvements for pure
luxury or mere pleasure shall not be refunded to the
Article 543. Each one of the participants of a thing possessed possessor in bad faith, but he may remove the objects for
in common shall be deemed to have exclusively possessed which such expenses have been incurred, provided that the
the part which may be allotted to him upon the division thing suffers no injury thereby, and that the lawful possessor
does not prefer to retain them by paying the value they may
have at the time he enters into possession. (445a) Article 560. Wild animals are possessed only while they are
under one's control; domesticated or tamed animals are
Article 550. The costs of litigation over the property shall be considered domestic or tame if they retain the habit of
borne by every possessor. (n) returning to the premises of the possessor. (465)
Article 551. Improvements caused by nature or time shall Article 561. One who recovers, according to law, possession
always inure to the benefit of the person who has succeeded unjustly lost, shall be deemed for all purposes which may
in recovering possession. (456) redound to his benefit, to have enjoyed it without
interruption. (466)
Article 552. A possessor in good faith shall not be liable for
the deterioration or loss of the thing possessed, except in 1. Rights of a possessor
cases in which it is proved that he has acted with fraudulent
intent or negligence, after the judicial summons. Article 539. Every possessor has a right to be respected in his
possession; and should he be disturbed therein he shall be
A possessor in bad faith shall be liable for deterioration or protected in or restored to said possession by the means
loss in every case, even if caused by a fortuitous event. (457a) established by the laws and the Rules of Court.
Article 553. One who recovers possession shall not be A possessor deprived of his possession through forcible entry
obliged to pay for improvements which have ceased to exist may within ten days from the filing of the complaint present
at the time he takes possession of the thing. (458) a motion to secure from the competent court, in the action
for forcible entry, a writ of preliminary mandatory
Article 554. A present possessor who shows his possession at injunction to restore him in his possession. The court shall
some previous time, is presumed to have held possession also decide the motion within thirty (30) days from the filing
during the intermediate period, in the absence of proof to the thereof. (446a)
contrary. (459)
NOTES:
Article 555. A possessor may lose his possession:
(1) By the abandonment of the thing; Every possessor, whether in the concept of owner or in the
(2) By an assignment made to another either by concept of holder, is given the following rights:
onerous or gratuitous title; (1) The right to be respected in his
(3) By the destruction or total loss of the thing, or possession;
because it goes out of commerce; (2) The right to be protected in or restored
(4) By the possession of another, subject to the to said possession by legal means should he be
provisions of article 537, if the new possession has disturbed therein; and
lasted longer than one year. But the real right of (3) The right to secure from a competent
possession is not lost till after the lapse of ten years. court in an action for forcible entry the proper writ
(460a) to restore him in his possession. (see Art. 428)
Article 556. The possession of movables is not deemed lost so “Why should the law protect possession as such, even
long as they remain under the control of the possessor, even though it may have been seized unlawfully? Would it not
though for the time being he may not know their be sufficient to protect only ownership or at least a
whereabouts. (461) possession that is lawfully justifiable? There are three
reasons given for the protection of possession.’’
Article 557. The possession of immovables and of real rights
is not deemed lost, or transferred for purposes of prescription (1) As aid to criminal law. — “Firstly, it aids the
to the prejudice of third persons, except in accordance with criminal law by preserving the peace. Interference with
the provisions of the Mortgage Law and the Land possession almost inevitably leads to violence, not only in
Registration laws. (462a) primitive times but even in the more civilized world of
today. Order is best secured by protecting a possessor and
Article 558. Acts relating to possession, executed or agreed to leaving the true owner to seek his remedy in a court of
by one who possesses a thing belonging to another as a mere law.’’
holder to enjoy or keep it, in any character, do not bind or
prejudice the owner, unless he gave said holder express (2) As part of the law of tort. — “Secondly,
authority to do such acts, or ratifies them subsequently. (463) possession is protected as part of the law of tort. These
rights of action are given in respect of the immediate and
Article 559. The possession of movable property acquired in present violation of the rights of the possessor
good faith is equivalent to a title. Nevertheless, one who has independently of his rights of property — they are an
lost any movable or has been unlawfully deprived thereof, extension of that protection which the law throws around
may recover it from the person in possession of the same. the person. (Rogers v. Spence [1844],13 M & W. at 581.)’’
If the possessor of a movable lost or which the owner has (3) As part of the law of property. — “Finally, possession is
been unlawfully deprived, has acquired it in good faith at a protected as part of the law of property. The law does not
public sale, the owner cannot obtain its return without always know that the possession in question is unlawful. In
reimbursing the price paid therefor. (464a) times when proof of title is difficult and transfers of
property require intricate formalities, it would be unjust to writ of preliminary mandatory injunction to restore him in
cast on every man whose possession is disturbed the burden his possession. (Art. 538)
of proving a flawless title.’’ (Paton, Jurisprudence, p. 422)
(2) In unlawful detainer (ejectment) cases where an appeal
2. Possessor v. Owner is taken, the motion shall be filed within ten days from the
time the appeal is perfected, if the higher court is satisfied
Apostol v. CA, 2004 that the lessee’s appeal is frivolous or dilatory, or the lessor’s
appeal is prima facie meritorious. (Art. 1674.) This
The petitioners claim that, as alleged in their answer to the provisional remedy may only be availed of during appeal.
complaint for unlawful detainer, the respondents' title over (Dayao v. Shell Company of the Philippines, Ltd., 97 SCRA
the property is a nullity; hence, the complaint for unlawful 407 [1980])
detainer against the petitioners should be dismissed for lack
of merit. Such allegation does not help their present NOTE: The possessor also has the remedy to ask for
recourse. Under Section 48 of Presidential Decree No. 1529, damages as a result of dispossession which consists of the
a certificate of title shall not be subject to collateral attack. full rental value or reasonable compensation for the use and
It cannot be altered, modified or cancelled, except in a occupation of the property.
direct proceeding for that purpose in accordance with law.
The issue of the validity of the title of the respondents can Dumo v. Espinas, 2006
only be assailed in an action expressly instituted for that
purpose. Whether or not the petitioners have the right to We agree with the CA and the RTC that there is no basis
claim ownership over the property is beyond the power of for the MTC to award actual, moral and exemplary damages
the court a quo to determine in an action for unlawful in view of the settled rule that in ejectment cases, the only
detainer. damage that can be recovered is the fair rental value or the
reasonable compensation for the use and occupation of the
Ayson v. Enriquez Vda. de Carpo, 2004 property. Considering that the only issue raised in
ejectment is that of rightful possession, damages which
Respondent was able to present evidence showing that after could be recovered are those which the plaintiff could have
the foreclosure of the property, petitioner failed to redeem sustained as a mere possessor, or those caused by the loss of
it within the redemption period. Thus, the latter was the use and occupation of the property, and not the
divested of her ownership and right to retain possession damages which he may have suffered but which have no
thereof. Respondent acquired a better right to possess the direct relation to his loss of material possession.
property after acquiring title to it through a sale between
her and the mortgagee-bank. Although the MTC's order for the reimbursement to
petitioners of their alleged lost earnings over the subject
3. Remedies of person deprived of possession premises, which is a beach resort, could have been
considered as compensation for their loss of the use and
The actions established by law and the Rules of Court are: occupation of the property while it was in the possession of
the respondents, records do not show any evidence to
(1) Forcible entry or unlawful detainer, (2) accion sustain the same. Thus, we find no error in the ruling of the
publiciana,’ RTC that the award for lost earnings has no evidentiary or
(3) accion reivindicatoria, and factual basis; and in the decision of the CA affirming the
(4) replevin or manual delivery of personal same.
property (see discussions under Art. 428.) To justify
an action for unlawful detainer, the possession (by Corporation v. Treyes, 2007
permission or tolerance) was lawful from the start
but later became unlawful; if the possession was It bears noting, however, that as reflected in the earlier-
unlawful from the very beginning, an action for quoted allegations in the complaint for damages of herein
forcible entry would be the remedy. petitioners, their claim for damages have no direct relation
to their loss of possession of the premises. It had to do with
A person deprived of his possession by forcible entry respondent's alleged harvesting and carting away several
through any of the means specified in Section 1, Rule 70 of tons of milkfish and other marine products in their
the Rules of Court is given the right in the action for fishponds, ransacking and destroying of a chapel built by
forcible entry, to a writ of preliminary injunction to restore petitioner CGR Corporation, and stealing religious icons
him in his possession. The writ is justified because there are and even decapitating the heads of some of them, after the
many “prolonged litigations between the owner and the act of dispossession had occurred.
usurper, and the former is frequently deprived of his
possession, even when he has an immediate right thereto.’’ Surely, one of the elements of litis pendentia — that the
(Report of the Code Commission, p. 298) identity between the pending actions, with respect to the
parties, rights asserted and reliefs prayed for, is such that
Issuance of a writ of preliminary mandatory injunction: any judgment rendered on one action will, regardless of
which is successful, amount to res judicata in the action
(1) In forcible entry actions in the Municipal Court, the under consideration — is not present, hence, it may not be
plaintiff must present within ten days from the filing of the invoked to dismiss petitioners' complaint for damages.
complaint a motion to secure from the competent court, a
Wilmon Auto Supply Corp. v. CA, 1992
It is true that petitioners Bañes and Del Rosario wrote LCP
It may well be stressed in closing that as the law now expressing their willingness to voluntarily vacate the
stands, even when, in forcible entry and unlawful detainer premises upon finding another place to live in, but this is
cases, "the defendant raises the question of ownership in his after respondents had padlocked the premises and used
pleadings and the question of possession cannot be resolved armed men to prevent their coming to and from the
without deciding the issue of ownership," the Metropolitan premises. Otherwise stated, said letters do not negate the
Trial Courts, Municipal Trial Courts, and Municipal Circuit initial use of force by respondents which constituted
Trial Courts nevertheless have the undoubted competence forcible entry. It is undisputed that respondents owned the
to resolve "the issue of ownership . . . only to determine the property occupied by petitioners, still their use of force in
issue of possession." evicting petitioners therefrom was not justified.
De Luna v. CA, 1992 Indeed, regardless of the actual condition of the title to the
property, the party in peaceable quiet possession shall not
Well-established is the rule in ejectment cases that the only be thrown out by a strong hand, violence or terror. The
issue to be resolved therein is who is entitled to the physical owner who has title over the property cannot take the law
or material possession of the premises, or possession de into his own hands to regain possession of said property. He
facto, independent of any claim of ownership that either must go to court.
party may set forth in their pleadings. If petitioner can
prove prior possession in himself, he may recover such However, while we find that there was forcible entry in
possession from even the owner himself. Whatever may be this case, we cannot grant the prayer of petitioners-spouses
the character of his prior possession, if he has in his favor Bañes that they be restored to the subject premises. It is
priority time, he has the security that entitles him to stay on established that they stayed on the property for free as
the property until he is lawfully ejected by a person having privilege of petitioner Elmer Bañes as a clergyman of LCP
a better right by either accion publiciana or accion and that after the initial forcible entry of respondents,
reindivicatoria petitioner Elmer Bañes expressed, through his letter, his
willingness to vacate the property upon finding a new place
First of all, petitioner has shown that he had prior to live in and proposed that he stay in the Caloocan
possession of the property. The prior possession of property of respondent LCP. It is on record that the spouses
petitioner was established by the testimony of his witnesses, Bañes are now staying in another property owned by the
notably that of his tenant Epigenio Dilag and Victor dela LCP in Caloocan City without paying rent. It can be said,
Cruz. While petitioner admitted that he declared the therefore, that they have lost their cause of action to ask for
property for taxation purposes only in 1957, he had restitution having transferred, as they have requested, to
possessed the property beginning 1953 at the very latest, another property of LCP without paying any rentals.
when he leased the same to Epigenio Dilag, who in turn
possessed the same until respondent Dimaano, Jr. entered The situation is different insofar as petitioners spouses Del
upon the property in 1972. The possession of the property Rosario and spouses San Ramon are concerned. Evidence do
by Dilag since 1953 redounds to the benefit of petitioner, not disclose that they asked for or were given by LCP
since possession may be exercised in one's own name or in another place to stay in.
that of another.
4. Possession as basis for acquiring ownership
Semira v. CA, 1994
Article 540. Only the possession acquired and enjoyed in the
Considering the foregoing, it is not difficult to sustain concept of owner can serve as a title for acquiring dominion.
petitioner over private respondent when the latter failed (447)
even to prove prior possession in his favor. Absent such
element, it cannot be said that he was forcibly deprived of NOTES:
the disputed portion. Hence, his action for forcible entry
must fail. Under Article 540, possession acquired and enjoyed in the
concept of owner may ripen into ownership by means of
Reynante v. CA, 1992 prescription. (see Art. 1118.) This is so even if the possessor
acted in bad faith. (see Arts. 1132-1137.)
Assuming private respondents had acquired the alluvial
deposit (the lot in question), by accretion, still their failure Possession held in the concept of holder, as by a lessee,
to register said accretion for a period of fifty (50) years depositary, agent, trustee, etc., cannot be the basis of
subjected said accretion to acquisition through prescription prescription, nor possession acquired through force or
by third persons. intimidation (Art. 536.), merely tolerated, or which is not
public and is unknown to the present possessor. (Art. 537.)
It is undisputed that petitioner has been in possession of the
subject lots for more than fifty (50) years and unless private Balatero v. IAC, 1987
respondent can show a better title over the subject lots,
petitioner's possession over the property must be respected. The "constructive possession" over the parcel of land
mentioned by the appellate court did not ripen into
Banes v. Lutheran Church of the Phils., 2005 ownership. The rule is that only the possession acquired
and enjoyed in the concept of owner can serve as a title for
acquiring dominion. (Article 447, old Civil Code, Article
540, new Civil Code) As can be gleaned from the facts of a co-owner whose children paid the real estate taxes on
earlier stated, Juan Veloso never owned the subject parcel of the land for many years was held not sufficient to support
land because the contract over the same between Josefa their claim of exclusive ownership of the entire land, it
Iglupas and Juan Veloso was actually an equitable mortgage appearing that the property was declared in the name of
and not a contract of sale. such co-owner only for reasons of convenience and the
other co-owner never actually paid the real estate taxes
Munoz v. Yabut and Go Chan, 2011 because he assumed that his share of such taxes was being
paid from his share in the fruits of his portion of the land
We further stress that Section 48 of Presidential Decree No. which he was not getting regularly, much less in full.
1529, otherwise known as the Property Registration Decree, (Pangan v. Court of Appeals, 166 SCRA 375 [1988])
clearly provides that "[a] certificate of title shall not be
subject to collateral attack. It cannot be altered, modified or (2) Neither is tax assessment nor payment of realty tax on a
cancelled except in a direct proceeding in accordance with property conclusive proof of ownership; at most, it
law." Herein, several Torrens titles were already issued after constitutes mere prima facie proof of ownership or
the cancellation of Muñoz's. Certificates of title had been possession of the property; yet it is also undeniable that the
successively issued to Emilia M. Ching, spouses Go, BPI payment of realty tax coupled with actual possession in the
Family, and spouses Chan. Civil Case No. Q-28580, in concept of owner is one of the most persuasive and positive
which a final judgment had already been rendered, indicia, which shows the will or desire of a person to
specifically challenged the validity of the certificates of title possess with claim of ownership or to obtain title to the
of Emilia M. Ching and the spouses Go only. To have the land or property on which such tax is imposed for no one in
present certificate of title of the spouses Chan cancelled, his right mind would be paying taxes for a property that is
Muñoz must institute another case directly attacking the not in his actual or at least constructive possession.
validity of the same. (Republic v. Court of Appeals, 72 SCAD 178, 258 SCRA 712
[1996]; Heirs of C. Amarante v. Court of Appeals, 185 SCRA
Adriano v. Pangilinan, 2002 585 1990]; Samson v. Court of Appeals, 145 SCRA 194
[1986]) In such case, tax receipts constitute evidence of
Petitioner's act of entrusting and delivering his TCT and great weight and can be the basis of a claim of ownership
Residence Certificate to Salvador was only for the purpose acquired through prescription. (Rojas v. Court of Appeals,
of helping him find a money lender. Not having executed a 192 SCRA 709 [1990]; Tabuena v. Court of Appeals, 196
power of attorney in her favor, he clearly did not authorize SCRA 650 [1991]; De Jesus v. Court of Appeals, 217 SCRA
her to be his agent in procuring the mortgage. He only 307 [1993]; Cequeña v. Bolante, 124 SCAD 735, 330 SCRA
asked her to look for possible money lenders 216 [2000]) Thus, in a case, possession for more than 30
years as shown by tax receipts was held sufficient to qualify
Director of Lands v. Heirs of Isabel Tesalona, 1994 the possessors to register the land in question in their
names. (Samson v. Court of Appeals, supra; see San Miguel
The land is a swampy area covered by mangrove trees and Corporation v. Court of Appeals, 185 SCRA 722 [1990];
the like, these lots may very well be considered and Serina v. Caballero, 436 SCRA 593 [2004])
classified as forest lands. Moreover, well-entrenched is the
rule that possession of forest lands, no matter how long, Bartolome v. IAC, 1990
cannot ripen into private ownership. Its inclusion in a title,
whether the title be issued during the Spanish regime or Furthermore, while it is true that the property had been
under the Torrens System, nullifies the title. declared for tax purposes by Bernabe Bartolome and that,
subsequent to his death, taxes thereon were paid in the
5. Indicia of ownership or possession name of his son, Dominador, ownership thereof had not
been acquired by Ursula Cid or her heirs. Aside from the
Tax declarations, assessment, or payment of tax as indicia of fact that said declarations and payments were made during
ownership/possession the pendency of the cadastral case, a tax declaration in the
name of the alleged property owner or of his predecessor-
(1) Mere tax declarations of ownership do not vest or prove in-interest, does not prove ownership. It is merely an
ownership of the property in the declarant (Province of indicium of a claim of ownership. In the same manner,
Camarines Sur v. Director of Lands, 64 Phil. 613 [1937].) neither does the payment of taxes conclusively prove
nor are even sufficient to sustain a claim for possession over ownership of the land paid for
a land (Director of Forestry v. Villareal, 170 SCRA 598
[1989].), in the absence of actual possession of the same (De Alonso v. Cebu Country Club Inc., 2002
Luna v. Court of Appeals, 212 SCRA 276 [1992].) They are
merely an indicium of a claim of ownership. (Bartolome v. Cebu Country Club, Inc. was in possession of the land since
Intermediate Appellate Court, 183 SCRA 102 [1990]) 1931, and had been paying the real estate taxes thereon
Nevertheless, they are good indicia of possession in the based on tax declarations in its name with the title number
concept of owner. (Alonzo v. Cebu Country Club, Inc., 375 indicated thereon. Tax receipts and declarations of
SCRA 390 [2002]) ownership for taxation purposes are strong evidence of
ownership. This Court has ruled that although tax
The failure to declare a land for taxation is, of course, an declarations or realty tax payments are not conclusive
indication that the claimant does not believe himself to be evidence of ownership, nevertheless, they are good indicia
the owner. (Cruzado v. Bustos, 34 Phil. 17 [1916]) But the of possession in the concept of owner for no one in his right
mere fact that the tax declarations were issued in the name
mind will be paying taxes for a property that is not in his Article 541. A possessor in the concept of owner has in his
actual or constructive possession. favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it. (448a)
Republic v. CA, 1996
NOTES:
Although tax declarations or realty tax payments of
property are not conclusive evidence of ownership, Just title, as used in Article 541, does not always mean a
nevertheless, they are good indicia of possession in the document or a written instrument. The possessor may prove
concept of owner for no one in his right mind would be his title by witnesses. Thus, an oral contract of sale is just as
paying taxes for a property that is not in his actual or at much a title as a written contract of sale. The words “or
least constructive possession. They constitute at least proof prove’’ were inserted by the Code Commission after “show’’
that the holder has a claim of title over the property. The to cover cases of oral contracts. (I Capistrano, op. cit., p.
voluntary declaration of a piece of property for taxation 501) Actual or constructive possession under claim of
purposes manifests not only one's sincere and honest desire ownership raises the disputable presumption of ownership.
to obtain title to the property and announces his adverse (Art. 433.) In other words, a possession is presumed
claim against the State and all other interested parties, but ownership until the contrary is shown (3 Sanchez Roman
also the intention to contribute needed revenues to the 439.); or a possessor is presumed to have a just title, and he
Government. Such an act strengthens one's bona fide claim cannot be obliged to show or prove it. (Olego v. Rebueno,
of acquisition of ownership. 75 SCRA 446 [1975]) The reason for the presumption is to
protect the owner of property from inconvenience;
Cequena v. Bolante, 2000 otherwise, he will always have to carry his titles under his
arms to show them anytime to whosoever may ask for it
Respondent's possession was not disturbed until 1953 when and who, with or without reason, may bring a suit. (4
the petitioners' father claimed the land. But by then, her Manresa 248)
possession, which was in the concept of owner — public,
peaceful, and uninterrupted — had already ripened into i. Onus Probandi
ownership. Furthermore she herself, after her father's
demise, declared and paid realty taxes for the disputed land. (1) The onus probandi is on the plaintiff
Tax receipts and declarations of ownership for taxation, who seeks the recovery of property. (Bondad v.
when coupled with proof of actual possession of the Bondad, 34 Phil. 232 [1916]) Thus, a purchase
property, can be the basis of a claim for ownership through verbally made confers ownership upon the
prescription. possessor provided he holds himself out as the
owner until it is shown or proved that he is not.
In contrast, the petitioners, despite thirty-two years of (Heirs of Jumero v. Lizares, 17 Phil. 112 [1910])
farming the subject land, did not acquire ownership. It is However, where X, present possessor of property
settled that ownership cannot be acquired by mere claimed by Y, admits that the property used to
occupation. Unless coupled with the element of hostility belong to Z from whom Y claims to derive his
toward the true owner, occupation and use, however long, right, X, in view of his admission of Z’s prior
will not confer title by prescription or adverse possession. ownership, must prove his just title to overcome
Moreover, the petitioners cannot claim that their possession the contrary presumption in favor of Z’s prior
was public, peaceful and uninterrupted. ownership even though X is in possession of the
property. (Sarita v. Candia, 23 Phil. 443 [1912])
Serina v. Caballero, 2004
(2) A person who is not, in fact, in possession
Since the property has not been clearly identified by the cannot acquire a prescriptive right to a land by the
petitioners, their claim of acquisitive prescription cannot be mere assertion of a right therein. Where the
considered. Insufficient identification of the portion of land possessor is really the owner, the fact that a third
claimed in absolute ownership cannot ripen into ownership. person questions his right does not impair said
Possession as a means of acquiring ownership, while it may right. An owner and possessor whose title is true
be constructive, is not a mere fiction. and valid (infra.) cannot be required to show that
his possession is or has been adverse as against a
The petitioners' argument that the payment of taxes on the new claimant who has neither title nor possession.
property since May 31, 1948 constitutes proof of their (Gamboa v. Gamboa, 52 Phil. 503 [1928])
possession of the subject land for thirty-five years is
untenable. Tax declarations and receipts are not conclusive ii. Different kinds of title
evidence of ownership. At most, they constitute mere prima
facie proof of ownership of the property for which taxes 1) The just title presumed by the provision
have been paid. In the absence of actual, public and adverse is title which by itself is sufficient to transfer
possession, the declaration of the land for tax purposes does ownership without need of possessing the property
not prove ownership. for the period necessary for acquiring title by
prescription. It is title that is true and valid (titulo
6. Just title verdadero y valido). (Art. 1130.) The presumption
of just title does not apply in acquisitive
prescription. The adverse possessor must prove his
just title. (Art. 1131.)
the part which may be allotted to him upon the division
(2) For the purposes of prescription, there thereof, for the entire period during which the co-possession
is just title (titulo justo) when the adverse claimant lasted. Interruption in the possession of the whole or a part
came into possession of the property through one of a thing possessed in common shall be to the prejudice of
of the modes recognized by law for the acquisition all the possessors. However, in case of civil interruption, the
of ownership or other real rights, but the grantor Rules of Court shall apply. (450a)
was not the owner or could not transmit any right
(Art. 1129.); and also for the purposes of NOTES:
prescription, just title must be proved; it is never
presumed. (Art. 1130.) Exclusive possession of previous co-owner deemed
continuous
(3) A colorable title (titulo colorado) is one
which a person has when he buys a thing in good The article speaks of co-possession of a thing, not of co-
faith, from one who is not the owner but whom he ownership. (Art. 484.) Nevertheless, its principle is
believes to be the owner. The just title required for applicable to co-possession of a real right. The object of a
acquisitive prescription is not titulo verdadero y co-ownership as well as co-possession may be a thing or a
valido but only titulo colorado. (Solis v. Court of right such as usufruct. The rule enunciated in the first part
Appeals, 176 SCRA 678 [1989]; De Jesus v. Court of of Article 543 is derived from Article 493, and by
Appeals, 217 SCRA 307 [1993]; see Arts. 1106, considering inherited property as a thing owned in
1129, 1131, infra) common, confirms the principle laid down in Article 1091.1
(4 Manresa 255.) It was held applicable with respect to
(4) A colorable title is to be distinguished property held in common by co-heirs. (Beltran v. Dorinao,
from putative title (titulo putativo), being one 32 Phil. 66 [1915])
which a person believes he has but in fact he has
not because there was no mode of acquiring All participants of a thing possessed in common constitute
ownership, as when one is in possession of a thing only one personality and the personality ceases when there
in the mistaken belief that it had been bequeathed is a partition. (see Art. 538.) From that moment of cessation,
to him. (see Doliendo v. Biarnesa, 7 Phil. 232 the personality of each participant begins. By fiction of law,
[1906]) each co-possessor is deemed (not merely presumed) to have
possessed exclusively and continuously during the period of
7. Inclusion of movables in possession co-possession the part assigned to him in the division.
Stated another way, the effects of the division retroact to
Article 542. The possession of real property presumes that of the commencement of the co-possession.
the movables therein, so long as it is not shown or proved
that they should be excluded. (449) But the division shall be without prejudice to the rights of
creditors. (see Art. 493.)
NOTES:
The above may be illustrated thus:
Article 542 refers to material possession only of things;
rights are not covered. The possession may be in the Suppose X, Y, and Z have been co-possessors in the concept
concept of owner or in the concept of holder, in one’s own of owners of a fifteen (15) hectare parcel of land until they
name or in another’s, or in good faith or in bad faith. divided the property equally on the 8th year. If on the 4th
year, after the division, T claims ownership of the portion
It is natural, it is normal, that movables which are found in allotted to X, the latter can assert title by acquisitive
an immovable belong to the possessor of the latter. The (ordinary) prescription through possession of ten (10), for
most frequent is that of the owner and the lessee of a he is deemed to have possessed his portion exclusively and
building. If the building is occupied by the owner, we can continuously for a period of twelve (12) years.
suppose that all movables found therein are his. If the
building is occupied by the lessee, we can suppose the same Interruption in possession of the thing
with respect to him because in this case the possessor is the
lessee, and it is not the custom that in the contract of lease, Both the benefits and the prejudices that might have taken
movables are delivered with the building. It is not a case of place during the co-possession shall attach to each of the co-
the accessory following the principal; if it were so, then the participants. Thus, prescription obtained by a co-possessor
building being owned by the lessor, the movables would or co-owner shall benefit the others. (Art. 1111.)
also belong to him. Interruption in the possession of the whole or part of a
thing shall be to the prejudice of all the possessors. (Art.
On the contrary, the building being owned by the lessor, 543.)
the movables belong to the possessor, the lessee, for it is
supposed that he who needs the movables would introduce Possession is interrupted for purposes of prescription either
them in the building. (4 Manresa 250-251.) naturally, i.e., when through any cause it should cease for
more than one (1) year; or civilly, i.e., when the
8. Continuity and interruption of possession interruption is produced by judicial summons to the
possessor. (Arts. 1120, 1121, 1123) In civil interruption,
Article 543. Each one of the participants of a thing possessed only those possessors served with judicial summons are
in common shall be deemed to have exclusively possessed
affected. This second part of the article may be illustrated as moment facts exist which show that the possessor is not
follows: unaware that he possesses the thing improperly or
wrongfully. (Art. 528.)
In the same example above, if X, Y, and Z lose possession of
the whole land after five (5) years, then their possession A possessor in bad faith is not entitled to the fruits. He has
shall be reduced by three (3) years. The possession of X, Y, the duty to reimburse the fruits received including that
and Z may have been exercised by themselves or through which the legitimate possessor could have received. (Art.
an agent who takes charge of the cultivation of the property 549.)
for them. Now, if for some reason the agent lost possession
of three (3) hectares (1/5) of the land at the end of the 5th (2) Where there is a complaint. — Although he
year, possession of the remaining twelve (12) hectares (4/5) may not have been convinced of it before, the possessor
continues without interruption. becomes aware that his possession is unlawful from the time
he learns of the complaint, from the time he is summoned
If they have equal shares in the co-possession, their shares to the trial. It is at this time that his possession is legally
in the remaining portion and the area lost shall also be in interrupted, according to Article 1123, and from that time
equal shares; if their shares or interests are unequal then be considered a possessor in good faith. (Mindanao
they share in the same proportion. The interruption Academy, Inc. v. Yap, 13 SCRA 190 [1965]; Manotok
prejudices all but not that they should share equally the Realty, Inc. v. Tecson, 164 SCRA 587 [1988]; Tacas v.
portion lost. Tobon, supra) Hence, all fruits that the possessor may
receive from the time that he is summoned, or when he
Note that the interruption, according to Article 543, must answers the complaint, must be delivered or paid by him to
refer to the whole thing itself or part of it and not to a part the owner or lawful possessor. (Ortiz v. Kayanan, 92 SCRA
or right of a co-possessor. In a co-possession, there is only 146 [1979]; see Calma v. Calma, 56 Phil. 102 [1931]; Cleto v.
one thing and many possessors. If the right of a co-possessor Salvador, 11 Phil. 416 [1908])
is contested, he alone shall be prejudiced. With respect to
the thing, the prejudice shall be against all. The reason Note that the right of the possessor in good faith is limited
behind this is that the thing being undivided, it would be to the fruits, referring to natural, industrial, and civil fruits
unjust to make the injury to fall on only one co-possessor (see Art. 441.) Other things (e.g., building) belong to the
although only the possession of a part of the thing may have owner of the land. But the possessor in good faith is liable
been interrupted. (see Manresa 257-258) for reasonable rents being civil fruits, from the time of the
interruption of good faith. (see Antonio v. Gonzales, [C.A.]
9. Rights of possessor in good faith to fruits received O.G. July, 1943, p. 687)
Art. 544. A possessor in good faith is entitled to the fruits i. When fruits considered received (Art. 443, 449)
received before the possession is legally interrupted.
Art. 443. He who receives the fruits has the obligation to pay
Natural and industrial fruits are considered received from the the expenses made by a third person in their production,
time they are gathered or severed. gathering, and preservation. (356)
Civil fruits are deemed to accrue daily and belong to the Art. 449. He who builds, plants or sows in bad faith on the
possessor in good faith in that proportion. (451) land of another, loses what is built, planted or sown without
right to indemnity. (362)
NOTES:
NOTES:
The fruits of a thing generally belong to the owner (Art.
441.) but a possessor in good faith is entitled to the fruits (1) In the case of natural and industrial fruits. —
received until good faith ceases and bad faith begins. Legal They are considered received from the time they
interruption of possession in good faith takes place upon are gathered or severed. Fruits gathered before
service of judicial summons to the possessor. (Mindanao legal interruption belong to the possessor in good
Academy, Inc. v. Yap, 13 SCRA 190 [1965]; see Art. 1123.) faith. If the fruits are still ungathered or
unharvested, Article 545 applies. (see Arts. 443,
Whenever there is cessation of good faith in the eyes of the 449.)
law (see Art. 545, par. 1.), whether by reason of the filing of
a complaint or not, possession in good faith should be (2) In the case of civil fruits. — Their accrual, not
deemed legally interrupted from such cessation and not their actual receipt, shall determine when they are
merely from the service of judicial summons. considered received at the time that good faith is
legally interrupted. They are deemed to accrue
(1) Where there is no complaint. — To every daily and belong to the possessor in good faith in
possessor in good faith there comes a time when he is that proportion.
considered a possessor in bad faith. When the owner or
possessor with a better right comes along, when he becomes Thus, where the ownership of certain houses in
aware that what he had taken for granted is at least possession of X was declared by final judgment of
doubtful, and when he learns the grounds in support of the the court to belong to Z on May 21, the rents
adverse claim, good faith ceases. (Tacas v. Tobon, 53 Phil. accrued before May 21 should belong to X and
356 [1929]) Possession in good faith ceases from the those accruing beginning May 21, to Z, although
the rent was by the terms of the contract of lease P5,000 and Y = P2,500, from the total harvest of P7,500;
between X and the lessee payable in advance. under (b) above, X, P4,500 and Y, P3,000.
Portion of the rent which accrued before May 21
but received by Z on or subsequent to May 21 (3) Unjust enrichment may result. — Under Article
belongs to X. (see Waite v. William, Chandler & 545, the expenses are not shared in proportion to what each
Co., 5 Phil. 571 [1906]) receives from the harvest. In certain cases, unjust
enrichment may result.
10. Division of fruits and expenses
Suppose, in the first example, the period of possession and
Art. 545. If at the time the good faith ceases, there should be the amount of cultivation expenses incurred are as follows:
any natural or industrial fruits, the possessor shall have a X = 3 years and P1,000; Y = 6 years and P500. In this case, X
right to a part of the expenses of cultivation, and to a part of will get P2,000 and Y, P4,000 out of the net harvest. The
the net harvest, both in proportion to the time of the law says that the possessor shall have a right to a part of the
possession. expenses for cultivation in proportion to the time of
possession. Therefore, X is entitled only to P500 of the
The charges shall be divided on the same basis by the two P1,500 cultivation expenses although he spent P1,000 while
possessors. Y is entitled to P1,000, although he spent only P500. Thus,
X would recover P2,500 (P2,000 + P500) and Y, P5,000
The owner of the thing may, should he so desire, give the (P4,000 + P1,000) from the total harvest of P7,500, with Y
possessor in good faith the right to finish the cultivation and unjustly enriching himself to the extent of P500 of the
gathering of the growing fruits, as an indemnity for his part expenses. In effect, X would get only P2,000 from the net
of the expenses of cultivation and the net proceeds; the harvest of P6,000 (P7,500 – P1,500) while Y would get
possessor in good faith who for any reason whatever should P4,000.
refuse to accept this concession, shall lose the right to be
indemnified in any other manner. (452) The more equitable rule is to make the sharing of the
expenses and charges in the same proportion that the
NOTES: harvest is divided. On the basis of 1 to 2 proportion in favor
of Y, X’s share in the total harvest will be P2,500 and Y,
This article does not apply when the possessor is in bad P5,000. Since X is entitled to reimbursement for the excess
faith, the fruits are civil, or the fruits are natural or of P500, the actual division of the total harvest will be: X =
industrial but they have been gathered or severed when P3,000 (P2,500 + P500) and Y = P4,500 (P5,000 – 500). By a
good faith ceases. A possessor in bad faith has no right proportionate division of the net harvest of P6,000, X will
whatsoever to the fruits, gathered or pending, except only get P2,000 plus P500 (to be reimbursed by Y) or P2,500 and
necessary expenses for gathered fruits. (see Arts. 443, 449.) Y, P4,500 less P1,000 (P500 cultivation expenses + P500 to
Since civil fruits are produced day by day, Article 545 does be reimbursed to X), or P3,500.
not apply to them. In the case of fruits already gathered at
the time good faith ceases, it is Article 544 that is applicable. (4) Option of owner. — The owner or new
possessor who recovers possession has the option either to
(1) Sharing of expenses and charges. — If there are pay the possessor in good faith indemnity for his cultivation
pending natural and industrial fruits at the time good faith expenses (and charges) and his share in the net harvest or to
ceases, the two possessors shall share in the expenses of allow instead the possessor in good faith to finish the
cultivation and the charges (i.e., expenses made not on the cultivation and gathering of the growing fruits in lieu of
property itself but on account of it, such as taxes, interest on said indemnity. In case of refusal of the possessor in good
mortgages) in proportion to the time of possession. faith for any reason whatever to accept this concession, he
forfeits the right to be indemnified in any other manner.
Thus, if at the time of receipt of the judicial summons, X, (see Azarcon v. Eusebio, 105 Phil. 656 [1959].) This is
has been in possession in good faith for six (6) months, and considered just because even if the possessor were to
the harvest was made three (3) months later by Y, the continue in possession, he could not expect more. The
owner, who continues in possession, the expenses and owner should exercise this option in case a loss, instead of
charges shall be divided between X and Y in the proportion net proceeds, is probable. (I Capistrano, op. cit., p. 507)
of 6 to 3, or 2 to 1. Assuming the expenses incurred are as
follows: (5) Where there are no fruits or fruits less than
expenses. — Since reimbursement for expenses would have
(a) X = P1,000 and Y = P500. — They shall share the same to come from the net harvest, if there is no net harvest
amount incurred by them. because there are no fruits or the fruits are less than the
(b) X = P500 and Y = P1,000. — In this case, X shall expenses, the rule in Article 545 that the expenses shall be
reimburse Y P500 out of the net harvest. borne in proportion to the period of possession cannot
apply. If the fruits are merely insufficient, the same should
(2) Sharing of fruits. — In the same example above, be divided in proportion to their respective expenses.
the net harvest shall be divided in the same proportion of 2
to 1. Assuming the total harvest for the year is P7,500 and If there are no fruits, each should bear his own expenses
the expenses are the same, the net proceeds of the harvest subject to the right of the possessor in good faith to be
after deducting the total expenses would amount to P6,000. refunded for necessary expenses under Article 546, unless
Hence, the sharing will be: X = P4,000 and Y = P2,000. In the owner or new possessor exercises his option referred to
other words, under (a) above, X would be able to recover above.
(3) Possessor in bad faith generally
11. Expenses without rights. — The possessor in bad faith has no
rights except as provided in Articles 546 and 549,
Art. 546. Necessary expenses shall be refunded to every the right to be refunded for necessary expenses and
possessor; but only the possessor in good faith may retain the the limited right of removal of improvements for
thing until he has been reimbursed therefor. pure luxury. (infra.) No mere lessee can claim to be
a possessor or builder in good faith, i.e., one who
Useful expenses shall be refunded only to the possessor in possesses in the concept of an owner. (Eusebio v.
good faith with the same retention, the person who has Intermediate Appellate Court, 144 SCRA 148
defeated him in the possession having the option of [1988]; Maceda v. Court of Appeals, 176 SCRA 440
refunding the amount of the expenses or of paying the [1989]; Mantruiste Systems, Inc. v. Court of
increase in value which the thing may have acquired by Appeals, 179 SCRA 136 [1989])
reason thereof. (453a)
ii. Right of possessor with respect to necessary
i. General rule on expenses expenses
iii. Right of possessor with respect to useful expenses (2) No right whatsoever. — If the possessor is in
bad faith, he has no right whatsoever, neither
Useful expenses are expenses which add refund nor retention nor removal, regarding useful
value to a thing, or augment its income (Calagan v. expenses. (see Arts. 449-451, 549; Angeles v.
Court of First Instance of Davao, 95 SCRA 498 Guevara, 109 Phil. 1105 [1960]; Tan Queto v. Court
[1980]; Mendoza v. De Guzman, supra.), or of Appeals, 122 SCRA 206 [1983].)
introduce improvements thereon or increase its (a) Useful expenses incurred during the
usefulness to the possessor, or better serve the period of retention by a possessor in good faith are
purpose for which it is intended. (see Robles v. to be considered in bad faith.
Lizarraga Hermanos, supra; Aringo v. Arenas, 14 (b) One who possesses a land registered in
Phil. 263 [1909]) the name of another under the Torrens system
cannot be a possessor in good faith, the registration
Examples of useful expenses are those incurred: being binding on the whole world. A Torrens title
(1) In levelling the ground, cutting down issued pursuant to a court decree is uperior to a
the trees and removing the shrubbery (Tuquero v. homestead patent granted subsequent to such
Valdez, [C.A.] 35 O.G. 1799; Alburo v. Villanueva, decree. (Monte de Piedad v. Velasco, 61 Phil. 467
supra.); [1935])
(2) In introducing improvements (c) It has been held that possession of a lot
consisting of a dining room, kitchen, closet and by lessees is not possession in good faith for
ballroom, and a stable suitable as a coach house and purposes of Article 546, and after the lessees
dwelling (Robles v. Lizarraga, supra.); become co-owners thereof, no co-owner can claim
(3) In the construction of a fishpond as it prior possession of any individual portion as to
gives its owner benefits called industrial fruits entitle him to a refund of useful expenses made on
(Rivera v. Roman Catholic Archbishop of Manila, his share once the lot is finally partitioned.
40 Phil. 717 [1920].), or an irrigation system but (Eusebio v. Intermediate Appellate Court, 144
not including farming implements and work SCRA 154 [1986])
animals which the possessor retains and which do
not remain on the land (Valenzuela v. Lopez, 51 a. If in good faith
Phil. 297 [1927].); and
b. If in bad faith
although they add value to the thing, but are
Ramel v. Aquino, 2006 incurred merely to embellish the thing and for the
convenience or enjoyment of particular possessors.
We cannot order an offsetting of the claims as did the trial They are expenses which are neither necessary nor
court and the appellate court. The evidence show that both useful incurred to satisfy personal whims or
parties failed to prove their respective claims. In the caprices of the possessor. An expense, however,
absence of evidence from both parties on their claims, may be luxurious under certain circumstances or
offsetting is improper. The right to offset may exist but the with respect to particular persons but useful under
question of how much is to be offset is factual in nature and different conditions or as to other persons.
needs to be proved by proper evidence
These expenses are sometimes referred to as
iv. Useful improvements luxurious expenses, or ornamental expenses, or
expenses for pure ostentation. Examples are water
Art. 547. If the useful improvements can be removed without fountains or statues in gardens, swimming pools,
damage to the principal thing, the possessor in good faith and wall paintings. The objects, as in useful
may remove them, unless the person who recovers the improvements, must have been incorporated to the
possession exercises the option under paragraph 2 of the principal thing in a more or less permanent way
preceding article. (n) that their separation must necessarily reduce the
value of the thing not curable by ordinary repair.
a. Removal (see Art. 548.)
Corollarily, a possessor in bad faith is bound to (5) Charges. — He shall share them with the owner
account for the fruits received as well as those or lawful possessor in proportion to the time of
which the lawful possessor should or might have their possession. (Art. 545, pars. 1, 2.)
received. (Director of Lands v. Abagat, 53 Phil. 147
[1929]) (6) Deterioration or loss. — He is always liable,
whether due to his fault or negligence, or due to a
(2) Necessary expenses. — He is only entitled to fortuitous event. (Art. 552.)
reimbursement without a right of retention. (Art.
546, par. 1; see Art. 443.) (7) Others. — He is liable to the owner or lawful
possessor for an amount equal to a reasonable rent
(3) Useful expenses. — He is not entitled to refund for the use and occupation of the property. (Lerma
(Art. 546, par. 2.) and forfeits the improvements. v. De la Cruz, 7 Phil. 581 [1907])
(Art. 449.) The law does not give him the right of
removal. He is likewise liable for any other damage caused
to the property or suffered by the lawful possessor
Article 547 refers only to a possessor in good faith arising from the possession. (see Arts. 20, 21, 2176)
while Article 549 speaks of luxurious expenses, not
useful expenses. It has been held, however, that if MWSS v. CA, 1986
the lawful possessor can retain the improvements
introduced by the possessor in bad faith for pure Moreover, under Article 546 of said code, only a possessor
luxury or mere pleasure only by paying the value in good faith shall be refunded for useful expenses with the
thereof at the time he enters into possession, as a right of retention until reimbursed; and under Article 547
matter of equity, a possessor in bad faith should be thereof, only a possessor in good faith may remove useful
allowed to remove useful improvements (i.e., improvements if this can be done without damage to the
drainage construction, walled fence and bungalow) principal thing and if the person who recovers the
unless the lawful owner or possessor chooses to pay possession does not exercise the option of reimbursing the
for their value at the time said improvements were useful expenses. The right given a possessor in bad faith is to
introduced. (Carbonell v. Court of Appeals, 69 remove improvements applies only to improvements for
SCRA 99 [1976]) pure luxury or mere pleasure, provided the thing suffers no
injury thereby and the lawful possessor does not prefer to
Two subsequent cases have categorically ruled that retain them by paying the value they have at the time he
“the right given a possessor in bad faith to remove enters into possession (Article 549, Id.).
improvements applies only to improvements for
pure luxury or mere pleasure’’ subject to the Sabido v. IAC, 1988
provisions of Article 549. (Metropolitan
Waterworks and Sewerage System v. Court of It is clear that the private respondent has to remove all his
Appeals, 143 SCRA 623 [1986]; Sabido v. constructions over Lot "B" and vacate the premises. This is
Intermediate Appellate Court, 165 SCRA 498 his only option. Being adjudged in privy with the spouses
[1988]) Dasals, he cannot avail himself of the rights granted to a
builder in good faith. He, therefore, must remove all his
(4) Luxurious expenses. — Likewise, he is not useful improvements over Lot "B" at his own expense and if
entitled to refund. He loses the improvements but the same have already been removed, he cannot be entitled
he is granted the limited right of removal, i.e., he to the right of retention or to any reimbursement.
may remove them if it is possible without injury to
the principal thing and the lawful possessor does 12. Costs of litigation
not exercise his option.
Art. 550. The costs of litigation over the property shall be
In case the lawful possessor decides to retain the borne by every possessor. (n)
improvements for pure luxury or pleasure, he shall
pay only the value they may have at the time he NOTES:
enters into possession. The possessor in good faith
is reimbursed the amount expended if the option to They are borne by the possessor of the property because
retain the improvements is exercised by the lawful they redound to his benefit, the court action being
possessor (Art. 548.) which amount is ordinarily necessary to maintain his possession. “Every possessor’’
higher than the value of the improvements at the refers really to any possessor — in good faith or in bad faith,
in the concept of owner or holder, or in his own name or in after receipt of judicial summons, and whether or not due to
that of another. It does not include the prevailing party who a fortuitous event. Thus, the possessor in bad faith is liable
succeeds in the possession. in every case until delivery is made to the lawful possessor
even if the deterioration was caused by a fortuitous event
Under the Rules of Court (Sec. 1, Rule 142.), the costs of an and even before judicial summons, as punishment for his
action shall, as a rule, be paid by the losing party. The court bad faith.
may, however, for special reasons, adjudge that either shall
pay the costs, or that the same be divided, as may be Improvements which have ceased to exist
equitable.
The rule contained in the above provision is just. The
13. Improvements/loss/deterioration improvements referred to were enjoyed by the possessor
alone. Having ceased to exist, the owner or lawful possessor
Art. 551. Improvements caused by nature or time shall who came too late cannot benefit from them. But he is
always inure to the benefit of the person who has succeeded liable for necessary expenses even if the thing for which
in recovering possession. they were incurred no longer exists. Necessary expenses are
not considered improvements. (see Art. 546, par. 1.)
Art. 552. A possessor in good faith shall not be liable for the
deterioration or loss of the thing possessed, except in cases in 14. Losing possession, modes
which it is proved that he has acted with fraudulent intent or
negligence, after the judicial summons. Art. 554. A present possessor who shows his possession at
some previous time, is presumed to have held possession also
A possessor in bad faith shall be liable for deterioration or during the intermediate period, in the absence of proof to the
loss in every case, even if caused by a fortuitous event. (457a) contrary. (459)
Art. 553. One who recovers possession shall not be obliged to Art. 555. A possessor may lose his possession:
pay for improvements which have ceased to exist at the time (1) By the abandonment of the thing;
he takes possession of the thing. (458) (2) By an assignment made to another either by onerous or
gratuitous title;
NOTES: (3) By the destruction or total loss of the thing, or because it
goes out of commerce;
Improvements caused by nature or time (4) By the possession of another, subject to the provisions of
article 537, if the new possession has lasted longer than one
Article 551 covers all the natural accessions mentioned in year. But the real right of possession is not lost till after the
Articles 457 to 465 which must follow the ownership of the lapse of ten years. (460a)
principal thing, and generally, all improvements that are
not due to the will of the possessor. No distinction is made Art. 556. The possession of movables is not deemed lost so
regarding the kind of possession. long as they remain under the control of the possessor, even
though for the time being he may not know their
The former possessor got the benefits from the property whereabouts. (461)
during his possession. It is but just that the improvements
mentioned which take place after the possession is Art. 557. The possession of immovables and of real rights is
recovered inure to the owner or lawful possessor. Hence, he not deemed lost or transferred for purposes of prescription to
should not pay for them. the prejudice of third persons, except in accordance with the
provisions of the Mortgage Law and the Land Registration
Liability for loss or deterioration Laws. (462a)
Under Article 564, usufruct may be: Article 569. Civil fruits are deemed to accrue daily, and
belong to the usufructuary in proportion to the time the
(1) As to extent of object: usufruct may last. (474).
(a) Total, if it is constituted on the whole of a thing;
or Article 570. Whenever a usufruct is constituted on the right
(b) Partial, if it is constituted only on a part of a to receive a rent or periodical pension, whether in money or
thing; in fruits, or in the interest on bonds or securities payable to
bearer, each payment due shall be considered as the proceeds
(2) As to number of beneficiaries: or fruits of such right.
(a) Simple, if there is only one usufructuary; or
(b) Multiple, if there are several usufructuaries, and Whenever it consists in the enjoyment of benefits accruing
the latter may be: from a participation in any industrial or commercial
1) Simultaneous (at the same time); or enterprise, the date of the distribution of which is not fixed,
2) Successive (one after another); such benefits shall have the same character.
(3) As to effectivity or extinguishment: In either case they shall be distributed as civil fruits, and
(a) Pure, if there is no term or condition; shall be applied in the manner prescribed in the preceding
(b) With a term, if there is a period which may be article. (475)
either suspensive (from a certain day) or resolutory
(up to a certain day); or Article 571. The usufructuary shall have the right to enjoy
(c) Conditional, if it is subject to a condition which any increase which the thing in usufruct may acquire
may be either suspensive (from the beginning of a through accession, the servitudes established in its favor,
certain event) or resolutory (until the happening of and, in general, all the benefits inherent therein. (479)
a certain event); and
Article 572. The usufructuary may personally enjoy the thing
(4) As to subject matter: in usufruct, lease it to another, or alienate his right of
(a) Over things, if it involves tangible property; or usufruct, even by a gratuitous title; but all the contracts he
(b) Over rights, if it involves intangible property as may enter into as such usufructuary shall terminate upon the
rights are, but the rights must not be strictly expiration of the usufruct, saving leases of rural lands, which
personal or intransmissible; thus, the right to shall be considered as subsisting during the agricultural year.
receive support cannot be the subject matter of (480)
usufruct.
Article 573. Whenever the usufruct includes things which,
b. RIGHTS OF THE USUFRUCTUARY (Arts. 566-582) without being consumed, gradually deteriorate through wear
and tear, the usufructuary shall have the right to make use
Article 566. The usufructuary shall be entitled to all the thereof in accordance with the purpose for which they are
natural, industrial and civil fruits of the property in usufruct. intended, and shall not be obliged to return them at the
With respect to hidden treasure which may be found on the termination of the usufruct except in their condition at that
land or tenement, he shall be considered a stranger. (471) time; but he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of his fraud
Article 567. Natural or industrial fruits growing at the time or negligence. (481)
the usufruct begins, belong to the usufructuary.
Article 574. Whenever the usufruct includes things which
Those growing at the time the usufruct terminates, belong to cannot be used without being consumed, the usufructuary
the owner. shall have the right to make use of them under the obligation
of paying their appraised value at the termination of the
usufruct, if they were appraised when delivered. In case they
were not appraised, he shall have the right to return the Article 582. The usufructuary of a part of a thing held in
same quantity and quality, or pay their current price at the common shall exercise all the rights pertaining to the owner
time the usufruct ceases. (482) thereof with respect to the administration and the collection
of fruits or interest. Should the co-ownership cease by reason
Article 575. The usufructuary of fruit-bearing trees and of the division of the thing held in common, the usufruct of
shrubs may make use of the dead trunks, and even of those the part allotted to the co-owner shall belong to the
cut off or uprooted by accident, under the obligation to usufructuary. (490)
replace them with new plants. (483a)
1. As to fruits (Art. 566)
Article 576. If in consequence of a calamity or extraordinary
event, the trees or shrubs shall have disappeared in such Article 566. The usufructuary shall be entitled to all the
considerable number that it would not be possible or it natural, industrial and civil fruits of the property in usufruct.
would be too burdensome to replace them, the usufructuary With respect to hidden treasure which may be found on the
may leave the dead, fallen or uprooted trunks at the disposal land or tenement, he shall be considered a stranger. (471)
of the owner, and demand that the latter remove them and
clear the land. (484a) i. As to civil fruits (Art. 569)
Article 577. The usufructuary of woodland may enjoy all the Article 569. Civil fruits are deemed to accrue daily, and
benefits which it may produce according to its nature. belong to the usufructuary in proportion to the time the
usufruct may last. (474).
If the woodland is a copse or consists of timber for building,
the usufructuary may do such ordinary cutting or felling as a. Usufructuary leases property, rents how applied
the owner was in the habit of doing, and in default of this, he (Art. 568)
may do so in accordance with the custom of the place, as to
the manner, amount and season. Article 568. If the usufructuary has leased the lands or
tenements given in usufruct, and the usufruct should expire
In any case the felling or cutting of trees shall be made in before the termination of the lease, he or his heirs and
such manner as not to prejudice the preservation of the land. successors shall receive only the proportionate share of the
rent that must be paid by the lessee. (473)
In nurseries, the usufructuary may make the necessary
thinnings in order that the remaining trees may properly b. Usufruct constituted on certain rights (Art. 570)
grow.
Article 570. Whenever a usufruct is constituted on the right
With the exception of the provisions of the preceding to receive a rent or periodical pension, whether in money or
paragraphs, the usufructuary cannot cut down trees unless it in fruits, or in the interest on bonds or securities payable to
be to restore or improve some of the things in usufruct, and bearer, each payment due shall be considered as the proceeds
in such case shall first inform the owner of the necessity for or fruits of such right.
the work. (485)
Whenever it consists in the enjoyment of benefits accruing
Article 578. The usufructuary of an action to recover real from a participation in any industrial or commercial
property or a real right, or any movable property, has the enterprise, the date of the distribution of which is not fixed,
right to bring the action and to oblige the owner thereof to such benefits shall have the same character.
give him the authority for this purpose and to furnish him
whatever proof he may have. If in consequence of the In either case they shall be distributed as civil fruits, and
enforcement of the action he acquires the thing claimed, the shall be applied in the manner prescribed in the preceding
usufruct shall be limited to the fruits, the dominion article. (475)
remaining with the owner. (486)
NOTES:
Article 579. The usufructuary may make on the property
held in usufruct such useful improvements or expenses for Because civil fruits accrue daily, they belong to the
mere pleasure as he may deem proper, provided he does not usufructuary in proportion to the time the usufruct
alter its form or substance; but he shall have no right to be lasts. (Art. 569.) Payments and benefits that accrue
indemnified therefor. He may, however, remove such after the termination of the usufruct belong to the
improvements, should it be possible to do so without damage owner.
to the property. (487)
Since the making of profits is always uncertain, the
Article 580. The usufructuary may set off the improvements date of distribution of benefits (e.g., dividends) is
he may have made on the property against any damage to the not fixed by business enterprises. But once decision
same. (488) has been made to grant the benefits, the company
usually fixes the date when they shall be
Article 581. The owner of property the usufruct of which is distributed.
held by another, may alienate it, but he cannot alter its form
or substance, or do anything thereon which may be The date when the benefits accrue determines
prejudicial to the usufructuary. (489) whether they should belong to the usufructuary or
to the owner. Article 570 applies whether or not
the date of distribution of benefits is fixed. 2. As to hidden treasure (Art. 566, 438, 439)
ii. As to natural and industrial fruits (Art. 567) Article 566. The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the property in usufruct.
Article 567. Natural or industrial fruits growing at the time With respect to hidden treasure which may be found on the
the usufruct begins, belong to the usufructuary. land or tenement, he shall be considered a stranger. (471)
Those growing at the time the usufruct terminates, belong to Art. 438. Hidden treasure belongs to the owner of the land,
the owner. building, or other property on which it is found
In the preceding cases, the usufructuary, at the beginning of Nevertheless, when the discovery is made on the property of
the usufruct, has no obligation to refund to the owner any another, or of the State or any of its subdivisions, and by
expenses incurred; but the owner shall be obliged to chance, one-half thereof shall be allowed to the finder. If the
reimburse at the termination of the usufruct, from the finder is a trespasser, he shall not be entitled to any share of
proceeds of the growing fruits, the ordinary expenses of the treasure.
cultivation, for seed, and other similar expenses incurred by
the usufructuary. If the things found be of interest to science or the arts, the
State may acquire them at their just price, which shall be
The provisions of this article shall not prejudice the rights of divided in conformity with the rule stated.
third persons, acquired either at the beginning or at the
termination of the usufruct. (472) Art. 439. By treasure is understood, for legal purposes, any
hidden and unknown deposit of money, jewelry, or other
a. Fruits growing at the beginning of the usufruct precious objects, the lawful ownership of which does not
appear.
They belong to the usufructuary who is not bound
to refund to the owner the expenses of cultivation 3. As to increase which the thing in usufruct may acquire
and production incurred for obviously the owner (Art. 571)
delivered his property to the usufructuary in its
condition at the time without thought of being Article 571. The usufructuary shall have the right to enjoy
reimbursed for such expenses or the parties must any increase which the thing in usufruct may acquire
have considered the matter in fixing the terms and through accession, the servitudes established in its favor,
conditions of the usufruct as when it was created and, in general, all the benefits inherent therein. (479)
by contract.
4. Transactions that the usufructuary may enter into (Art.
However, in case the expenses were incurred by 572)
innocent third persons, the usufructuary under
Article 443, pursuant to the last paragraph of Article 572. The usufructuary may personally enjoy the thing
Article 567, has the obligation to pay the expenses in usufruct, lease it to another, or alienate his right of
made. (see Art. 545; see 4 Manresa 390-391.) usufruct, even by a gratuitous title; but all the contracts he
may enter into as such usufructuary shall terminate upon the
b. Fruits growing at the termination of the usufruct expiration of the usufruct, saving leases of rural lands, which
shall be considered as subsisting during the agricultural year.
They belong to the owner but he is bound to (480)
reimburse the usufructuary the ordinary
cultivation expenses (see Art. 545.) out of the fruits NOTES:
received. (see Art. 443.) If the expenses exceed the
proceeds of the growing fruits, the owner has no The usufructuary may primarily enjoy the thing in usufruct,
obligation to reimburse the difference for the law that is, to possess the thing, use it, and receive its fruits.
says “from the proceeds of the growing fruits.’’
Again, the rights of third person in good faith are (1) With respect to the thing in usufruct. — He may lease it
protected. (Art. 568.) even without the owner’s consent (see Art. 590.)
but, not being the owner, the usufructuary, cannot alienate,
In connection with paragraph 2 of Article 567, pledge or mortgage (see Art. 2085[2].) the thing itself. He
Manresa is of the opinion that if at the termination may sell future crops subject to the rule that those
of the usufruct, force majeure should prevent the ungathered at the time when the usufruct terminates
usufructuary from gathering the fruits, said fruits belong to the owner.
shall belong to him and not to the naked owner.
He says that to give the fruits to the naked owner When the things given in usufruct cannot be used without
would be tantamount to making the usufructuary being consumed or were appraised when delivered, the
responsible for force majeure, condemning him to usufructuary may dispose of them. (see Art. 374.)
lose fruits by causes independent of his will. If the
usufruct is terminated by the death of the (2) With respect to the right of usufruct. — Since the
usufructuary then the fruits should go to his heirs. usufructuary is the owner of the right itself, he may
(see 4 Manresa 389.) alienate, pledge, or mortgage it, even by gratuitous title. It
has been held that after a usufructuary has donated her 8. Usufruct of judicial action to recover (Art. 578)
usufructuary right over certain properties, she cannot get it
back on the ground that she did not own the properties. Article 578. The usufructuary of an action to recover real
(Seifert v. Bachrach, 79 Phil. 748 [1947]) property or a real right, or any movable property, has the
right to bring the action and to oblige the owner thereof to
5. Abnormal usufructs (Art. 573 and 574) give him the authority for this purpose and to furnish him
whatever proof he may have. If in consequence of the
Article 573. Whenever the usufruct includes things which, enforcement of the action he acquires the thing claimed, the
without being consumed, gradually deteriorate through wear usufruct shall be limited to the fruits, the dominion
and tear, the usufructuary shall have the right to make use remaining with the owner. (486)
thereof in accordance with the purpose for which they are
intended, and shall not be obliged to return them at the 9. As to useful or luxurious improvements made by
termination of the usufruct except in their condition at that usufructuary (Art. 579)
time; but he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of his fraud Article 579. The usufructuary may make on the property
or negligence. (481) held in usufruct such useful improvements or expenses for
mere pleasure as he may deem proper, provided he does not
Article 574. Whenever the usufruct includes things which alter its form or substance; but he shall have no right to be
cannot be used without being consumed, the usufructuary indemnified therefor. He may, however, remove such
shall have the right to make use of them under the obligation improvements, should it be possible to do so without damage
of paying their appraised value at the termination of the to the property. (487)
usufruct, if they were appraised when delivered. In case they
were not appraised, he shall have the right to return the Moralidad v. Pernes, 2006
same quantity and quality, or pay their current price at the
time the usufruct ceases. (482) By express provision of law, respondents, as usufructuary,
do not have the right to reimbursement for the
6. Usufruct on fruit-bearing trees and shrubs (Art. 575, 576) improvements they may have introduced on the property.
We quote Articles 579 and 580 of the Civil Code. Given the
Article 575. The usufructuary of fruit-bearing trees and foregoing perspective, respondents will have to be ordered
shrubs may make use of the dead trunks, and even of those to vacate the premises without any right of reimbursement.
cut off or uprooted by accident, under the obligation to If the rule on reimbursement or indemnity were otherwise,
replace them with new plants. (483a) then the usufructuary might, as an author pointed out,
improve the owner out of his property. The respondents
Article 576. If in consequence of a calamity or extraordinary may, however, remove or destroy the improvements they
event, the trees or shrubs shall have disappeared in such may have introduced thereon without damaging the
considerable number that it would not be possible or it petitioner's property.
would be too burdensome to replace them, the usufructuary
may leave the dead, fallen or uprooted trunks at the disposal i. Right to set-off improvements (Art. 580)
of the owner, and demand that the latter remove them and
clear the land. (484a) Article 580. The usufructuary may set off the improvements
he may have made on the property against any damage to the
7. Usufruct of woodland and nurseries (Art. 577) same. (488)
Article 577. The usufructuary of woodland may enjoy all the NOTES: Necessary expenses are reimbursed as long as it is
benefits which it may produce according to its nature. spend for the capital and not to the usufruct.
If the woodland is a copse or consists of timber for building, “Set-off” means that even if the useful or luxurious
the usufructuary may do such ordinary cutting or felling as improvements can be removed, the usufructuary may
the owner was in the habit of doing, and in default of this, he choose not to remove them to set-off its value against any
may do so in accordance with the custom of the place, as to damage to the usufruct as a result of his fault or negligence.
the manner, amount and season.
10. Right of the naked owner to alienate property in usufruct
In any case the felling or cutting of trees shall be made in (Art. 581)
such manner as not to prejudice the preservation of the land.
Article 581. The owner of property the usufruct of which is
In nurseries, the usufructuary may make the necessary held by another, may alienate it, but he cannot alter its form
thinnings in order that the remaining trees may properly or substance, or do anything thereon which may be
grow. prejudicial to the usufructuary. (489)
With the exception of the provisions of the preceding 11. Effect of usufruct of part of a common property (Art. 582)
paragraphs, the usufructuary cannot cut down trees unless it
be to restore or improve some of the things in usufruct, and Article 582. The usufructuary of a part of a thing held in
in such case shall first inform the owner of the necessity for common shall exercise all the rights pertaining to the owner
the work. (485) thereof with respect to the administration and the collection
of fruits or interest. Should the co-ownership cease by reason
of the division of the thing held in common, the usufruct of sentimental value, he may demand their delivery to him
the part allotted to the co-owner shall belong to the upon his giving security for the payment of the legal interest
usufructuary. (490) on their appraised value. (495)
c. OBLIGATIONS OF THE USUFRUCTUARY (Arts. Article 588. After the security has been given by the
583-602, 612) usufructuary, he shall have a right to all the proceeds and
benefits from the day on which, in accordance with the title
Article 583. The usufructuary, before entering upon the constituting the usufruct, he should have commenced to
enjoyment of the property, is obliged: receive them. (496)
(1) To make, after notice to the owner or his
legitimate representative, an inventory of all the Article 589. The usufructuary shall take care of the things
property, which shall contain an appraisal of the given in usufruct as a good father of a family. (497)
movables and a description of the condition of the
immovables; Article 590. A usufructuary who alienates or leases his right
(2) To give security, binding himself to fulfill the of usufruct shall answer for any damage which the things in
obligations imposed upon him in accordance with usufruct may suffer through the fault or negligence of the
this Chapter. (491) person who substitutes him. (498)
Article 584. The provisions of No. 2 of the preceding article Article 591. If the usufruct be constituted on a flock or herd
shall not apply to the donor who has reserved the usufruct of of livestock, the usufructuary shall be obliged to replace with
the property donated, or to the parents who are the young thereof the animals that die each year from
usufructuaries of their children's property, except when the natural causes, or are lost due to the rapacity of beasts of
parents contract a second marriage. (492a) prey.
Article 585. The usufructuary, whatever may be the title of If the animals on which the usufruct is constituted should all
the usufruct, may be excused from the obligation of making perish, without the fault of the usufructuary, on account of
an inventory or of giving security, when no one will be some contagious disease or any other uncommon event, the
injured thereby. (493) usufructuary shall fulfill his obligation by delivering to the
owner the remains which may have been saved from the
Article 586. Should the usufructuary fail to give security in misfortune.
the cases in which he is bound to give it, the owner may
demand that the immovables be placed under administration, Should the herd or flock perish in part, also by accident and
that the movables be sold, that the public bonds, instruments without the fault of the usufructuary, the usufruct shall
of credit payable to order or to bearer be converted into continue on the part saved.
registered certificates or deposited in a bank or public
institution, and that the capital or sums in cash and the Should the usufruct be on sterile animals, it shall be
proceeds of the sale of the movable property be invested in considered, with respect to its effects, as though constituted
safe securities. on fungible things. (499a)
The interest on the proceeds of the sale of the movables and Article 592. The usufructuary is obliged to make the ordinary
that on public securities and bonds, and the proceeds of the repairs needed by the thing given in usufruct.
property placed under administration, shall belong to the
usufructuary. By ordinary repairs are understood such as are required by
the wear and tear due to the natural use of the thing and are
Furthermore, the owner may, if he so prefers, until the indispensable for its preservation. Should the usufructuary
usufructuary gives security or is excused from so doing, fail to make them after demand by the owner, the latter may
retain in his possession the property in usufruct as make them at the expense of the usufructuary. (500)
administrator, subject to the obligation to deliver to the
usufructuary the net proceeds thereof, after deducting the Article 593. Extraordinary repairs shall be at the expense of
sums which may be agreed upon or judicially allowed him the owner. The usufructuary is obliged to notify the owner
for such administration. (494) when the need for such repairs is urgent. (501)
Article 587. If the usufructuary who has not given security Article 594. If the owner should make the extraordinary
claims, by virtue of a promise under oath, the delivery of the repairs, he shall have a right to demand of the usufructuary
furniture necessary for his use, and that he and his family be the legal interest on the amount expended for the time that
allowed to live in a house included in the usufruct, the court the usufruct lasts.
may grant this petition, after due consideration of the facts of
the case. Should he not make them when they are indispensable for
the preservation of the thing, the usufructuary may make
The same rule shall be observed with respect to implements, them; but he shall have a right to demand of the owner, at
tools and other movable property necessary for an industry the termination of the usufruct, the increase in value which
or vocation in which he is engaged. the immovable may have acquired by reason of the repairs.
(502a)
If the owner does not wish that certain articles be sold
because of their artistic worth or because they have a
Article 595. The owner may construct any works and make Article 602. The expenses, costs and liabilities in suits
any improvements of which the immovable in usufruct is brought with regard to the usufruct shall be borne by the
susceptible, or make new plantings thereon if it be rural, usufructuary. (512)
provided that such acts do not cause a diminution in the
value of the usufruct or prejudice the right of the Article 612. Upon the termination of the usufruct, the thing
usufructuary. (503) in usufruct shall be delivered to the owner, without
prejudice to the right of retention pertaining to the
usufructuary or his heirs for taxes and extraordinary
Article 596. The payment of annual charges and taxes and of expenses which should be reimbursed. After the delivery has
those considered as a lien on the fruits, shall be at the been made, the security or mortgage shall be cancelled.
expense of the usufructuary for all the time that the usufruct (522a)
lasts. (504)
1. Before the usufruct begins (Art. 583)
Article 597. The taxes which, during the usufruct, may be
imposed directly on the capital, shall be at the expense of the Article 583. The usufructuary, before entering upon the
owner. enjoyment of the property, is obliged:
(1) To make, after notice to the owner or his
If the latter has paid them, the usufructuary shall pay him legitimate representative, an inventory of all the
the proper interest on the sums which may have been paid in property, which shall contain an appraisal of the
that character; and, if the said sums have been advanced by movables and a description of the condition of the
the usufructuary, he shall recover the amount thereof at the immovables;
termination of the usufruct. (505) (2) To give security, binding himself to fulfill the
obligations imposed upon him in accordance with
Article 598. If the usufruct be constituted on the whole of a this Chapter. (491)
patrimony, and if at the time of its constitution the owner
has debts, the provisions of articles 758 and 759 relating to i. Making of inventory
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of the The making of an inventory is not necessary before the
usufructuary to pay such debts. commencement of the right of the usufructuary or the
The same rule shall be applied in case the owner is obliged, coming into existence of the usufruct but is merely a
at the time the usufruct is constituted, to make periodical condition to be complied with before the usufructuary may
payments, even if there should be no known capital. (506) enter into the possession and enjoyment of the property.
(see 3 Sanchez Roman 574-575.)
Article 599. The usufructuary may claim any matured credits
which form a part of the usufruct if he has given or gives the (1) Previous notice to be given. — In the making of
proper security. If he has been excused from giving security the inventory, the concurrence of the naked owner is not
or has not been able to give it, or if that given is not required. Under the law, it is sufficient that he is notified of
sufficient, he shall need the authorization of the owner, or of such fact personally or through a legitimate representative.
the court in default thereof, to collect such credits. Note that the law says “legitimate,’’ not legal representative,
so that notice may be given in proper cases to the owner’s
The usufructuary who has given security may use the capital parents, spouse, guardian, administrator, or agent. The
he has collected in any manner he may deem proper. The owner has the right to ask for the correction of any error he
usufructuary who has not given security shall invest the said may find later. (see 4 Manresa 451-452.)
capital at interest upon agreement with the owner; in default
of such agreement, with judicial authorization; and, in every (2) Expenses of inventory. — The expenses of the
case, with security sufficient to preserve the integrity of the inventory should be borne by the usufructuary. The reason
capital in usufruct. (507) is that it is his duty to make the same.
Article 600. The usufructuary of a mortgaged immovable (3) Form of inventory. — Article 583 does not
shall not be obliged to pay the debt for the security of which provide for the form of inventory. It may, therefore, be
the mortgage was constituted. contained in a private document. However, a public
instrument is necessary to affect third persons when there
Should the immovable be attached or sold judicially for the are immovables. (see Art. 1358[2].)
payment of the debt, the owner shall be liable to the
usufructuary for whatever the latter may lose by reason (4) Contents of inventory. — The inventory shall
thereof. (509) contain an itemized list and an appraisal of the movables
and description of the condition of the immovables. The
Article 601. The usufructuary shall be obliged to notify the movables must be appraised because, compared to
owner of any act of a third person, of which he may have immovables, they are subject to greater danger of loss and
knowledge, that may be prejudicial to the rights of deterioration. Both kinds of property must be properly
ownership, and he shall be liable should he not do so, for identified.
damages, as if they had been caused through his own fault.
(511) a. When obligation excused (Art. 585)
Article 585. The usufructuary, whatever may be the title of property placed under administration, shall belong to the
the usufruct, may be excused from the obligation of making usufructuary.
an inventory or of giving security, when no one will be
injured thereby. (493) Furthermore, the owner may, if he so prefers, until the
usufructuary gives security or is excused from so doing,
NOTES: retain in his possession the property in usufruct as
administrator, subject to the obligation to deliver to the
The usufructuary may be excused from the obligation in the usufructuary the net proceeds thereof, after deducting the
following cases: sums which may be agreed upon or judicially allowed him
(1) Where the naked owner renounces or for such administration. (494)
waives his right to the inventory or security;
(2) Where the title constituting the NOTES:
usufruct relieves the usufructuary from the
obligation; and (1) On rights of owners. — Where the obligation to
(3) Where the usufructuary asks that he be give security or to file a bond is not excused or exempted,
exempted from the obligation and no one will be the failure of the usufructuary to comply with the same
injured thereby. entitles the naked owner for his protection to demand that
immovables be placed under administration or receivership,
No. (2) is frequently true in usufructs constituted by a last movables be sold, credit instruments be converted into
will and testament or by a deed of donation in view of the registered certificates or deposited, and cash and profits be
trust which the testator or donor has in the usufructuary. invested but the interest (12% per annum) on the proceeds
Under No. (3), the usufructuary may apply to the courts for of sale of movables and credit instruments, and the net
relief in case the naked owner refuses to grant the proceeds of immovables placed under administration shall
exemption where, for example, the usufruct is over the belong to the usufructuary. The naked owner gets the
right to receive a periodic income (e.g., rent) or pension. No proceeds of the sale of movables and credit instruments.
one will be injured by the exemption because the property
itself or the capital is not delivered to the usufructuary. (see The potestative right of retention and administration given
4 Manresa 464-467.) to the owner in paragraph 3 subsists until the usufructuary
gives security or is excused from so doing. The owner,
ii. Give security however, may choose not to exercise this right and deliver
the property to the usufructuary without renouncing his
The purpose of the giving of security or bond is to insure right to later on demand the security.
the fulfillment by the usufructuary of the obligations
imposed upon him including the duty to return to the (2) On rights of usufructuary. — Until he gives the
owner the thing in usufruct upon the termination of the proper security, the usufructuary cannot enter upon the
usufruct. possession and enjoyment of the property. Under Article
599, he may not collect any matured credits nor invest
The law does not specify the kind of security that should be capital in usufruct without the consent of the owner or
given. Hence, the security may be in the form of cash, a judicial authorization. The failure, however, to give security
personal bond, pledge, or mortgage as long as it is sufficient. does not extinguish the right of usufruct. (see Art. 603.)
Hence, the usufructuary may alienate his right to the
a. When obligation to give security inapplicable usufruct.
(Art. 584)
It is to be noted that Article 586, like Article 584, speaks
Article 584. The provisions of No. 2 of the preceding article only of “security.’’ It would seem that the failure of the
shall not apply to the donor who has reserved the usufruct of usufructuary to make an inventory, when not excused, does
the property donated, or to the parents who are not have the same effect as when security is not given. The
usufructuaries of their children's property, except when the owner can always demand the inventory and hold the
parents contract a second marriage. (492a) usufructuary liable for whatever prejudice caused by his
failure to make the same.
b. Effects of failure to give security (Art. 586)
c. In lieu of security (Art. 587)
Article 586. Should the usufructuary fail to give security in
the cases in which he is bound to give it, the owner may Article 587. If the usufructuary who has not given security
demand that the immovables be placed under administration, claims, by virtue of a promise under oath, the delivery of the
that the movables be sold, that the public bonds, instruments furniture necessary for his use, and that he and his family be
of credit payable to order or to bearer be converted into allowed to live in a house included in the usufruct, the court
registered certificates or deposited in a bank or public may grant this petition, after due consideration of the facts of
institution, and that the capital or sums in cash and the the case.
proceeds of the sale of the movable property be invested in
safe securities. The same rule shall be observed with respect to implements,
tools and other movable property necessary for an industry
The interest on the proceeds of the sale of the movables and or vocation in which he is engaged.
that on public securities and bonds, and the proceeds of the
If the owner does not wish that certain articles be sold If the animals on which the usufruct is constituted should all
because of their artistic worth or because they have a perish, without the fault of the usufructuary, on account of
sentimental value, he may demand their delivery to him some contagious disease or any other uncommon event, the
upon his giving security for the payment of the legal interest usufructuary shall fulfill his obligation by delivering to the
on their appraised value. (495) owner the remains which may have been saved from the
misfortune.
NOTES:
Should the herd or flock perish in part, also by accident and
This article applies when the usufructuary who is under without the fault of the usufructuary, the usufruct shall
obligation to give security cannot afford to do so and no one continue on the part saved.
is willing to give security for them.
Should the usufruct be on sterile animals, it shall be
(1) The court, on humane consideration (as when a considered, with respect to its effects, as though constituted
poor family badly in need of a house acquires the same in on fungible things. (499a)
usufruct by inheritance or donation), may allow the
usufructuary to enjoy the property upon taking an oath — iv. To make repairs
“by virtue of a promise under oath’’ (caucion juratoria) — to
take care of the property (Art. 589.), and retain it until the a. Ordinary repairs (Art. 592)
termination of the usufruct (Art. 612) in lieu of giving
security. So, the usufructuary cannot alienate or lease the Article 592. The usufructuary is obliged to make the ordinary
property under a sworn undertaking, for this means that he repairs needed by the thing given in usufruct.
does need it. (4 Manresa 473-474.)
By ordinary repairs are understood such as are required by
(2) The usufructuary must first ask the naked the wear and tear due to the natural use of the thing and are
owner to grant him the rights mentioned, and should the indispensable for its preservation. Should the usufructuary
latter refuse, he may resort to the courts. fail to make them after demand by the owner, the latter may
make them at the expense of the usufructuary. (500)
Articles with artistic or sentimental value may not be sold.
(Art. 586) The owner may demand their delivery to him if b. Extraordinary repairs (Art. 593, 594)
he gives security to the usufructuary for the payment of the
legal interest on their appraised value. Article 593. Extraordinary repairs shall be at the expense of
the owner. The usufructuary is obliged to notify the owner
2. During the usufruct when the need for such repairs is urgent. (501)
i. To take care of the property (Art. 589) Article 594. If the owner should make the extraordinary
repairs, he shall have a right to demand of the usufructuary
Article 589. The usufructuary shall take care of the things the legal interest on the amount expended for the time that
given in usufruct as a good father of a family. (497) the usufruct lasts.
ii. Liability for fault or negligence of substitute (Art. Should he not make them when they are indispensable for
590) the preservation of the thing, the usufructuary may make
them; but he shall have a right to demand of the owner, at
Article 590. A usufructuary who alienates or leases his right the termination of the usufruct, the increase in value which
of usufruct shall answer for any damage which the things in the immovable may have acquired by reason of the repairs.
usufruct may suffer through the fault or negligence of the (502a)
person who substitutes him. (498)
NOTES:
NOTES:
Meaning of extraordinary repairs — They are repairs which
The usufructuary is the owner of the right of usufruct. He are not ordinary. By implication from the definition of
may, therefore, alienate or lease his right. (Art. 572.) ordinary repairs in Article 592, the following are
However, the usufructuary shall be liable to the owner for extraordinary repairs:
any damage which the property in usufruct may suffer (a) Those required by the wear and tear
through the fault or negligence (also fraud or willful acts) of due to the natural use of the thing but not
the substitute without prejudice to his right of action indispensable for its preservation;
against the latter. (b) Those required by the deterioration of
or damage to the thing caused by exceptional
iii. To replace things in usufruct (Art. 591) circumstances but not indispensable for its
preservation; and
Article 591. If the usufruct be constituted on a flock or herd (c) Those required by the deterioration of
of livestock, the usufructuary shall be obliged to replace with or damage to the thing caused by exceptional
the young thereof the animals that die each year from circumstances and are indispensable for its
natural causes, or are lost due to the rapacity of beasts of preservation.
prey.
i. To notify naked owner (Art. 593)
viii. To secure the naked owner’s or court’s approval
v. Permit works and improvements by naked owner to collect credits in certain cases (Art. 599)
(Art. 595)
Article 599. The usufructuary may claim any matured credits
Article 595. The owner may construct any works and make which form a part of the usufruct if he has given or gives the
any improvements of which the immovable in usufruct is proper security. If he has been excused from giving security
susceptible, or make new plantings thereon if it be rural, or has not been able to give it, or if that given is not
provided that such acts do not cause a diminution in the sufficient, he shall need the authorization of the owner, or of
value of the usufruct or prejudice the right of the the court in default thereof, to collect such credits
usufructuary. (503)
The usufructuary who has given security may use the capital
vi. To pay annual taxes or charges (Art. 597) he has collected in any manner he may deem proper. The
usufructuary who has not given security shall invest the said
Art. 596. The payment of annual charges and taxes and of capital at interest upon agreement with the owner; in default
those considered as a lien on the fruits, shall be at the of such agreement, with judicial authorization; and, in every
expense of the usufructuary for all the time that the usufruct case, with security sufficient to preserve the integrity of the
lasts. (504) capital in usufruct. (507)
Article 597. The taxes which, during the usufruct, may be NOTES:
imposed directly on the capital, shall be at the expense of the
owner. (1) If the usufructuary has given sufficient security,
he may claim matured credits forming part of the usufruct,
If the latter has paid them, the usufructuary shall pay him collect them, and use and invest, with or without interest,
the proper interest on the sums which may have been paid in the capital he has collected, in any manner he may deem
that character; and, if the said sums have been advanced by proper.
the usufructuary, he shall recover the amount thereof at the
termination of the usufruct. (505) (2) If he has not given security, or that given is not
sufficient, or he has been excused from giving security (see
vii. To pay debts when the usufruct is constituted on Arts. 584, 585, 587.) he may collect the credits and invest
the whole of a patrimony (Art. 598) the capital which must be at interest, with the consent of
the naked owner or approval of the court. The credits
Article 598. If the usufruct be constituted on the whole of a themselves which constitute the capital belong to the naked
patrimony, and if at the time of its constitution the owner owner but the usufructuary has the right to use and invest
has debts, the provisions of articles 758 and 759 relating to them, and to receive the interest therefrom.
donations shall be applied, both with respect to the
maintenance of the usufruct and to the obligation of the In every case, the investment of capital must be with
usufructuary to pay such debts. sufficient security to preserve its integrity.
The same rule shall be applied in case the owner is obliged, ix. To notify owner of any prejudicial act committed
at the time the usufruct is constituted, to make periodical by third persons (Art. 601)
payments, even if there should be no known capital. (506)
Article 601. The usufructuary shall be obliged to notify the
NOTES: owner of any act of a third person, of which he may have
knowledge, that may be prejudicial to the rights of
Article 598 applies to a universal usufruct or one which ownership, and he shall be liable should he not do so, for
covers the entire patrimony of the owner, and at the time of damages, as if they had been caused through his own fault.
its constitution, by donation or any other acts inter vivos, (511)
he has debts, whether secured or unsecured, or is bound to
make periodical payments even if, in the latter case, there x. To pay court expenses and costs regarding the
should be no known capital. The liability of the usufruct (Art. 602)
usufructuary for the debts of the naked owner is the same as
that of the donee under Articles 758 and 759. Article 602. The expenses, costs and liabilities in suits
brought with regard to the usufruct shall be borne by the
(1) When there is a stipulation for the payment by the usufructuary. (512)
usufructuary of the debts of the owner, the former is liable
only for debts contracted by the latter before the xi. Usufruct of mortgaged immovables (Art. 600)
constitution of the usufruct.
Article 600. The usufructuary of a mortgaged immovable
(2) In the absence of stipulation, the usufructuary shall be shall not be obliged to pay the debt for the security of which
responsible only when the usufruct was created in fraud of the mortgage was constituted.
creditors which is always presumed when the owner did
not reserve sufficient property to pay his debts prior to the Should the immovable be attached or sold judicially for the
creation of the usufruct. (see Art. 1387.) payment of the debt, the owner shall be liable to the
usufructuary for whatever the latter may lose by reason
thereof. (509)
(6) By the termination of the right of the person
3. At the termination of the usufruct constituting the usufruct;
(7) By prescription. (513a)
i. To return the thing in usufruct (Art. 612)
Article 604. If the thing given in usufruct should be lost only
Article 612. Upon the termination of the usufruct, the thing in part, the right shall continue on the remaining part. (514)
in usufruct shall be delivered to the owner, without
prejudice to the right of retention pertaining to the Article 605. Usufruct cannot be constituted in favor of a
usufructuary or his heirs for taxes and extraordinary town, corporation, or association for more than fifty years. If
expenses which should be reimbursed. After the delivery has it has been constituted, and before the expiration of such
been made, the security or mortgage shall be cancelled. period the town is abandoned, or the corporation or
(522a) association is dissolved, the usufruct shall be extinguished by
reason thereof. (515a)
ii. To pay legal interest for the time that the usufruct
lasts, on the amount spent by the owner for Article 606. A usufruct granted for the time that may elapse
extraordinary repairs (Art. 594) and the proper before a third person attains a certain age, shall subsist for
interest on the sums paid as taxes by the owner (Art. the number of years specified, even if the third person
597) should die before the period expires, unless such usufruct has
been expressly granted only in consideration of the existence
Article 594. If the owner should make the extraordinary of such person. (516)
repairs, he shall have a right to demand of the usufructuary
the legal interest on the amount expended for the time that Article 607. If the usufruct is constituted on immovable
the usufruct lasts. property of which a building forms part, and the latter
should be destroyed in any manner whatsoever, the
Should he not make them when they are indispensable for usufructuary shall have a right to make use of the land and
the preservation of the thing, the usufructuary may make the materials.
them; but he shall have a right to demand of the owner, at
the termination of the usufruct, the increase in value which The same rule shall be applied if the usufruct is constituted
the immovable may have acquired by reason of the repairs. on a building only and the same should be destroyed. But in
(502a) such a case, if the owner should wish to construct another
building, he shall have a right to occupy the land and to
Article 597. The taxes which, during the usufruct, may be make use of the materials, being obliged to pay to the
imposed directly on the capital, shall be at the expense of the usufructuary, during the continuance of the usufruct, the
owner. interest upon the sum equivalent to the value of the land and
of the materials. (517)
If the latter has paid them, the usufructuary shall pay him
the proper interest on the sums which may have been paid in Article 608. If the usufructuary shares with the owner the
that character; and, if the said sums have been advanced by insurance of the tenement given in usufruct, the former
the usufructuary, he shall recover the amount thereof at the shall, in case of loss, continue in the enjoyment of the new
termination of the usufruct. (505) building, should one be constructed, or shall receive the
interest on the insurance indemnity if the owner does not
iii. To indemnify the naked owner for any losses due wish to rebuild.
to his negligence or his transferees (Art. 589-590)
Should the usufructuary have refused to contribute to the
Article 589. The usufructuary shall take care of the things insurance, the owner insuring the tenement alone, the latter
given in usufruct as a good father of a family. (497) shall receive the full amount of the insurance indemnity in
case of loss, saving always the right granted to the
Article 590. A usufructuary who alienates or leases his right usufructuary in the preceding article. (518a)
of usufruct shall answer for any damage which the things in
usufruct may suffer through the fault or negligence of the Article 609. Should the thing in usufruct be expropriated for
person who substitutes him. (498) public use, the owner shall be obliged either to replace it
with another thing of the same value and of similar
d. EXTINGUISHMENT OF THE USUFRUCT (Arts. conditions, or to pay the usufructuary the legal interest on
603-612) the amount of the indemnity for the whole period of the
usufruct. If the owner chooses the latter alternative, he shall
Article 603. Usufruct is extinguished: give security for the payment of the interest. (519)
(1) By the death of the usufructuary, unless a
contrary intention clearly appears; Article 610. A usufruct is not extinguished by bad use of the
(2) By the expiration of the period for which it was thing in usufruct; but if the abuse should cause considerable
constituted, or by the fulfillment of any resolutory injury to the owner, the latter may demand that the thing be
condition provided in the title creating the usufruct; delivered to him, binding himself to pay annually to the
(3) By merger of the usufruct and ownership in the usufructuary the net proceeds of the same, after deducting
same person; the expenses and the compensation which may be allowed
(4) By renunciation of the usufructuary; him for its administration. (520)
(5) By the total loss of the thing in usufruct;
Article 611. A usufruct constituted in favor of several persons 3. Usufruct in favor of juridical or non-juridical entities (Art.
living at the time of its constitution shall not be extinguished 605)
until the death of the last survivor. (521)
Article 605. Usufruct cannot be constituted in favor of a
Article 612. Upon the termination of the usufruct, the thing town, corporation, or association for more than fifty years. If
in usufruct shall be delivered to the owner, without it has been constituted, and before the expiration of such
prejudice to the right of retention pertaining to the period the town is abandoned, or the corporation or
usufructuary or his heirs for taxes and extraordinary association is dissolved, the usufruct shall be extinguished by
expenses which should be reimbursed. After the delivery has reason thereof. (515a)
been made, the security or mortgage shall be cancelled.
(522a) NHA v. CA, 2005
1. Modes of extinguishment (Art. 603) The law clearly limits any usufruct constituted in favor of a
corporation or association to 50 years. A usufruct is meant
Article 603. Usufruct is extinguished: only as a lifetime grant. Unlike a natural person, a
(1) By the death of the usufructuary, unless a corporation or association's lifetime may be extended
contrary intention clearly appears; indefinitely. The usufruct would then be perpetual. This is
(2) By the expiration of the period for which it was especially invidious in cases where the usufruct given to a
constituted, or by the fulfillment of any resolutory corporation or association covers public land. Proclamation
condition provided in the title creating the usufruct; No. 1670 was issued 19 September 1977, or 28 years ago.
(3) By merger of the usufruct and ownership in the Hence, under Article 605, the usufruct in favor of MSBF has
same person; 22 years left.
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct; 4. Usufruct with duration dependent on age of a third person
(6) By the termination of the right of the person (Art. 606)
constituting the usufruct;
(7) By prescription. (513a) Article 606. A usufruct granted for the time that may elapse
before a third person attains a certain age, shall subsist for
NOTES: the number of years specified, even if the third person
should die before the period expires, unless such usufruct has
Besides those enumerated in Article 603, other causes for been expressly granted only in consideration of the existence
extinguishment of usufruct are annulment or rescission of of such person. (516)
the contract creating the usufruct, mutual consent, and
special causes provided for by other legal provisions, such as NOTES: An example when the usufruct is expressly granted
emancipation of a child (by attainment of age of majority or only in consideration of the existence of a person is when
marriage of a minor) which terminates parental usufruct the usufructuary will use the usufruct for the support of
over the property of the child. (see Arts. 225, 226, 234, such person.
Family Code.)
5. Where usufruct on land and building, and building
Buluran v. Navarro, 1977 destroyed (Art. 607)
With the material possession being the only one Article 607. If the usufruct is constituted on immovable
transferred, all that the parties acquired was the right of property of which a building forms part, and the latter
usufruct which in essence is the right to enjoy the property should be destroyed in any manner whatsoever, the
of another. Under the document in question, spouses usufructuary shall have a right to make use of the land and
Paraiso would harvest the crop of the unirrigated riceland the materials.
while the other party, Avelino Baluran, could build a house
on the residential lot, subject, however, to the condition, The same rule shall be applied if the usufruct is constituted
that when any of the children of Natividad Paraiso on a building only and the same should be destroyed. But in
Obedencio, daughter of spouses Paraiso, shall choose to such a case, if the owner should wish to construct another
reside in the municipality and build his house on the building, he shall have a right to occupy the land and to
residential lot, Avelino Baluran shall be obliged to return make use of the materials, being obliged to pay to the
the lot to said children "with damages to be incurred." usufructuary, during the continuance of the usufruct, the
(Condition No. 2 of the Agreement) Thus, the mutual interest upon the sum equivalent to the value of the land and
agreement — each party enjoying "material possession" of of the materials. (517)
the other's property — was subject to a resolutory condition
the happening of which would terminate the right of NOTES:
possession and use.
The same rule applies although the usufruct does not cover
2. Effect of partial loss (Art. 604) the land for the simple reason that the use of the building
necessarily involves the use of the land.
Article 604. If the thing given in usufruct should be lost only
in part, the right shall continue on the remaining part. (514) But for the very reason that the land is not included in the
usufruct, the owner is given the preferential right to
construct another building, occupy the land and make use
of the material even against the objection of the
usufructuary. The only right of the usufructuary is to
receive during the continuance of the usufruct, legal
interest on the value of the land and of the materials. (par.
2; see Lopez v. Constantino, 74 Phil. 160 [1943]; Vda. de
Albar v. Carandang, supra.)
8. Usufruct in favor of several persons (Art. 611) a. EASEMENTS IN GENERAL (Arts. 613-633)
Article 611. A usufruct constituted in favor of several persons Article 613. An easement or servitude is an encumbrance
living at the time of its constitution shall not be extinguished imposed upon an immovable for the benefit of another
until the death of the last survivor. (521) immovable belonging to a different owner.
Policarpio v. Asuncion, 1966 The immovable in favor of which the easement is established
is called the dominant estate; that which is subject thereto,
If the theory of appellee in the sense that the death of the the servient estate. (530)
three usufructuaries has the effect of consolidating their
rights with that of the naked owner were correct, Article Article 614. Servitudes may also be established for the
611 of the Civil Code would be superfluous, because Article benefit of a community, or of one or more persons to whom
603 already provides that the death of the usufructuary the encumbered estate does not belong. (531)
extinguishes the usufruct unless the contrary appears.
Furthermore, said theory would cause a partial extinction of Article 615. Easements may be continuous or discontinuous,
the usufruct, contrary to the provisions of Article 611 apparent or nonapparent.
which expressly provides that the usufruct shall not be
extinguished until the death of the last survivor. The theory Continuous easements are those the use of which is or may
of appellee cannot, therefore, be entertained. be incessant, without the intervention of any act of man.
Article 616. Easements are also positive or negative. Article 625. Upon the establishment of an easement, all the
rights necessary for its use are considered granted. (542)
A positive easement is one which imposes upon the owner of
the servient estate the obligation of allowing something to be Article 626. The owner of the dominant estate cannot use the
done or of doing it himself, and a negative easement, that easement except for the benefit of the immovable originally
which prohibits the owner of the servient estate from doing contemplated. Neither can he exercise the easement in any
something which he could lawfully do if the easement did other manner than that previously established. (n)
not exist. (533)
SECTION 3
Article 617. Easements are inseparable from the estate to Rights and Obligations of the Owners of the Dominant and
which they actively or passively belong. (534) Servient Estates
The definition given in Article 613 is not complete, being 3. Vs. Lease
limited to real easement. In view of Article 614 which
refers to personal easement, the term may be defined as an They are as follows:
encumbrance imposed upon an immovable for the benefit (1) Easement is a real right, whether registered or
of another immovable belonging to a different owner or for not, and whether it is real or personal, while lease is a real
the benefit of a community or one or more persons to right only when it is registered, or when its subject matter
whom the encumbered estate does not belong by virtue of is real property and the duration exceeds one year (see Art.
which the owner is obliged to abstain from doing or to 1878[8].);
permit a certain thing to be done on his estate. (2) Easement is imposed only on real property,
while lease may involve either real or personal property;
Easement is an English law term while servitude, which is and
derived from Roman Law is the name used in civil law (3) In easement, there is a limited right to the use
countries. However, they do not exactly have the same of real property of another but without the right of
meaning. Servitude is the broader term. It may be real or possession, while in lease, there is a limited right to both
personal. Easement is always real. It is said that easement the possession and use of another’s property.
refers to the right enjoyed by one, and servitude, the
burden imposed upon another. (I Bouvier’s Law Dictionary, The last distinction has been illustrated as follows: “There
p. 967.) are two distinct methods in which I may acquire a road
across another man’s property. I may agree with him for the
2. Characteristics (Art. 617, 618) exclusive possession of a defined strip land; or I may agree
with him for the use of such a strip for the sole purpose of
Article 617. Easements are inseparable from the estate to passage, without any exclusive possession or occupation of
which they actively or passively belong. (534)
it. In the first case, I acquire a lease; in the second, a
servitude.’’ (Salmond, Jurisprudence, p. 459) NOTES:
(2) As to its source: Continuous easements are those the use of which is or may
(a) Voluntary. — When the easement is established be incessant, without the intervention of any act of man.
by the will or agreement of the parties or by a
testator (Art. 619.); Discontinuous easements are those which are used at
(b) Legal. — When it is imposed by law either for intervals and depend upon the acts of man.
public use or in the interest of private persons
(Ibid.; Arts. 637-687.); or Apparent easements are those which are made known and
(c) Mixed. — When it is created partly by will or are continually kept in view by external signs that reveal the
agreement and partly by law. use and enjoyment of the same.
(3) As to its exercise: Nonapparent easements are those which show no external
(a) Continuous. — See Article 615; or indication of their existence. (532)
(b) Discontinuous. — (Ibid.)
NOTES:
(4) As to whether or not its existence is indicated:
(a) Apparent. — (Ibid.); or Continuous and discontinuous easements
(b) Non-apparent. — (Ibid.) These two kinds of easements are defined on the
above provision.
(5) As to duty of servient owner:
(a) Positive. — See Article 616; or (1) For an easement to be continuous, it is not
(b) Negative. — (Ibid.) necessary that the use be incessant; it is sufficient
that the use may be so. Examples are the right to
i. As to recipient of benefit support a beam on another’s wall which really
exists continuously and the right of aqueduct
Article 614. Servitudes may also be established for the which may be used only on certain days depending
benefit of a community, or of one or more persons to whom on the need for water but which is continuous
the encumbered estate does not belong. (531)
since its use does not depend upon the intervention easement can never consist in a personal prestation
of man. (see Art. 646.) to do on the part of the owner of the servient
estate.
(2) An example of discontinuous servitude is the
right of way (see Arts. 649[par. 3], 656.) which is Although Article 616 seems to imply that the
used at intervals because it is physically impossible servient owner may be required to do something,
that man shall continually pass over the way. (see 4 this obligation has an accessory character and does
Manresa 597.) not represent the fundamental essence of servitude.
Thus, under Article 680, the owner of a tree whose
The easement itself, whether continuous or branches extend over a neighboring estate, may be
discontinuous, exists continuously, whether it is required to cut-off so much of the branches
being used or not, but its exercise may be extending over the said estate.
continuous or discontinuous, or there may be no
exercise at all. The distinction lies in the fact that But the real exercise of the easement in this case is
in continuous easements, the exercise or enjoyment negative — the obligation of the servient owner
can be had without the intervention of man while not to allow the branches of his tree to extend
in discontinuous easements, such exercise or beyond his property. (II Tolentino, Civil Code of
enjoyment requires the intervention of man. In the Philippines, 321, 325; see 4 Manresa 604)
both easements, the benefit and burden exist from
the moment the easements are created. (2) An example of negative easement is the
easement of light and view (Art. 670.) whereby the
Apparent and non-apparent easements owner of the servient estate is prohibited from
These two kinds of easements are likewise defined obstructing the passage of light. It may also be
in Article 615. positive depending upon the manner by which it is
exercised.
(1) To constitute an apparent easement, it is not
necessary that its sign be seen; it is sufficient if it When the opening or window is made on another’s
may be seen or known on inspection. The sign or wall (wall of servient estate) or on a party wall, the
signs may be encountered, according to the easement acquired is positive because the owner of
circumstances, in the dominant or servient estate. the wall allows the servitude to burden his wall. If
Thus, the sign of the easement of view is found in the window is through one’s own wall (wall of the
the dominant estate, while that of aqueduct, in the dominant estate) which does not extend over
servient estate. another’s property (servient estate), the easement is
negative. (see Art. 668; Cortes v. Yu-Tibo, 2 Phil.
(2) An example of non-apparent easement is a right 24 [1903])
of way when there is no indication of its existence.
A right of way is apparent when there is a visible iv. As to source (Art. 619)
road or path to show its exercise. In general,
negative easements (Art. 616.) are non-apparent. Article 619. Easements are established either by law or by
the will of the owners. The former are called legal and the
The easement of aqueduct is usually apparent, but latter easements. (536)
if it is exercised through an underground channel,
the easement becomes non-apparent. However, it NOTES:
is considered apparent by express provision of
Article 646. (4 Manresa 549) The courts cannot impose or constitute any
servitude where none existed. They can only
iii. As to duty of servient owner (Art. 616) declare its existence if in reality it exists by law or
by the will of the owners. There are, therefore, no
Article 616. Easements are also positive or negative. judicial easements. (see 4 Manresa 621.)
A positive easement is one which imposes upon the owner of Voluntary easements must be recorded in the
the servient estate the obligation of allowing something to be Registry of Property in order not to prejudice third
done or of doing it himself, and a negative easement, that persons. (Art. 708.)
which prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement did 6. Modes of Acquiring Easements
not exist. (533)
i. For continuous and apparent easements (Art. 620)
NOTES:
Article 620. Continuous and apparent easements are acquired
They are defined by the above provision. either by virtue of a title or by prescription of ten years.
(537a)
(1) An example of positive easement is the
easement of the right of way which imposes upon NOTES:
the owner of the servient estate the duty to allow
the use of said way. It has been opined that an
Only continuous and apparent easements may be
acquired either by virtue of a title or by Article 621. In order to acquire by prescription the
prescription in ten years. The other kinds of easements referred to in the preceding article, the time of
easements may be acquired by any one of the possession shall be computed thus: in positive easements,
modes enumerated but not by prescription. from the day on which the owner of the dominant estate, or
the person who may have made use of the easement,
By “title’’ refers to the juridical act which gives commenced to exercise it upon the servient estate; and in
birth to the easement, such as law, donation, negative easements, from the day on which the owner of the
contract, and will of the testator. (see 4 Manresa dominant estate forbade, by an instrument acknowledged
624-625.) Article 620 fixes ten years as the period before a notary public, the owner of the servient estate, from
of prescription, regardless of the good faith or bad executing an act which would be lawful without the
faith of the possessor and whether or not he has easement. (538a)
just title. The general rules on prescription do not
apply (see Art. 1115.), the only requirement being NOTES:
that there be adverse possession (exercise) of the
easement for ten years. As already stated, the easement of light and view
may be positive and negative depending upon the
a. Computation of prescriptive period (Art. 621) manner of its exercise. (see Art. 616.)
Article 621. In order to acquire by prescription the (1) If made on one’s own wall and the wall does not
easements referred to in the preceding article, the time of extend over the property of another, the easement
possession shall be computed thus: in positive easements, is negative because the owner is merely exercising
from the day on which the owner of the dominant estate, or his inherent right of dominion and not of an
the person who may have made use of the easement, easement. The servient owner cannot close it up;
commenced to exercise it upon the servient estate; and in otherwise, he will be liable for trespass. But the
negative easements, from the day on which the owner of the negative easement is not automatically vested. The
dominant estate forbade, by an instrument acknowledged owner must make the prohibition required upon
before a notary public, the owner of the servient estate, from the proprietor of the adjoining land or tenement
executing an act which would be lawful without the (Art. 668[2].) to prevent him from obstructing the
easement. (538a) light and view by the construction of an
overshadowing structure on his land, a thing he
NOTES: can lawfully do were it not for the existence of the
easement. If the latter consents to such prohibition
Continuous and apparent easements may be either and the period fixed by law expires, the easement
positive or negative. (Art. 616.) will be acquired by prescription.
If the easement is positive, the period is counted There is no true easement for as long as the right to
from the day on which the owner of the dominant prohibit its exercise exists. (Cortes v. Yu-Tibo, 2
estate began to exercise it (e.g., from the day a Phil. 24 [1903]; Fabie v. Lichauco, 11 Phil. 14
window was built in a party wall); if negative, from [1908])
the day on which a notarial prohibition was made
on the servient estate. (2) Now, if made through a party wall or on one’s
own wall which extends over the neighboring
The old Civil Code requires “a formal act.’’ Now, estate, the easement acquired is positive because
the prohibition must be “by an instrument the owner of the latter estate who has a right to
acknowledged before a notary public,’’ a public act, close it up allows an encumbrance on his property.
and hence, more difficult to execute because of its The period of prescription shall be counted from
publicity and the expense connected therewith. (I the time of the opening of the window. (Art.
Capistrano, op. cit., p. 555.) An oral prohibition is 668[1]; see Relova v. Lavarez, supra.)
not sufficient; nor any writing, but one executed in
due form and solemn formalities because easements ii. For continuous non-apparent easements and
constitute an encumbrance on the servient owner’s discontinuous ones (Apparent or Non-Apparent)
rights of ownership. (Cid v. Javier, 108 Phil. 850 (Art. 622)
[1960])
Article 622. Continuous nonapparent easements, and
Note: Under Article 622, non-apparent easements discontinuous ones, whether apparent or not, may be
may not be acquired by prescription. Negative acquired only by virtue of a title. (539)
easements are essentially nonapparent. However,
Article 621 provides the prescriptive period for NOTES:
negative easements. The notarial prohibition may
be taken as making the easement apparent and, Continuous and apparent easements are the only
therefore, prescriptible. easements that can be acquired by prescription
because they are the only ones the possession of
b. Computation: Easement of Light and View (Art. which fulfills two important requisites required by
621) law for prescription, to wit: that the possession be
public and continuous. (I Capistrano, op. cit., p.
554) (1) In case the owner alienates either of them or
both of them with the result that the ownership
The easements mentioned in Article 622 may be thereof is divided, the easement shall “continue’’
acquired by title, but not by prescription, because unless the contrary has been stipulated in the title
their possession or exercise is either not public of conveyance of either of them or the sign
(non-apparent) such as easement of lateral and removed before the execution of the deed.
subjacent support (Arts. 684-687.), or it is public Actually, the easement does not “continue,’’ for it
but not continuous or uninterrupted arises or is constituted for the first time only upon
(discontinuous), such as right of way if there is a alienation of either estate, inasmuch as before that
visible path. (see Ronquillo v. Roco, 63 Phil. 86 time, there was no easement to speak of, there is
[1958]; see Art. 1118.) However, for legal purposes, but one owner of both estates. (Gargantos v. Tan
the easement of aqueduct shall be considered as Yanon, 108 Phil. 888 [1960])
continuous and apparent, although it is not really
so. (Art. 646.) (2) Article 624 applies in case of the division of a
common property by the co-owners as the effect is
a. Deed of Recognition or Final Judgment (Art. 623) the same as an alienation, or there is only one
estate and a part thereof is alienated.
Article 623. The absence of a document or proof showing the
origin of an easement which cannot be acquired by The provision is, of course, not applicable in case
prescription may be cured by a deed of recognition by the the two estates or portions of the same estate
owner of the servient estate or by a final judgment. (540a) remain or continue to be in the same owner after
alienation or partition.
NOTES:
7. Rights and obligations of the dominant owner and the
Article 623 applies to the easements mentioned in servient owner (Arts. 625-630)
Article 622. It presupposes that there is a “title’’ for
the easement, i.e., that it has been acquired by Article 625. Upon the establishment of an easement, all the
virtue of a title but there is no document or proof rights necessary for its use are considered granted. (542)
showing its origin.
Article 626. The owner of the dominant estate cannot use the
The easement may have been acquired by oral easement except for the benefit of the immovable originally
contract, or by virtue of some documents that has contemplated. Neither can he exercise the easement in any
been lost. In either case, easement exists. The other manner than that previously established. (n)
owner of the servient estate may voluntarily
execute the deed referred to in Article 623 SECTION 3
acknowledging the existence of the easement. If he Rights and Obligations of the Owners of the Dominant and
refuses or denies the existence of the easement, the Servient Estates
court, in an action for the purpose and upon
sufficient proof, may, in its judgment, declare such
existence. (4 Manresa 642) Article 627. The owner of the dominant estate may make, at
his own expense, on the servient estate any works necessary
iii. Alienation by same owner of two estates with for the use and preservation of the servitude, but without
sign of existence of servitude (Art. 624) altering it or rendering it more burdensome.
Article 624. The existence of an apparent sign of easement For this purpose he shall notify the owner of the servient
between two estates, established or maintained by the owner estate, and shall choose the most convenient time and
of both, shall be considered, should either of them be manner so as to cause the least inconvenience to the owner
alienated, as a title in order that the easement may continue of the servient estate. (543a)
actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided in Article 628. Should there be several dominant estates, the
the title of conveyance of either of them, or the sign owners of all of them shall be obliged to contribute to the
aforesaid should be removed before the execution of the expenses referred to in the preceding article, in proportion to
deed. This provision shall also apply in case of the division of the benefits which each may derive from the work. Anyone
a thing owned in common by two or more persons. (541a) who does not wish to contribute may exempt himself by
renouncing the easement for the benefit of the others.
NOTES:
If the owner of the servient estate should make use of the
This provision contemplates a situation where two easement in any manner whatsoever, he shall also be obliged
estates between which there exists an apparent sign to contribute to the expenses in the proportion stated, saving
(e.g., window, road) of an easement, belong to the an agreement to the contrary. (544)
same owner. What the law requires is that the sign
indicates the existence of a servitude although Article 629. The owner of the servient estate cannot impair,
there is no true servitude there being only one in any manner whatsoever, the use of the servitude.
owner.
Nevertheless, if by reason of the place originally assigned, or and regulations relating thereto, and, in the absence thereof,
of the manner established for the use of the easement, the by the provisions of this Title. (550)
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any Article 636. Easements established by law in the interest of
important works, repairs or improvements thereon, it may be private persons or for private use shall be governed by the
changed at his expense, provided he offers another place or provisions of this Title, without prejudice to the provisions of
manner equally convenient and in such a way that no injury general or local laws and ordinances for the general welfare.
is caused thereby to the owner of the dominant estate or to
those who may have a right to the use of the easement. (545) These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or
Article 630. The owner of the servient estate retains the no injury is suffered by a third person. (551a)
ownership of the portion on which the easement is
established, and may use the same in such a manner as not to SECTION 2
affect the exercise of the easement. (n) Easements Relating to Waters
8. Modes of extinguishment of easements Article 637. Lower estates are obliged to receive the waters
which naturally and without the intervention of man
SECTION 4 descend from the higher estates, as well as the stones or earth
Modes of Extinguishment of Easements which they carry with them.
Article 631. Easements are extinguished: The owner of the lower estate cannot construct works which
(1) By merger in the same person of the ownership will impede this easement; neither can the owner of the
of the dominant and servient estates; higher estate make works which will increase the burden.
(2) By nonuser for ten years; with respect to (552)
discontinuous easements, this period shall be
computed from the day on which they ceased to be Article 638. The banks of rivers and streams, even in case
used; and, with respect to continuous easements, they are of private ownership, are subject throughout their
from the day on which an act contrary to the same entire length and within a zone of three meters along their
took place; margins, to the easement of public use in the general interest
(3) When either or both of the estates fall into such of navigation, floatage, fishing and salvage.
condition that the easement cannot be used; but it
shall revive if the subsequent condition of the Estates adjoining the banks of navigable or floatable rivers
estates or either of them should again permit its use, are, furthermore, subject to the easement of towpath for the
unless when the use becomes possible, sufficient exclusive service of river navigation and floatage.
time for prescription has elapsed, in accordance
with the provisions of the preceding number; If it be necessary for such purpose to occupy lands of private
(4) By the expiration of the term or the fulfillment ownership, the proper indemnity shall first be paid. (553a)
of the condition, if the easement is temporary or
conditional; Article 639. Whenever for the diversion or taking of water
(5) By the renunciation of the owner of the from a river or brook, or for the use of any other continuous
dominant estate; or discontinuous stream, it should be necessary to build a
(6) By the redemption agreed upon between the dam, and the person who is to construct it is not the owner
owners of the dominant and servient estates. (546a) of the banks, or lands which must support it, he may
establish the easement of abutment of a dam, after payment
Article 632. The form or manner of using the easement may of the proper indemnity. (554)
prescribe as the easement itself, and in the same way. (547a)
Article 640. Compulsory easements for drawing water or for
Article 633. If the dominant estate belongs to several persons watering animals can be imposed only for reasons of public
in common, the use of the easement by any one of them use in favor of a town or village, after payment of the proper
prevents prescription with respect to the others. (548) indemnity. (555)
b. LEGAL EASEMENTS (Arts. 634-687) Article 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
CHAPTER 2 servient estates to allow passage to persons and animals to
Legal Easements the place where such easements are to be used, and the
indemnity shall include this service. (556)
SECTION 1
General Provisions Article 642. Any person who may wish to use upon his own
estate any water of which he can dispose shall have the right
Article 634. Easements imposed by law have for their object to make it flow through the intervening estates, with the
either public use or the interest of private persons. (549) obligation to indemnify their owners, as well as the owners
of the lower estates upon which the waters may filter or
Article 635. All matters concerning easements established for descend. (557)
public or communal use shall be governed by the special laws
Article 643. One desiring to make use of the right granted in
the preceding article is obliged: Article 650. The easement of right of way shall be established
(1) To prove that he can dispose of the water and at the point least prejudicial to the servient estate, and,
that it is sufficient for the use for which it is insofar as consistent with this rule, where the distance from
intended; the dominant estate to a public highway may be the shortest.
(2) To show that the proposed right of way is the (565)
most convenient and the least onerous to third
persons; Article 651. The width of the easement of right of way shall
(3) To indemnify the owner of the servient estate in be that which is sufficient for the needs of the dominant
the manner determined by the laws and regulations. estate, and may accordingly be changed from time to time.
(558) (566a)
Article 644. The easement of aqueduct for private interest Article 652. Whenever a piece of land acquired by sale,
cannot be imposed on buildings, courtyards, annexes, or exchange or partition, is surrounded by other estates of the
outhouses, or on orchards or gardens already existing. (559) vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
Article 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or In case of a simple donation, the donor shall be indemnified
from building over the aqueduct in such manner as not to by the donee for the establishment of the right of way. (567a)
cause the latter any damage, or render necessary repairs and
cleanings impossible. (560) Article 653. In the case of the preceding article, if it is the
land of the grantor that becomes isolated, he may demand a
Article 646. For legal purposes, the easement of aqueduct right of way after paying a indemnity. However, the donor
shall be considered as continuous and apparent, even though shall not be liable for indemnity. (n)
the flow of the water may not be continuous, or its use
depends upon the needs of the dominant estate, or upon a Article 654. If the right of way is permanent, the necessary
schedule of alternate days or hours. (561) repairs shall be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed by said
Article 647. One who for the purpose of irrigating or owner to the proprietor of the servient estate. (n)
improving his estate, has to construct a stop lock or sluice
gate in the bed of the stream from which the water is to be Article 655. If the right of way granted to a surrounded
taken, may demand that the owners of the banks permit its estate ceases to be necessary because its owner has joined it
construction, after payment of damages, including those to another abutting on a public road, the owner of the
caused by the new easement to such owners and to the other servient estate may demand that the easement be
irrigators. (562) extinguished, returning what he may have received by way
of indemnity. The interest on the indemnity shall be deemed
Article 648. The establishment, extent, form and conditions to be in payment of rent for the use of the easement.
of the servitudes of waters, to which this section refers, shall
be governed by the special laws relating thereto insofar as no The same rule shall be applied in case a new road is opened
provision therefor is made in this Code. (563a) giving access to the isolated estate.
Article 658. The easement of party wall shall be governed by Article 663. If the owner of a building, supported by a party
the provisions of this Title, by the local ordinances and wall desires to demolish the building, he may also renounce
customs insofar as they do not conflict with the same, and by his part-ownership of the wall, but the cost of all repairs and
the rules of co-ownership. (571a) work necessary to prevent any damage which the demolition
may cause to the party wall, on this occasion only, shall be
Article 659. The existence of an easement of party wall is borne by him. (576)
presumed, unless there is a title, or exterior sign, or proof to
the contrary: Article 664. Every owner may increase the height of the
(1) In dividing walls of adjoining buildings up to the party wall, doing so at his own expense and paying for any
point of common elevation; damage which may be caused by the work, even though such
(2) In dividing walls of gardens or yards situated in damage be temporary.
cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural The expenses of maintaining the wall in the part newly
lands. (572) raised or deepened at its foundation shall also be paid for by
him; and, in addition, the indemnity for the increased
Article 660. It is understood that there is an exterior sign, expenses which may be necessary for the preservation of the
contrary to the easement of party wall: party wall by reason of the greater height or depth which has
(1) Whenever in the dividing wall of buildings there been given it.
is a window or opening;
(2) Whenever the dividing wall is, on one side, If the party wall cannot bear the increased height, the owner
straight and plumb on all its facement, and on the desiring to raise it shall be obliged to reconstruct it at his
other, it has similar conditions on the upper part, own expense and, if for this purpose it be necessary to make
but the lower part slants or projects outward; it thicker, he shall give the space required from his own land.
(3) Whenever the entire wall is built within the (577)
boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of Article 665. The other owners who have not contributed in
the binding beams, floors and roof frame of one of giving increased height, depth or thickness to the wall may,
the buildings, but not those of the others; nevertheless, acquire the right of part-ownership therein, by
(5) Whenever the dividing wall between courtyards, paying proportionally the value of the work at the time of
gardens, and tenements is constructed in such a way the acquisition and of the land used for its increased
that the coping sheds the water upon only one of thickness. (578a)
the estates;
(6) Whenever the dividing wall, being built of Article 666. Every part-owner of a party wall may use it in
masonry, has stepping stones, which at certain proportion to the right he may have in the co-ownership,
intervals project from the surface on one side only, without interfering with the common and respective uses by
but not on the other; the other co-owners. (579a)
(7) Whenever lands inclosed by fences or live
hedges adjoin others which are not inclosed. SECTION 5
In all these cases, the ownership of the walls, fences Easement of Light and View
or hedges shall be deemed to belong exclusively to
the owner of the property or tenement which has in Article 667. No part-owner may, without the consent of the
its favor the presumption based on any one of these others, open through the party wall any window or aperture
signs. (573) of any kind. (580)
Article 661. Ditches or drains opened between two estates Article 668. The period of prescription for the acquisition of
are also presumed as common to both, if there is no title or an easement of light and view shall be counted:
sign showing the contrary. (1) From the time of the opening of the window, if
it is through a party wall; or
There is a sign contrary to the part-ownership whenever the (2) From the time of the formal prohibition upon
earth or dirt removed to open the ditch or to clean it is only the proprietor of the adjoining land or tenement, if
on one side thereof, in which case the ownership of the ditch the window is through a wall on the dominant
shall belong exclusively to the owner of the land having this estate. (n)
exterior sign in its favor. (574)
Article 669. When the distances in article 670 are not
Article 662. The cost of repairs and construction of party observed, the owner of a wall which is not party wall,
walls and the maintenance of fences, live hedges, ditches, adjoining a tenement or piece of land belonging to another,
can make in it openings to admit light at the height of the ordinances or customs, and in such a way as not to cause any
ceiling joints or immediately under the ceiling, and of the nuisance or damage whatever to the dominant estate. (587)
size of thirty centimeters square, and, in every case, with an
iron grating imbedded in the wall and with a wire screen. Article 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
Nevertheless, the owner of the tenement or property outlet through the house itself to the rain water collected
adjoining the wall in which the openings are made can close thereon, the establishment of an easement of drainage can be
them should he acquire part-ownership thereof, if there be demanded, giving an outlet to the water at the point of the
no stipulation to the contrary. contiguous lands or tenements where its egress may be
easiest, and establishing a conduit for the drainage in such
He can also obstruct them by constructing a building on his manner as to cause the least damage to the servient estate,
land or by raising a wall thereon contiguous to that having after payment of the property indemnity. (583)
such openings, unless an easement of light has been acquired.
(581a) SECTION 7
Intermediate Distances and Works for Certain Constructions
Article 670. No windows, apertures, balconies, or other and Plantings
similar projections which afford a direct view upon or
towards an adjoining land or tenement can be made, without Article 677. No constructions can be built or plantings made
leaving a distance of two meters between the wall in which near fortified places or fortresses without compliance with
they are made and such contiguous property. the conditions required in special laws, ordinances, and
regulations relating thereto. (589)
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of Article 678. No person shall build any aqueduct, well, sewer,
sixty centimeters. furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its
The nonobservance of these distances does not give rise to nature or products is dangerous or noxious, without
prescription. (582a) observing the distances prescribed by the regulations and
customs of the place, and without making the necessary
Article 671. The distance referred to in the preceding article protective works, subject, in regard to the manner thereof, to
shall be measured in cases of direct views from the outer line the conditions prescribed by such regulations. These
of the wall when the openings do not project, from the outer prohibitions cannot be altered or renounced by stipulation
line of the latter when they do, and in cases of oblique view on the part of the adjoining proprietors.
from the dividing line between the two properties. (583)
In the absence of regulations, such precautions shall be taken
Article 672. The provisions of article 670 are not applicable as may be considered necessary, in order to avoid any
to buildings separated by a public way or alley, which is not damage to the neighboring lands or tenements. (590a)
less than three meters wide, subject to special regulations and
local ordinances. (584a) Article 679. No trees shall be planted near a tenement or
piece of land belonging to another except at the distance
Article 673. Whenever by any title a right has been acquired authorized by the ordinances or customs of the place, and, in
to have direct views, balconies or belvederes overlooking an the absence thereof, at a distance of at least two meters from
adjoining property, the owner of the servient estate cannot the dividing line of the estates if tall trees are planted and at
build thereon at less than a distance of three meters to be a distance of at least fifty centimeters if shrubs or small trees
measured in the manner provided in article 671. Any are planted.
stipulation permitting distances less than those prescribed in
article 670 is void. (585a) Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
SECTION 6 tenement be uprooted.
Drainage of Buildings
The provisions of this article also apply to trees which have
Article 674. The owner of a building shall be obliged to grown spontaneously. (591a)
construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public place, Article 680. If the branches of any tree should extend over a
and not on the land of his neighbor, even though the neighboring estate, tenement, garden or yard, the owner of
adjacent land may belong to two or more persons, one of the latter shall have the right to demand that they be cut off
whom is the owner of the roof. Even if it should fall on his insofar as they may spread over his property, and, if it be the
own land, the owner shall be obliged to collect the water in roots of a neighboring tree which should penetrate into the
such a way as not to cause damage to the adjacent land or land of another, the latter may cut them off himself within
tenement. (586a) his property. (592)
Article 675. The owner of a tenement or a piece of land, Article 681. Fruits naturally falling upon adjacent land
subject to the easement of receiving water falling from roofs, belong to the owner of said land. (n)
may build in such manner as to receive the water upon his
own roof or give it another outlet in accordance with local SECTION 8
Easement Against Nuisance (n)
(h) lateral and subjacent support. (Arts. 684-687.)
Article 682. Every building or piece of land is subject to the
easement which prohibits the proprietor or possessor from 3. Easements Relating to Waters
committing nuisance through noise, jarring, offensive odor,
smoke, heat, dust, water, glare and other causes. i. Natural Drainage (Art. 637)
Article 683. Subject to zoning, health, police and other laws Article 637. Lower estates are obliged to receive the waters
and regulations, factories and shops may be maintained which naturally and without the intervention of man
provided the least possible annoyance is caused to the descend from the higher estates, as well as the stones or earth
neighborhood. which they carry with them.
SECTION 9 The owner of the lower estate cannot construct works which
Lateral and Subjacent Support (n) will impede this easement; neither can the owner of the
higher estate make works which will increase the burden.
Article 684. No proprietor shall make such excavations upon (552)
his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support. NOTES:
Article 685. Any stipulation or testamentary provision Article 637 impose a natural easement upon the
allowing excavations that cause danger to an adjacent land or lower estates which are obliged to receive the
building shall be void. waters which naturally and without the
intervention of man (not waters, for example, from
Article 686. The legal easement of lateral and subjacent reservoirs or tanks) descend from the higher
support is not only for buildings standing at the time the estates, as well as the stones or earth carried by the
excavations are made but also for constructions that may be waters.
erected.
(1) Duty of servient owner. — The owner of the
Article 687. Any proprietor intending to make any lower estate cannot construct works, which will
excavation contemplated in the three preceding articles shall impede this easement, such as walls, ditches or
notify all owners of adjacent lands. fences, or a dam which block the natural flow of
the waters. The dominant owner may demand
1. Definition (Art. 634) their removal or destruction and recover damages.
(see Lunod v. Meneses, 11 Phil. 428 [1908]; see
Article 634. Easements imposed by law have for their object Osmeña v. Camara, [C.A.] 38 O.G. [No. 121], p.
either public use or the interest of private persons. (549) 2773.)
Article 638. The banks of rivers and streams, even in case (1) He must seek the permission of the owner, and
they are of private ownership, are subject throughout their in case of the latter’s refusal he must secure
entire length and within a zone of three meters along their authority from the proper administrative agency
margins, to the easement of public use in the general interest which will conduct the necessary investigation in
of navigation, floatage, fishing and salvage. which all interested parties are given opportunity
to be heard. In establishing the easement, the
Estates adjoining the banks of navigable or floatable rivers proper indemnity must be paid.
are, furthermore, subject to the easement of towpath for the
exclusive service of river navigation and floatage. (2) Where the construction of a dam is
unauthorized, the same can be considered a private
If it be necessary for such purpose to occupy lands of private nuisance and may be lawfully destroyed or
ownership, the proper indemnity shall first be paid. (553a) removed by the injured landowner or by any
person acting under his directions. It is incumbent
NOTES: upon the builder who seeks to restrain affected
landowners from interfering with his use of the
(1) Banks of rivers and streams, whether they are of dam to prove that he has legal right or authority to
public or private ownership, are subject to build the same. (Solis v. Pujeda, 42 Phil. 697
easement of public use for: (a) navigation, (b) [1922])
floatage, (c) fishing, and (d) salvage, and (e) with
respect to estates adjourning banks of navigable iv. Easement for Drawing Water or for Watering
rivers, also to easement of towpath. Animals (Arts. 640-641)
(2) If the land is of public ownership, there is no Article 641. Easements for drawing water and for watering
indemnity; if of private ownership, the proper animals carry with them the obligation of the owners of the
indemnity shall first be paid before it may be servient estates to allow passage to persons and animals to
occupied. Riparian owners cannot be required to the place where such easements are to be used, and the
subject their property to the easement for the indemnity shall include this service. (556)
benefit of the public without prior indemnity.
(Ayala de Roxas v. City of Manila, 6 Phil. 25 NOTES:
[1906])
This is a personal easement which includes the
(3) The width of the zone subject to the easement is accessory easement of passage or right of way of
three meters throughout the entire length of the persons and animals to the place where the
bank along its margin. In a case, the City of Manila easement is to be used.
leased a public alley to a private party rendering it
impossible for the public to use the zone of three The requisites for this easement are:
meters along the estero for purposes of navigation, (1) It must be imposed for reasons of public use;
etc., contrary to Article 638, the Supreme Court (2) It must be in favor of a town or village; and
held: “The authority of local governments to enact (3) There must be payment of proper indemnity.
municipal ordinances is subject to the general
limitation that the same shall not be repugnant to v. Easement of Aqueduct (Art. 642-646)
law.’’ (Unson v. Lacson, 100 Phil. 695 [1957])
Article 642. Any person who may wish to use upon his own
The easement established by Article 638 does not estate any water of which he can dispose shall have the right
apply to canals (esteros). (Ayala de Roxas v. City of to make it flow through the intervening estates, with the
Manila, supra) obligation to indemnify their owners, as well as the owners
of the lower estates upon which the waters may filter or
iii. Easement of Dam (Art. 639) descend. (557)
Article 639. Whenever for the diversion or taking of water Article 643. One desiring to make use of the right granted in
from a river or brook, or for the use of any other continuous the preceding article is obliged:
(1) To prove that he can dispose of the water and Notwithstanding the easement of aqueduct, the
that it is sufficient for the use for which it is servient owner may close or fence his estate, or
intended; build over the aqueduct so long as no damage is
(2) To show that the proposed right of way is the caused to the aqueduct or the necessary repairs and
most convenient and the least onerous to third cleanings of the same are not rendered impossible.
persons;
(3) To indemnify the owner of the servient estate in Like the owner of the lower estate on which an
the manner determined by the laws and regulations. easement of natural drainage has been established
(558) (Art. 637.), he can construct works he may deem
necessary to prevent damage to himself provided
Article 644. The easement of aqueduct for private interest that he does not impede or impair, in any manner
cannot be imposed on buildings, courtyards, annexes, or whatsoever, the use of the easement. If he does, the
outhouses, or on orchards or gardens already existing. (559) dominant owner may ask for the removal or
destruction of such works with a right to
Article 645. The easement of aqueduct does not prevent the indemnity for damages.
owner of the servient estate from closing or fencing it, or
from building over the aqueduct in such manner as not to Easement considered as continuous and apparent
cause the latter any damage, or render necessary repairs and The easement of aqueduct is generally non-
cleanings impossible. (560) apparent because it is found underground; and
discontinuous because it is used only at times, and
Article 646. For legal purposes, the easement of aqueduct during the dry season, the use may be very seldom
shall be considered as continuous and apparent, even though due to the insufficient flow of water. For legal
the flow of the water may not be continuous, or its use purposes, however, the easement is considered
depends upon the needs of the dominant estate, or upon a apparent and continuous and, therefore, may be
schedule of alternate days or hours. (561) susceptible of acquisitive prescription. (see Art.
620.)
NOTES:
vi. Easement for the construction of stop lock or
Easement of aqueduct defined. sluice gate (Art. 647)
Easement of aqueduct is the right arising from a
forced easement by virtue of which the owner of Article 647. One who for the purpose of irrigating or
an estate who desires to avail himself of water for improving his estate, has to construct a stop lock or sluice
the use of said estate may make such waters pass gate in the bed of the stream from which the water is to be
through the intermediate estate with the obligation taken, may demand that the owners of the banks permit its
of indemnifying the owner of the same and also the construction, after payment of damages, including those
owner of the estate to which the water may filter caused by the new easement to such owners and to the other
or flow. (2 Castan 527) irrigators. (562)
The easement cannot be imposed over buildings, All matters pertaining to the establishment, extent,
courtyards, annexes, or gardens if the easement is form, and conditions of the servitude of waters are
for private interest. (Art. 644.) governed by Articles 637 to 647 which are the Civil
Code provisions on easements of waters and by
Rights of owner of servient estate special laws relating thereto particularly, the Water
Code of the Philippines. (Pres. Decree No. 1067.) In (4) The compulsory (legal) right of way
case of conflict, the Civil Code prevails. may be claimed if the existence of the requisites
mentioned below is established by the claimant
4. Easement of right of way (see Locsin v. Climaco, 26 SCRA 816 [1969]; Vda.
de Baltazar v. Court of Appeals, 62 SCAD 76, 245
i. Definition (Art. 649) SCRA 333 [1995].), i.e., the owner or proprietor of
the dominant estate, by clear and convincing
Article 649. The owner, or any person who by virtue of a evidence, an easement being regarded as a charge
real right may cultivate or use any immovable, which is or encumbrance on the servient estate, involving as
surrounded by other immovables pertaining to other persons it does an abnormal restriction on the property
and without adequate outlet to a public highway, is entitled rights of the servient owner. (Cristobal v. Court of
to demand a right of way through the neighboring estates, Appeals, 95 SCAD 44, 291 SCRA 122 [1998]) He is
after payment of the proper indemnity. not at liberty to impose one based on arbitrary
choice. (Costabella Corp. v. Court of Appeals,
Should this easement be established in such a manner that its supra)
use may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the indemnity shall iii. Requisites of the easement (Art. 649-650)
consist of the value of the land occupied and the amount of
the damage caused to the servient estate. Article 649. The owner, or any person who by virtue of a
real right may cultivate or use any immovable, which is
In case the right of way is limited to the necessary passage surrounded by other immovables pertaining to other persons
for the cultivation of the estate surrounded by others and for and without adequate outlet to a public highway, is entitled
the gathering of its crops through the servient estate without to demand a right of way through the neighboring estates,
a permanent way, the indemnity shall consist in the payment after payment of the proper indemnity.
of the damage caused by such encumbrance.
Should this easement be established in such a manner that its
This easement is not compulsory if the isolation of the use may be continuous for all the needs of the dominant
immovable is due to the proprietor's own acts. (564a) estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of
NOTES: the damage caused to the servient estate.
Easement of right of way is the right granted by In case the right of way is limited to the necessary passage
law to the owner of an estate which is surrounded for the cultivation of the estate surrounded by others and for
by other estates belonging to other persons and the gathering of its crops through the servient estate without
without an adequate outlet to a public highway to a permanent way, the indemnity shall consist in the payment
demand that he be allowed a passageway of the damage caused by such encumbrance.
throughout such neighboring estates after payment
of the proper indemnity. This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a)
ii. Nature of easement
Article 650. The easement of right of way shall be established
(1) They are demanded by necessity, that at the point least prejudicial to the servient estate, and,
is, to enable owners of isolated estates to make full insofar as consistent with this rule, where the distance from
use of their properties, which lack of access to the dominant estate to a public highway may be the shortest.
public roads has denied them. (see Costabella Corp. (565)
v. Court of Appeals, 193 SCRA 333 [1991])
NOTES:
(2) Under Article 649, they are
compulsory and hence, legally demandable, subject (1) Claimant must be an owner of enclosed
to indemnity and the concurrence of certain immovable or one with real right. — Not only the
conditions. (Ibid.) As compulsory easements, they owner of the enclosed estate but any person who
are inseparable from the estate to which they by virtue of a real right may cultivate or use an
actively or passively belong. (Art. 617) immovable, may demand a right of way. It is clear
that a usufructuary may demand a right of way.
(3) It is no argument that no contract of
easement is annotated in the title of the servient (2) There must be no adequate outlet to a public
estate nor notice of lis pendens to enforce the highway. — The servitude may be demanded when
easement recorded with the register of deeds, for it there is no outlet or access to a public highway, or
is in the nature of legal easement that the servient even when there is one, the same is not adequate.
estate is legally bound to provide the dominant Thus, where the use of an existing outlet is
estate ingress from and egress to the public dangerous or is very difficult, or is very costly, or is
highway. (Villanueva v. Velasco, 138 SCAD 566, not always available, or requires travel at a long
346 SCRA 99 [2000]) distance, a new right of way may be demanded.
The owner of the servient estate subject to the
easement cannot obstruct the use of the easement, (1) The easement of right of way, being
as when he fences the original right of way and discontinuous, cannot, therefore, be acquired by
moves the path to another portion of his land if the prescription. The use of a footpath or road may be
proposed new location is farther and is not as apparent but it is not a continuous easement
convenient as the original path. He may be because its use is at intervals and depends upon the
restrained by injunction. (Resolme v. Lazo, 27 Phil. acts of man. It can be exercised only if a man passes
816 [1914]; see De La Cruz v. Ramiscal, 450 SCRA or puts his feet over somebody else’s land.
449 [2005]) (Abellana, Sr. v. Court of Appeals, 208 SCRA 316
[1922])
(3) The right of way must be absolutely necessary.
— The right cannot be claimed merely for the The view has been expressed “that when the right
convenience of the owner of the enclosed estate. of way is permanent and has an apparent sign, it
can be acquired by prescription. If the land itself
(4) The isolation must not be due to the claimant’s occupied by the road can be acquired in ownership
own act. — The right of the dominant proprietor to by prescription why can’t a servitude which is less
have a right of way shall not be granted when the than ownership? When there is a permanent road,
isolation of his estate is due to his own acts as when the easement should be considered continuous
he constructs a permanent structure on that because the existence of the road is a continuing
portion of his land which gives him sufficient assertion of a right against the exclusive dominion
access to the public highway even when he can do of its owner.’’ (II Tolentino, op. cit., p. 352)
so without inconvenience and additional cost on
another portion. The proprietor can only blame A right of way may be regarded as continuous
himself for his predicament. He cannot, by his own under certain circumstances.
act, isolate his property from a public highway and
then claim an easement of way through an adjacent (2) In any case, the right cannot be acquired by
estate. It will not do to assert that use of the prescription if the use relied upon as basis for
passageway was difficult or inconvenient. prescription was merely tolerated by the owner of
(Francisco v. Intermediate Appellate Court, 177 an estate for convenience. (Archbishop of Manila v.
SCRA 527 [1989]; see Dionisio v. Ortiz, 204 SCRA Roxas, 22 Phil. 450 [1912]; Cuaycong v. Benedicto,
745 [1991]) 37 Phil. 781 [1981])
(5) The easement must be established at the point (3) One whose land is enclosed by the lands of
least prejudicial to the servient estate. — This point others at once acquires the right to demand an
is generally taken where the distance from the easement of way to the nearest street or road, but
dominant estate to a public highway is the shortest, his failure to do so does not constitute a
but is not always so. (Art. 651.) The criterion of renunciation of his right under No. (5) of Article
least prejudice or injury to the servient estate shall 631, nor does the right to demand such easement
be observed although the distance may not be the prescribe under No. (2) of the same article.
shortest or is even the longest. (Francisco v. Paez, 54 Phil. 239 [1930]) The right to
demand a right of way under the conditions
This is a question of fact to be determined by the provided in Article 649 is imprescriptible. (Art.
court in each particular case. 1143.)
(6) There must be payment of proper indemnity. — vi. Width of passage (Art. 651)
The right can be acquired only after the proper
indemnity has been paid. (see Art. 652) Article 651. The width of the easement of right of way shall
be that which is sufficient for the needs of the dominant
iv. Kinds of easement estate, and may accordingly be changed from time to time.
(566a)
The easement may be:
(1) Private, when it is established in favor of a NOTES:
private person, such as the right granted in Article
649; or In the Encarnacion case, the petitioner and his
(2) Public, when it is available in favor of the family could easily make do with a few pushcarts
community or public at large. to tow the plants to the national highway, when he
started out as a plant nursery operator. But the
v. Acquisition and extinguishment by prescription business grew and with it the need for the use of
modern means of conveyance or transport. Manual
Only easements which are continuous and at the hauling of plants and garden soil and use of
same time apparent may be acquired by pushcarts have become extremely cumbersome and
prescription. The period is ten years. (Art. 620.) physically taxing. The Supreme Court said: “To
Discontinuous easements, whether apparent or not, force petitioner to leave his jeepney in the
may be acquired only by virtue of a title (Art. 622) highway, exposed to the elements and the risk of
and not by prescription. theft simply because it could not pass through the
improvised pathway, is sheer pigheadedness on the The servient owner retains ownership of the
part of the servient estate. Petitioner should not be passageway; hence, he pays all the taxes. But the
denied a passageway wide enough to accommodate dominant owner is liable for the necessary repairs
his jeepney since that is reasonable and necessary and the proportionate share of the taxes paid by the
aspect of the plant nursery business.’’ servient owner, that is, the amount of the taxes
corresponding to the portion on which the
vii. Where land of transferor or transferee enclosed easement is established.
(Art. 652)
ix. Extinguishment of compulsory easement of
Article 652. Whenever a piece of land acquired by sale, right of way (Art. 655)
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant Article 655. If the right of way granted to a surrounded
a right of way without indemnity. estate ceases to be necessary because its owner has joined it
to another abutting on a public road, the owner of the
In case of a simple donation, the donor shall be indemnified servient estate may demand that the easement be
by the donee for the establishment of the right of way. (567a) extinguished, returning what he may have received by way
of indemnity. The interest on the indemnity shall be deemed
Article 653. In the case of the preceding article, if it is the to be in payment of rent for the use of the easement.
land of the grantor that becomes isolated, he may demand a
right of way after paying an indemnity. However, the donor The same rule shall be applied in case a new road is opened
shall not be liable for indemnity. (n) giving access to the isolated estate.
(1) Buyer’s, etc., land enclosed. — If the land (1) Causes of extinguishment. — Article 655 applies
transferred is surrounded by other estates of the to compulsory easement of right of way. It provides
vendor, exchanger, or co-owner, the transferee is for two causes of extinguishment: the joining of the
not obliged to pay indemnity for the easement as isolated estate to another abutting a public road
the consideration for the transfer is presumed to and opening of a new road which gives access to
include the easement without the indemnity. the estate. In both cases, the new outlet must be
adequate. (see Art. 649, par. 1.)
(2) Donee’s land enclosed. — Article 652 is not
applicable in cases of simple donation because the (2) Extinguishment not automatic. — The
donor receives nothing for his property, unlike in extinguishment is not automatic because the law
sale, exchange, or partition. A simple donation is says that the owner of the servient estate may
one made out of pure liberality. (Art. 725.) demand that the easement be extinguished, if he so
desires. Hence, the dominant owner cannot ask for
(3) Seller’s, etc. or donor’s land enclosed. — If it is the return of the indemnity, if the servient owner
the land of the grantor, i.e., seller, barterer, or co- chooses to allow the continuation of the easement.
owner that becomes isolated, he may demand a The return of the indemnity is predicated on the
right of way but he shall be obliged to pay extinguishment of the right of way.
indemnity unless the purchaser agreed to grant
right without indemnity. The donor shall not be (3) Obligation of servient owner. — The amount to
liable for indemnity as it is considered a tacit be returned consists of the value of the land
condition of the donation. (Art. 653.) occupied and the damage caused to the servient
estate, where the servitude is a permanent passage.
viii. Responsibility for repairs and taxes (Art. 654) (Art. 649, par. 2.) The servient owner is not liable
to pay interest on the indemnity as the interest is
Article 654. If the right of way is permanent, the necessary deemed to be payment for the use of the easement.
repairs shall be made by the owner of the dominant estate. A If the servitude is temporary or discontinuous,
proportionate share of the taxes shall be reimbursed by said nothing has to be returned since the indemnity is
owner to the proprietor of the servient estate. (n) considered the compensation for the damage
already suffered.
NOTES:
x. Temporary easement of right of way (Art. 656)
Article 654 applies if the right of way is permanent.
(see Art. 649, par. 2.) It provides a fair adjustment Article 656. If it be indispensable for the construction, repair,
between the rights of the dominant and servient improvement, alteration or beautification of a building, to
owners. (Report of the Code Commission, p. 98) carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the the easement established is compulsory, the width
damage caused him. (569a) shall not extend ten meters.
In all these cases, the ownership of the walls, fences or Any owner may free himself from contributing to
hedges shall be deemed to belong exclusively to the owner of the charge by renouncing his rights in the party
the property or tenement which has in its favor the wall unless it actually supports his building.
presumption based on any one of these signs. (573) According to Manresa, the renunciation must be
total (4 Manresa 784.), that is, of “his part
NOTES: ownership.’’ (par. 2.) Obviously, the renunciation
will include the land on which the party wall is
Article 660 mentions some exterior signs rebutting constructed. In co-ownership, partial renunciation
the presumption of a party wall. The wall becomes is allowed. (see Art. 488.)
the exclusive property of the owner of the estate
which has in its favor the presumption based on v. Demolition of building (Art. 663)
any of the above exterior signs. The enumeration is
merely illustrative, and is not exclusive. Article 663. If the owner of a building, supported by a party
wall desires to demolish the building, he may also renounce
The exterior signs may contradict each other. In his part-ownership of the wall, but the cost of all repairs and
such case, the court shall decide the matter taking work necessary to prevent any damage which the demolition
into consideration all the circumstances. But in may cause to the party wall, on this occasion only, shall be
case of conflict between a title evidencing borne by him. (576)
ownership to a wall and an exterior sign, the
former must prevail, for the latter merely gives rise NOTES:
to an inference of ownership.
An owner may also renounce his part ownership of
iii. Ditches or drains (Art. 661) a party wall if he desires to demolish his building
supported by the wall. He shall bear all the
Article 661. Ditches or drains opened between two estates expenses of repairs and work necessary to prevent
are also presumed as common to both, if there is no title or any damage which the demolition may cause to the
sign showing the contrary. party wall.
There is a sign contrary to the part-ownership whenever the The phrase “on this occasion only’’ means that his
earth or dirt removed to open the ditch or to clean it is only liability for damages is limited to those damages
on one side thereof, in which case the ownership of the ditch suffered simultaneously, during, or immediately
shall belong exclusively to the owner of the land having this after, and by reason of the demolition. (2 Sanchez
exterior sign in its favor. (574) Roman 627)
vi. Increasing height (Art. 664, 665) with the common and respective uses by the other
co-owners. (see Art. 486.)
Article 664. Every owner may increase the height of the
party wall, doing so at his own expense and paying for any Thus, if X owns 2/3 of the party wall and Y, 1/3, X
damage which may be caused by the work, even though such may use the wall (e.g., insert a beam therein) up to
damage be temporary. 2/ 3 of its thickness, and Y, up to 1/3. This is just. (I
Capistrano, op. cit., p. 583)
The expenses of maintaining the wall in the part newly
raised or deepened at its foundation shall also be paid for by 6. Easement of light and view (Art. 667-673)
him; and, in addition, the indemnity for the increased
expenses which may be necessary for the preservation of the i. Definition
party wall by reason of the greater height or depth which has
been given it. Article 667. No part-owner may, without the consent of the
others, open through the party wall any window or aperture
If the party wall cannot bear the increased height, the owner of any kind. (580)
desiring to raise it shall be obliged to reconstruct it at his
own expense and, if for this purpose it be necessary to make a. Easement of light
it thicker, he shall give the space required from his own land.
(577) Easement of light (jus luminum) is the right to
admit light from the neighboring estate by virtue of
Article 665. The other owners who have not contributed in the opening of a window or the making of certain
giving increased height, depth or thickness to the wall may, openings. (2 Castan 536; see Art. 667.)
nevertheless, acquire the right of part-ownership therein, by
paying proportionally the value of the work at the time of b. Easement of view
the acquisition and of the land used for its increased
thickness. (578a) Easement of view (jus prospectus) is the right to
make openings or windows, to enjoy the view
NOTES: through the estate of another and the power to
prevent all constructions or works which would
An owner is given the right to increase the height obstruct such view or make the same difficult.
of a party wall subject to the following conditions: (Ibid.; see Arts. 670-673.) It necessarily includes
(1) He must do so at his own expense; the easement of light. It is possible to have light
(2) He must pay for any damage which may be only without view.
caused thereby even if the damage is temporary;
(3) He must bear the cost of maintaining the ii. Prescriptive period (Art. 668)
portion added; and
(4) He must pay the increased cost of preservation Article 668. The period of prescription for the acquisition of
of the wall. an easement of light and view shall be counted:
(1) From the time of the opening of the window, if
He shall be obliged to reconstruct the wall at his it is through a party wall; or
expense if it is necessary so that the wall can bear (2) From the time of the formal prohibition upon
the increased height, and if additional thickness is the proprietor of the adjoining land or tenement, if
required, he shall provide the space therefor from the window is through a wall on the dominant
his own land. The other owners cannot object to estate. (n)
the work as long as the above conditions are
complied with. The owner who makes the addition a. In positive easement
acquires ownership therefor unless the other
owners avail of their right under Article 665 by Where easement positive — It is considered
paying proportionately the value of the work at the positive if made through a party wall (No. 1.) or
time of the acquisition (not construction) and of even if made on one’s own wall, if the window is
the land used for the wall’s increased thickness. on a balcony or projection extending over the
adjoining property. (Fabie v. Lichauco, 11 Phil. 14
vii. Proportional use (Art. 666) [1908]) A party wall is not for the opening of
windows; its purpose is to support the buildings of
Article 666. Every part-owner of a party wall may use it in the part-owners. When a window is opened
proportion to the right he may have in the co-ownership, through a party wall, an apparent and continuous
without interfering with the common and respective uses by easement (Art 620.) is created from the time of
the other co-owners. (579a) such opening. But there is no true easement as long
as the right to prevent its use exists.
NOTES:
Under Article 668(1), the adjoining owner can
The part owners share in the expenses of order the window closed within ten years from the
maintaining a party wall in proportion to the time of the opening of the window. (Ibid)
interest of each. (Art. 662.) They have also a
proportionate right to its use without interfering b. In negative easement
Where easement negative — The easement is iv. Direct and oblique views (Art. 670-671)
considered negative if the window is made through
a wall on the dominant estate. In this case, the ten- Article 670. No windows, apertures, balconies, or other
year period of prescription commences from the similar projections which afford a direct view upon or
time of the formal prohibition upon the adjoining towards an adjoining land or tenement can be made, without
owner. The “formal prohibition’’ must be an leaving a distance of two meters between the wall in which
instrument acknowledged before a notary public. they are made and such contiguous property.
(Art. 621)
Neither can side or oblique views upon or towards such
Before the expiration of the prescriptive period, the conterminous property be had, unless there be a distance of
window exists by mere tolerance of the adjoining sixty centimeters.
owner who always retains the right to have it
closed or to build an obstruction, although the The non-observance of these distances does not give rise to
opening was made more than ten years after he prescription. (582a)
decided to exercise his right. Thus, where the
opening by X was made in 2000 but he made a Article 671. The distance referred to in the preceding article
formal notarial demand prohibiting Y to obstruct shall be measured in cases of direct views from the outer line
the view only in 1994, Y may still demand the of the wall when the openings do not project, from the outer
closure of the window in 2001. line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties. (583)
iii. Openings at height of ceiling joists to admit light
(Art. 669) NOTES:
Article 669. When the distances in article 670 are not Article 670 requires a distance of two meters for
observed, the owner of a wall which is not party wall, direct view and sixty centimeters for oblique (or
adjoining a tenement or piece of land belonging to another, side) view, while Article 671 provides the manner
can make in it openings to admit light at the height of the of measuring the distance. The distance for oblique
ceiling joists or immediately under the ceiling, and of the view is much shorter obviously because of the
size of thirty centimeters square, and, in every case, with an difficulty of affording a full view of the adjoining
iron grating imbedded in the wall and with a wire screen. tenement.
Nevertheless, the owner of the tenement or property An owner can build within the minimum distance
adjoining the wall in which the openings are made can close or even up to the dividing line provided no
them should he acquire part-ownership thereof, if there be window is opened except as provided in Article
no stipulation to the contrary. 669.
He can also obstruct them by constructing a building on his When windows are opened, without observing the
land or by raising a wall thereon contiguous to that having required legal distances, the adjoining owner has a
such openings, unless an easement of light has been acquired. right to have them closed. (Chico v. Santamaria,
(581a) supra) Under paragraph 3 of Article 670, the non-
observance of the distances does not give rise to
NOTES: prescription. This means that the mere opening of
the windows in violation of Article 670 does not
(1) Wall is not a party wall. — The owner of a wall give rise to the servitude by prescription. Article
which is not a party wall may make an opening for 670 refers to a negative easement because the
the purpose of admitting light and air, but not for window is through a wall of the dominant estate
view. The restrictions are the following: (Art. 668[2].) and so the cause of action does not
(a) The size must not exceed thirty centimeters accrue from the mere opening of the window.
square; Prescription may still be acquired as a negative
(b) The opening must be at the height of the ceiling easement after ten years from the time of notarial
joists or immediately under the ceiling; prohibition.
(c) There must be an iron grating imbedded in the
wall; and v. Where buildings separated by a public way or
(d) There must be a wire screen. alley (Art. 672)
(2) Wall becomes a party wall. — If a wall becomes Article 672. The provisions of article 670 are not applicable
a party wall, a part-owner can order the closure of to buildings separated by a public way or alley, which is not
the opening (par. 2.) because no part-owner may less than three meters wide, subject to special regulations and
make an opening through a party wall without the local ordinances. (584a)
consent of the others. (Art. 667.) It can also
obstruct the opening unless an easement of light NOTES:
has been acquired (par. 3) by prescription (Art.
668) in which case the servient owner may not The distance provided in Article 670 is not
impair the easement compulsory where there is a public way or alley
provided that it is not less than three meters wide. Article 676. Whenever the yard or court of a house is
The minimum width is necessary for the sake of surrounded by other houses, and it is not possible to give an
privacy and safety. (Report of the Code outlet through the house itself to the rain water collected
Commission, p. 99) thereon, the establishment of an easement of drainage can be
demanded, giving an outlet to the water at the point of the
The width of the way or alley is, however, subject contiguous lands or tenements where its egress may be
to special regulations and local ordinances. A easiest, and establishing a conduit for the drainage in such
private alley opened to the use of the general manner as to cause the least damage to the servient estate,
public falls within the provision of Article 672. after payment of the property indemnity. (583)
(Masongsong v. Flores, 57 Phil. 243 [1932])
8. Intermediate distances and works for certain construction
vi. Where easement of direct view has been and plantings (Art. 677-681)
acquired (Art. 673)
SECTION 7
Article 673. Whenever by any title a right has been acquired Intermediate Distances and Works for Certain Constructions
to have direct views, balconies or belvederes overlooking an and Plantings
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be Article 677. No constructions can be built or plantings made
measured in the manner provided in article 671. Any near fortified places or fortresses without compliance with
stipulation permitting distances less than those prescribed in the conditions required in special laws, ordinances, and
article 670 is void. (585a) regulations relating thereto. (589)
NOTES: Article 678. No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of corrosive
The word “title,’’ as used in Article 673, refers to substances, machinery, or factory which by reason of its
any of the modes of acquiring easements, namely, nature or products is dangerous or noxious, without
contract, will, donation, or prescription. (see Art. observing the distances prescribed by the regulations and
620.) Whenever the easement of direct view has customs of the place, and without making the necessary
been acquired by any such title, there is created a protective works, subject, in regard to the manner thereof, to
true easement; the owner of the servient estate the conditions prescribed by such regulations. These
cannot build thereon at less than a distance of three prohibitions cannot be altered or renounced by stipulation
meters from the boundary line. on the part of the adjoining proprietors.
The distance may be increased or decreased by In the absence of regulations, such precautions shall be taken
stipulation of the parties provided that in case of as may be considered necessary, in order to avoid any
decrease, the minimum distance of two meters or damage to the neighboring lands or tenements. (590a)
sixty centimeters prescribed in Article 670 must be
observed; otherwise, the stipulation shall be void. Article 679. No trees shall be planted near a tenement or
The said distances involve considerations of public piece of land belonging to another except at the distance
policy and the general welfare; hence, they should authorized by the ordinances or customs of the place, and, in
not be rendered ineffective by stipulation. (I the absence thereof, at a distance of at least two meters from
Capistrano, op. cit., p. 588) the dividing line of the estates if tall trees are planted and at
a distance of at least fifty centimeters if shrubs or small trees
7. Drainage of buildings (Art. 674-676) are planted.
SECTION 6 Every landowner shall have the right to demand that trees
Drainage of Buildings hereafter planted at a shorter distance from his land or
tenement be uprooted.
Article 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain The provisions of this article also apply to trees which have
water shall fall on his own land or on a street or public place, grown spontaneously. (591a)
and not on the land of his neighbor, even though the
adjacent land may belong to two or more persons, one of Article 680. If the branches of any tree should extend over a
whom is the owner of the roof. Even if it should fall on his neighboring estate, tenement, garden or yard, the owner of
own land, the owner shall be obliged to collect the water in the latter shall have the right to demand that they be cut off
such a way as not to cause damage to the adjacent land or insofar as they may spread over his property, and, if it be the
tenement. (586a) roots of a neighboring tree which should penetrate into the
land of another, the latter may cut them off himself within
Article 675. The owner of a tenement or a piece of land, his property. (592)
subject to the easement of receiving water falling from roofs,
may build in such manner as to receive the water upon his Article 681. Fruits naturally falling upon adjacent land
own roof or give it another outlet in accordance with local belong to the owner of said land. (n)
ordinances or customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate. (587) 9. Easement against nuisance (Art. 682-683)
SECTION 8
Easement Against Nuisance (n) Article 692. The title and, in a proper case, the possession of
an easement acquired by prescription shall determine the
Article 682. Every building or piece of land is subject to the rights of the dominant estate and the obligations of the
easement which prohibits the proprietor or possessor from servient estate. In default thereof, the easement shall be
committing nuisance through noise, jarring, offensive odor, governed by such provisions of this Title as are applicable
smoke, heat, dust, water, glare and other causes. thereto. (598)
Article 683. Subject to zoning, health, police and other laws Article 693. If the owner of the servient estate should have
and regulations, factories and shops may be maintained bound himself, upon the establishment of the easement, to
provided the least possible annoyance is caused to the bear the cost of the work required for the use and
neighborhood. preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of the
10. Lateral and subjacent support (Arts. 684-687) dominant estate. (599)
SECTION 9
Lateral and Subjacent Support (n)
Article 700. The district health officer shall take care that
one or all of the remedies against a public nuisance are
availed of.
Article 707. A private person or a public official d. Per Se and Per Accidens
extrajudicially abating a nuisance shall be liable for damages:
(1) If he causes unnecessary injury; or 1. Definitions
(2) If an alleged nuisance is later declared by the
courts to be not a real nuisance. (1) Nuisance per se is an act, occupation, or
structure which unquestionably is a nuisance at all times
a. Definition and Concept (Art. 694) and under any circumstances, regardless of location or
surroundings. It is anything which of itself is a nuisance
Article 694. A nuisance is any act, omission, establishment, because of its inherent qualities, productive of injury or
business, condition of property, or anything else which: dangerous to life or property without regard to
(1) Injures or endangers the health or safety of circumstance. (see 58 Am. Jur. 2d 568-569.)
others; or
(2) Annoys or offends the senses; or (2) Nuisance per accidens is an act, occupation, or
(3) Shocks, defies or disregards decency or morality; structure, not a nuisance per se, but which may become a
or nuisance by reason of circumstances, location, or
(4) Obstructs or interferes with the free passage of surroundings. Thus, raising and breeding pigs in a house
any public highway or street, or any body of water; within city limits is a nuisance per accidens.
or
(5) Hinders or impairs the use of property. 2. Distinctions
b. Public and private nuisances (Art. 695) The difference between nuisance per se and nuisance per
accidens lies in the proof, not in the remedy. The
Article 695. Nuisance is either public or private. A public responsibility for a nuisance for either sort is the same.
nuisance affects a community or neighborhood or any
considerable number of persons, although the extent of the (1) In the case of a nuisance per se, the thing
annoyance, danger or damage upon individuals may be becomes a nuisance as a matter of law. Its existence need
unequal. A private nuisance is one that is not included in the only be proved in any locality, without a showing of
foregoing definition. specific damages, and the right to relief is established by
averment and proof of the mere act. But whether a thing
c. Mixed nuisances not a nuisance per se is a nuisance per accidens or in fact,
depends upon its location and surroundings, the manner of
A thing may be a private nuisance without being a public its conduct or other circumstances, and in such cases, proof
one or a public nuisance without being a private one. On of the act and its consequences is necessary. The act or
the other hand, a nuisance may be both public and private thing complained of must be shown by evidence to be a
in character; it may be a public nuisance because it violates nuisance under the law, and whether it is a nuisance or not
public rights to the injury of many persons, and it may also is generally a question of fact. (see 58 Am. Jur. 2d 569.)
be private in character in that it produces special injury to
private rights (see Art. 703.) to any extent beyond the injury (2) As nuisance per se affects the immediate safety
to the public of persons and property, they may be summarily abated
under the undefined law of necessity. But if the nuisance be
Nuisance of this kind are generally called mixed nuisances. per accidens, even the municipal authorities, under their
power to declare and abate nuisances, would not have the
Thus: right to compel the abatement of a particular thing or act as
(1) A house abutting on a street railway track is a a nuisance without reasonable notice to the person alleged
private nuisance to the railway company and a public to be maintaining or doing the same at the time and place of
nuisance because it obstructs the street. hearing before a tribunal authorized to decide whether such
a thing or act does in law constitute a nuisance.
(2) Raising and breeding animals (pigs, goats and (Monteverde v. Generoso, 52 Phil. 23 [1928])
sheep) for commercial purposes in a vicinity that is fast
becoming a fashionable residential district and where it is e. Doctrine attractive nuisance
shown that the place where the animals are kept are found
to be unsanitary on account of the offensive odors, (1) Reason for doctrine. — The doctrine of
pernicious to health, coming from manure scattered attractive nuisance has been stated, in short, as follows:
therein, stagnant water, etc. constitutes both public and
private nuisance. (58 Am. Jur. 2d 559-561.)
“One who maintains on his premises dangerous necessary, by destroying the thing which constitutes the
instrumentalities or appliances of a character likely to same, without committing a breach of the peace, or doing
attract children in play, and who fails to exercise ordinary unnecessary injury. But it is necessary:
care to prevent children from playing therewith or (1) That demand be first made upon the owner or
resorting thereto, is liable to a child of tender years who is possessor of the property to abate the nuisance;
injured thereby, even if the child is technically a trespasser (2) That such demand has been rejected;
in the premises. The principal reason for the doctrine is that (3) That the abatement be approved by the district
the condition or appliance in question although its danger is health officer and executed with the assistance of
apparent to those of age, is so enticing or alluring to the local police; and
children of tender years as to induce them to approach, get (4) That the value of the destruction does not exceed
on or use it, and this attractiveness is an implied invitation three thousand pesos.
to such children.’’ (Hidalgo Enterprises, Inc. v. Balandan, 91
Phil. 488 [1952]; Taylor v. Manila Electric Railroad and i. Remedies against a private nuisance (Art.
Light Co., 16 Phil. 8 [1910]; 65 C.J.S. 455, 458) 705)
(2) Application to bodies of water. — The attractive Article 705. The remedies against a private nuisance are:
nuisance doctrine generally is not applicable to bodies of (1) A civil action; or
water, artificial as well as natural in the absence of some (2) Abatement, without judicial proceedings.
unusual condition or artificial feature other than the mere
water and its location. Thus, a swimming pool or pond or j. Abatement of nuisance, liability and rights (Art.
reservoir of water is not considered an attractive nuisance. 697, 706)
f. Liability of successor of property constituting a nuisance Article 697. The abatement of a nuisance does not preclude
(Art. 696) the right of any person injured to recover damages for its
past existence.
Article 696. Every successive owner or possessor of property
who fails or refuses to abate a nuisance in that property Article 706. Any person injured by a private nuisance may
started by a former owner or possessor is liable therefor in abate it by removing, or if necessary, by destroying the thing
the same manner as the one who created it. which constitutes the nuisance, without committing a breach
of the peace or doing unnecessary injury. However, it is
g. Effect of lapse of time (Art. 698) indispensable that the procedure for extrajudicial abatement
of a public nuisance by a private person be followed.
Article 698. Lapse of time cannot legalize any nuisance,
whether public or private.
Article 700. The district health officer shall take care that
one or all of the remedies against a public nuisance are
availed of.
IX. DIFFERENT MODES OF ACQUIRING
Article 701. If a civil action is brought by reason of the OWNERSHIP
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.
a. PRELIMINARY PROVISIONS
Article 716. The owner of a swarm of bees shall have a right b. Requisites
to pursue them to another's land, indemnifying the possessor
of the latter for the damage. If the owner has not pursued the They are as follows:
swarm, or ceases to do so within two consecutive days, the (1) There must be seizure of a thing;
possessor of the land may occupy or retain the same. The (2) The thing seized must be corporeal personal
owner of domesticated animals may also claim them within property;
twenty days to be counted from their occupation by another (3) The thing must be susceptible of appropriation
person. This period having expired, they shall pertain to him by nature;
who has caught and kept them. (612a) (4) The thing must be without an owner;
(5) There must be an intention to appropriate; and
Article 717. Pigeons and fish which from their respective (6) The requisites or conditions laid down by law must be
breeding places pass to another pertaining to a different complied with.
owner shall belong to the latter, provided they have not been
enticed by some article or fraud. (613a) The rules for the acquisition of ownership by occupation
are contained in Articles 713 to 720. Under Article 560,
Article 718. He who by chance discovers hidden treasure in wild animals are considered possessed only while they are
another's property shall have the right granted him in article under one’s control.
438 of this Code. (614)
c. Vs. possession
Article 719. Whoever finds a movable, which is not treasure,
must return it to its previous possessor. If the latter is The distinctions are the following:
unknown, the finder shall immediately deposit it with the (1) Occupation is a mode of acquiring ownership,
mayor of the city or municipality where the finding has while possession merely raises the presumption of
taken place. ownership when it is exercised in the concept of owner;
The finding shall be publicly announced by the mayor for (2) Occupation refers only to corporeal personal
two consecutive weeks in the way he deems best. property, while possession may be exercised over any kind
of property, whether real or personal, corporeal or
If the movable cannot be kept without deterioration, or incorporeal;
without expenses which considerably diminish its value, it
shall be sold at public auction eight days after the (3) Occupation requires that the object thereof be
publication. without an owner, while possession may refer to property
owned by somebody;
Six months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall be (4) Occupation requires that there be an intent to
awarded to the finder. The finder and the owner shall be acquire ownership, while possession may be had in the
obliged, as the case may be, to reimburse the expenses. (615a) concept of mere holder;
Article 720. If the owner should appear in time, he shall be (5) Occupation may not take place without some
obliged to pay, as a reward to the finder, one-tenth of the form of possession, while possession may exist without
sum or of the price of the thing found. (616a) occupation;
If the movable cannot be kept without deterioration, or Article 730. The fixing of an event or the imposition of a
without expenses which considerably diminish its value, it suspensive condition, which may take place beyond the
shall be sold at public auction eight days after the natural expectation of life of the donor, does not destroy the
publication. nature of the act as a donation inter vivos, unless a contrary
intention appears. (n)
Six months from the publication having elapsed without the
owner having appeared, the thing found, or its value, shall be Article 731. When a person donates something, subject to
awarded to the finder. The finder and the owner shall be the resolutory condition of the donor's survival, there is a
obliged, as the case may be, to reimburse the expenses. (615a) donation inter vivos. (n)
Article 732. Donations which are to take effect inter vivos
shall be governed by the general provisions on contracts and Article 746. Acceptance must be made during the lifetime of
obligations in all that is not determined in this Title. (621) the donor and of the donee. (n)
Article 733. Donations with an onerous cause shall be Article 747. Persons who accept donations in representation
governed by the rules on contracts and remuneratory of others who may not do so by themselves, shall be obliged
donations by the provisions of the present Title as regards to make the notification and notation of which article 749
that portion which exceeds the value of the burden imposed. speaks. (631)
(622)
Article 748. The donation of a movable may be made orally
Article 734. The donation is perfected from the moment the or in writing.
donor knows of the acceptance by the donee. (623)
An oral donation requires the simultaneous delivery of the
CHAPTER 2 thing or of the document representing the right donated.
Persons Who May Give or Receive a Donation
If the value of the personal property donated exceeds five
Article 735. All persons who may contract and dispose of thousand pesos, the donation and the acceptance shall be
their property may make a donation. (624) made in writing. Otherwise, the donation shall be void.
(632a)
Article 736. Guardians and trustees cannot donate the
property entrusted to them. (n) Article 749. In order that the donation of an immovable may
be valid, it must be made in a public document, specifying
Article 737. The donor's capacity shall be determined as of therein the property donated and the value of the charges
the time of the making of the donation. (n) which the donee must satisfy.
Article 738. All those who are not specially disqualified by The acceptance may be made in the same deed of donation
law therefor may accept donations. (625) or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.
Article 739. The following donations shall be void:
(1) Those made between persons who were guilty of If the acceptance is made in a separate instrument, the donor
adultery or concubinage at the time of the donation; shall be notified thereof in an authentic form, and this step
(2) Those made between persons found guilty of the shall be noted in both instruments. (633)
same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife, CHAPTER 3
descendants and ascendants, by reason of his office. Effect of Donations and Limitations Thereon
In the case referred to in No. 1, the action for declaration of Article 750. The donation may comprehend all the present
nullity may be brought by the spouse of the donor or donee; property of the donor, or part thereof, provided he reserves,
and the guilt of the donor and donee may be proved by in full ownership or in usufruct, sufficient means for the
preponderance of evidence in the same action. (n) support of himself, and of all relatives who, at the time of the
acceptance of the donation, are by law entitled to be
Article 740. Incapacity to succeed by will shall be applicable supported by the donor. Without such reservation, the
to donations inter vivos. (n) donation shall be reduced in petition of any person affected.
(634a)
Article 741. Minors and others who cannot enter into a
contract may become donees but acceptance shall be done Article 751. Donations cannot comprehend future property.
through their parents or legal representatives. (626a)
By future property is understood anything which the donor
Article 742. Donations made to conceived and unborn cannot dispose of at the time of the donation. (635)
children may be accepted by those persons who would
legally represent them if they were already born. (627) Article 752. The provisions of article 750 notwithstanding,
no person may give or receive, by way of donation, more
Article 743. Donations made to incapacitated persons shall be than he may give or receive by will.
void, though simulated under the guise of another contract
or through a person who is interposed. (628) The donation shall be inofficious in all that it may exceed
this limitation. (636)
Article 744. Donations of the same thing to two or more
different donees shall be governed by the provisions Article 753. When a donation is made to several persons
concerning the sale of the same thing to two or more jointly, it is understood to be in equal shares, and there shall
different persons. (n) be no right of accretion among them, unless the donor has
otherwise provided.
Article 745. The donee must accept the donation personally,
or through an authorized person with a special power for the The preceding paragraph shall not be applicable to donations
purpose, or with a general and sufficient power; otherwise, made to the husband and wife jointly, between whom there
the donation shall be void. (630)
shall be a right of accretion, if the contrary has not been (3) If the donor subsequently adopt a minor child.
provided by the donor. (637) (644a)
Article 754. The donee is subrogated to all the rights and Article 761. In the cases referred to in the preceding article,
actions which in case of eviction would pertain to the donor. the donation shall be revoked or reduced insofar as it exceeds
The latter, on the other hand, is not obliged to warrant the the portion that may be freely disposed of by will, taking
things donated, save when the donation is onerous, in which into account the whole estate of the donor at the time of the
case the donor shall be liable for eviction to the concurrence birth, appearance or adoption of a child. (n)
of the burden.
Article 762. Upon the revocation or reduction of the
The donor shall also be liable for eviction or hidden defects donation by the birth, appearance or adoption of a child, the
in case of bad faith on his part. (638a) property affected shall be returned or its value if the donee
has sold the same.
Article 755. The right to dispose of some of the things
donated, or of some amount which shall be a charge thereon, If the property is mortgaged, the donor may redeem the
may be reserved by the donor; but if he should die without mortgage, by paying the amount guaranteed, with a right to
having made use of this right, the property or amount recover the same from the donee.
reserved shall belong to the donee. (639)
When the property cannot be returned, it shall be estimated
Article 756. The ownership of property may also be donated at what it was worth at the time of the donation. (645a)
to one person and the usufruct to another or others, provided
all the donees are living at the time of the donation. (640a) Article 763. The action for revocation or reduction on the
grounds set forth in article 760 shall prescribe after four
Article 757. Reversion may be validly established in favor of years from the birth of the first child, or from his
only the donor for any case and circumstances, but not in legitimation, recognition or adoption, or from the judicial
favor of other persons unless they are all living at the time of declaration of filiation, or from the time information was
the donation. received regarding the existence of the child believed dead.
Any reversion stipulated by the donor in favor of a third This action cannot be renounced, and is transmitted, upon
person in violation of what is provided in the preceding the death of the donor, to his legitimate and illegitimate
paragraph shall be void, but shall not nullify the donation. children and descendants. (646a)
(614a)
Article 764. The donation shall be revoked at the instance of
Article 758. When the donation imposes upon the donee the the donor, when the donee fails to comply with any of the
obligation to pay the debts of the donor, if the clause does conditions which the former imposed upon the latter.
not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear to In this case, the property donated shall be returned to the
have been previously contracted. In no case shall the donee donor, the alienations made by the donee and the mortgages
be responsible for the debts exceeding the value of the imposed thereon by him being void, with the limitations
property donated, unless a contrary intention clearly established, with regard to third persons, by the Mortgage
appears. (642a) Law and the Land Registration laws.
Article 759. There being no stipulation regarding the This action shall prescribe after four years from the
payment of debts, the donee shall be responsible therefor noncompliance with the condition, may be transmitted to
only when the donation has been made in fraud of creditors. the heirs of the donor, and may be exercised against the
donee's heirs. (647a)
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve sufficient Article 765. The donation may also be revoked at the
property to pay his debts prior to the donation. (643) instance of the donor, by reason of ingratitude in the
following cases:
CHAPTER 4 (1) If the donee should commit some offense against
Revocation and Reduction of Donations the person, the honor or the property of the donor,
or of his wife or children under his parental
Article 760. Every donation inter vivos, made by a person authority;
having no children or descendants, legitimate or legitimated (2) If the donee imputes to the donor any criminal
by subsequent marriage, or illegitimate, may be revoked or offense, or any act involving moral turpitude, even
reduced as provided in the next article, by the happening of though he should prove it, unless the crime or the
any of these events: act has been committed against the donee himself,
(1) If the donor, after the donation, should have his wife or children under his authority;
legitimate or legitimated or illegitimate children, (3) If he unduly refuses him support when the
even though they be posthumous; donee is legally or morally bound to give support to
(2) If the child of the donor, whom the latter the donor. (648a)
believed to be dead when he made the donation,
should turn out to be living; Article 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
effected before the notation of the complaint for revocation of the more recent date shall be suppressed or reduced with
in the Registry of Property shall subsist. regard to the excess. (656)
Article 767. In the case referred to in the first paragraph of 1. Concept, nature and effect
the preceding article, the donor shall have a right to demand
from the donee the value of property alienated which he Article 725. Donation is an act of liberality whereby a person
cannot recover from third persons, or the sum for which the disposes gratuitously of a thing or right in favor of another,
same has been mortgaged. who accepts it. (618a)
The value of said property shall be fixed as of the time of the NOTES:
donation. (650)
Concept of donation
Article 768. When the donation is revoked for any of the In its generic sense, the term donation includes all forms of
causes stated in article 760, or by reason of ingratitude, or gratuitous dispositions. As defined by Article 725, it is to be
when it is reduced because it is inofficious, the donee shall considered apart from donations mortis causa (Art. 728) and
not return the fruits except from the filing of the complaint. condonation or remission of debt (or renunciation of an
acquired right) which are governed elsewhere by the Civil
If the revocation is based upon noncompliance with any of Code and from donations propter nuptias which are
the conditions imposed in the donation, the donee shall governed by the Family Code (infra.)
return not only the property but also the fruits thereof which
he may have received after having failed to fulfill the The donation the article speaks of and which is governed by
condition. (651) Title III is the donation proper or the true (or real)
donation. It is sometimes simply referred to as “ordinary
Article 769. The action granted to the donor by reason of donation’’ as opposed to the other kinds of donation.
ingratitude cannot be renounced in advance. This action
prescribes within one year, to be counted from the time the Nature and effect of donation
donor had knowledge of the fact and it was possible for him (1) Although Article 725 defines donation as an act,
to bring the action. (652) it is really a contract (Art. 1305.), with all the essential
requisites (consent of both parties, subject matter and cause)
Article 770. This action shall not be transmitted to the heirs of a contract. (Art. 1318.) It falls under contracts of pure
of the donor, if the latter did not institute the same, although beneficence, the consideration being the mere liberality of
he could have done so, and even if he should die before the the benefactor. (Art. 1350.) Thus, a stipulation in a deed of
expiration of one year. donation that it was made for and in consideration of the
“love and affection’’ which the donor feels for the donee is a
Neither can this action be brought against the heir of the sufficient cause for a donation.
donee, unless upon the latter's death the complaint has been
filed. (653) The legal provisions on contracts suppletorily apply to
donation. However, the Civil Code considers donation not
Article 771. Donations which in accordance with the among the contracts that transfer ownership but as a
provisions of article 752, are inofficious, bearing in mind the particular mode of acquiring and transmitting
estimated net value of the donor's property at the time of his ownership. (Art. 712, par. 2)
death, shall be reduced with regard to the excess; but this
reduction shall not prevent the donations from taking effect (2) As a mode of acquiring ownership, donation
during the life of the donor, nor shall it bar the donee from results in an effective transfer of title over the property
appropriating the fruits.
is perfected from the
from the donor to the donee and
For the reduction of donations the provisions of this Chapter moment the donor is made aware of the
and of articles 911 and 912 of this Code shall govern. (654) acceptance by the donee (Art. 734.), provided that the
donee is not disqualified or prohibited by law from
Article 772. Only those who at the time of the donor's death accepting the donation. (Art. 738.) Once the donation is
have a right to the legitime and their heirs and successors in accepted, it is generally considered irrevocable, and the
interest may ask for the reduction or inofficious donations. donee becomes owner of the property, except on account of
officiousness, failure of the donee to comply with the
Those referred to in the preceding paragraph cannot charge imposed on the donation, or ingratitude. (Heirs of R.
renounce their right during the lifetime of the donor, either Florencio v. Heirs T. De Leon, 425 SCRA 447 [2004])
by express declaration, or by consenting to the donation.
The effect of donation is to reduce the patrimony or asset of
The donees, devisees and legatees, who are not entitled to the donor and to increase that of the donee. Hence, the
the legitime and the creditors of the deceased can neither ask giving of a mortgage or any other security does not
for the reduction nor avail themselves thereof. (655a) constitute a donation.
Article 773. If, there being two or more donations, the 2. Requisites
disposable portion is not sufficient to cover all of them, those CIDA
They are as follows: (c) Modal or that which imposes upon the donee a
(1) The donor must have capacity to make the donation of a burden (e.g., services to be performed in the future) less
thing or right; than the value of the gift (Ibid.); and
(2) He must have the donative intent (animus donandi) or
intent to make the donation out of liberality to benefit the (d) Onerous or that the value of which is
donee; considered the equivalent of the consideration for which it
(3) There must be delivery, whether actual or constructive, is given or that made for a valuable consideration and is
of the thing or right donated; and thus governed by the rules on obligations and contracts.
(4) The donee must accept or consent to the donation. (Art. 733.)
In certain donations, the form prescribed by law must be ii. As to taking effect (Art. 728-731)
followed. (see Arts. 748-749.) The subject matter of a
donation may be a thing or right. A person may be a donee As to effectivity or extinguishment:
although he is incapacitated to enter into a contract (Art. (a) Pure or that which is not subject to any
741.) if he is not specially disqualified by law to accept condition (uncertain event) or period (term);
donations. (Art. 738.) (b) Conditional or that which is subject to a
condition, suspensive or resolutory (see Arts. 730, 731.); and
It is not enough that the act is gratuitous; there must be an (c) With a term or that which is subject to a period,
intent to benefit the donee. Thus, commodatum is suspensive or resolutory (see Art. 730.)
gratuitous, but it is not a donation.
The acceptance or consent of the donee is required because a. Distinctions (Art. 728, 729)
no one can be obliged to receive a benefit against his will.
This requirement shows the law’s respect for individual Article 728. Donations which are to take effect upon the
will. (5 Manresa 70-71.) It applies to all kinds of donations death of the donor partake of the nature of testamentary
because the law does not make any distinction. Since a provisions, and shall be governed by the rules established in
donation mortis causa takes effect only after the donor’s the Title on Succession. (620)
death (infra.), it is only after the latter’s death that
acceptance of the donation may be made. Article 729. When the donor intends that the donation shall
take effect during the lifetime of the donor, though the
3. Kinds property shall not be delivered till after the donor's death,
this shall be a donation inter vivos. The fruits of the property
i. As to consideration (Art. 725, 726, 733) from the time of the acceptance of the donation, shall pertain
to the donee, unless the donor provides otherwise. (n)
Article 725. Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of another, NOTES:
who accepts it. (618a)
Distinctions between donations inter vivos and donations
Article 726. When a person gives to another a thing or right mortis causa
on account of the latter's merits or of the services rendered They are as follows:
by him to the donor, provided they do not constitute a (1) The first takes effect during the lifetime of the
demandable debt, or when the gift imposes upon the donee a donor, independently of his death, even if the actual
burden which is less than the value of the thing given, there execution may be deferred until said death, while the
is also a donation. (619) second, upon the death of the donor testator, so that
nothing is conveyed to or acquired by the donee — until
Article 733. Donations with an onerous cause shall be said death;
governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards (2) The first is made out of the donor’s pure
that portion which exceeds the value of the burden imposed. generosity, while the second is made in contemplation of
(622) his death without the intention to lose the thing or its free
disposal in case of survival (Balaqui v. Dongso, 53 Phil. 673
NOTES: [1929].);
(6) The first cannot be revoked except for grounds d. Instances of donations inter vivos
provided for by law (Arts. 760, 765.), while the second is
always revocable at any time and for any reason before the The donations given below have also been held to be inter
donor’s death (Puig v. Peñaflorida, 15 SCRA 276 [1965].); vivos.
(7) In the first, the right to dispose of the property (1) Donor warrants title to property over which she
is completely conveyed to the donee (although certain reserved lifetime usufruct
reservations as to possession and enjoyment, for example, (2) Donation accepted by donees who were given
may be made), while in the second, this right is retained by limited right of disposition, with donor reserving beneficial
the donor while he is still alive; and ownership
(3) Donation was executed out of love and affection
(8) The first is subject to donor’s tax (Sec. 98, as well as a recognition of the personal services rendered by
National Internal Revenue Code.), while the second is the donee.
subject to estate tax. (Sec. 84, Ibid) (4) Ownership and possession of property
immediately transferred to donee but his right to fruits to
b. Designation given – not conclusive begin only after donor’s death
(5) Causes of revocation specified
Whether a donation is inter vivos or mortis causa depends (6) Donor states that he makes a perfect,
upon the nature of the disposition made as reflected irrevocable and consummated donation
from the provisions contained in the donation and the (7) Donor and donee prohibited from alienating
intention of the parties as demonstrated by the and encumbering the property
(8) Usufruct reserved by the donor
circumstances attendant upon its execution.
e. Instances of donations mortis causa
Did the donor intend to transfer the ownership of the
property donated upon the execution of the donation? If this
The donations that follow have been held to be mortis
is so, then it is inter vivos; otherwise, it is merely mortis
causa.
causa. (Castro v. Court of Appeals, 27 SCRA 1076 [1969];
Reyes v. Mosqueda, 187 SCRA 661 [1990]; Gestopa v. Court
(1) Registration of deed of donation prohibited
of Appeals, 135 SCAD 233, 342 SCRA 105 [2000])
(2) Donation to take effect and pass title only by
and because of death
In case of doubt, the conveyance should be deemed
(3) Donated properties to be delivered after donor’s
donation mortis causa in order to avoid uncertainty as to
death
the ownership of the property subject to the deed. (Puig v.
(4) Right to dispose and enjoy reserved by donor
Peñaflorida, supra.) The legal principle enunciated in
(5) Donation makes no actual conveyance
Article 1378 is that in case of doubt relative to a gratuitous
contract, the construction must be that entailing “the least
f. Effect of a suspensive condition on donations inter vivos
transmission of rights and interests.’’
(Art. 730)
c. Donations to be delivered after donor’s death
Article 730. The fixing of an event or the imposition of a
suspensive condition, which may take place beyond the
A distinction must be made between the actual donation
natural expectation of life of the donor, does not destroy the
and the execution thereof. That the donation is to have
nature of the act as a donation inter vivos, unless a contrary
effect during the lifetime of the donor does not mean that
intention appears. (n)
the delivery of the property must be made during his life.
g. Effect of resolutory conditions on donations inter vivos
Article 729, a crystallization of the doctrine announced in
(Art. 731)
decided cases (see Alejandro v. Geraldez, 78 SCRA 245
[1977].), speaks of donations in praesenti which take effect
Article 731. When a person donates something, subject to
during the lifetime of the donor but the property shall be
the resolutory condition of the donor's survival, there is a
delivered after the donor’s death. Such donations are inter
donation inter vivos. (n)
vivos although the subject matter is not delivered at once, or
the delivery is to be made post mortem, which is a simple
h. Provisions governing inter vivos donations (Art. 732)
matter of form and does not change the nature of the act.
(Balaqui v. Dongso, 53 Phil. 673 [1919]; see Vita v.
Article 732. Donations which are to take effect inter vivos
Montanano, 194 SCRA 180 [1991])
shall be governed by the general provisions on contracts and
obligations in all that is not determined in this Title. (621)
The fruits shall belong to the donee from the time of
acceptance unless otherwise provided by the donor. Thus,
Article 733. Donations with an onerous cause shall be
where R donates to E a parcel of land to be delivered upon
governed by the rules on contracts and remuneratory
R’s death, E becomes owner upon his acceptance of the
donations by the provisions of the present Title as regards
donation, with the right to receive the fruits from the time
that portion which exceeds the value of the burden imposed. (2) Those made between persons found guilty of the
(622) same criminal offense, in consideration thereof;
(3) Those made to a public officer or his wife,
4. Perfection of donation (Art. 734) descendants and ascendants, by reason of his office.
Article 734. The donation is perfected from the moment the In the case referred to in No. 1, the action for declaration of
donor knows of the acceptance by the donee. (623) nullity may be brought by the spouse of the donor or donee;
and the guilt of the donor and donee may be proved by
b. PERSONS WHO MAY GIVE OR RECEIVE A preponderance of evidence in the same action. (n)
DONATION
Article 740. Incapacity to succeed by will shall be applicable
1. Natural persons, requisites (Art. 735) to donations inter vivos. (n)
Article 735. All persons who may contract and dispose of Article 743. Donations made to incapacitated persons shall be
their property may make a donation. (624) void, though simulated under the guise of another contract
or through a person who is interposed. (628)
2. Corporations, power to make donations (Sec. 36 (9), BP 68)
b. Family Code (Art. 87, 98, 125)
Among the express powers granted to a corporation under
the Corporation Code (B.P. Blg. 68.), is the power to Art. 87. Every donation or grant of gratuitous advantage,
contribute to charity. Section 36(9) thereof provides that direct or indirect, between the spouses during the marriage
every corporation incorporated under the Code has the shall be void, except moderate gifts which the spouses may
power and capacity: “To make reasonable donations, give each other on the occasion of any family rejoicing. The
including those for the public welfare or for hospital, prohibition shall also apply to persons living together as
charitable, cultural, scientific, civic, or similar purposes: husband and wife without a valid marriage. (133a)
Provided, That no corporation, domestic or foreign, shall
give donations in aid of any political party or candidate or Art. 98. Neither spouse may donate any community
for purposes of partisan political activity.’’ property without the consent of the other. However, either
spouse may, without the consent of the other, make
The provision gives recognition to the growing tendency to moderate donations from the community property for
regard charitable gifts as within the scope of corporate charity or on occasions of family rejoicing or family distress.
authority. It is based on the view that business corporations (n)
are not organized solely as profit-making enterprises but
also as economic and social institutions with corresponding Art. 125. Neither spouse may donate any conjugal
public responsibility to aid in the betterment of economic partnership property without the consent of the other.
and social conditions in the community in which such However, either spouse may, without the consent of the
corporations are doing business. other, make moderate donations from the conjugal
partnership property for charity or on occasions of family
3. Donation by the guardian or trustee (Art. 736) rejoicing or family distress. (174a)
Article 736. Guardians and trustees cannot donate the ii. Donations to minors and other incapacitated
property entrusted to them. (n) persons (Art. 741)
4. Time for determination of capacity of the donor (Art. 737, Article 741. Minors and others who cannot enter into a
801) contract may become donees but acceptance shall be done
through their parents or legal representatives. (626a)
Article 737. The donor's capacity shall be determined as of
the time of the making of the donation. (n) iii. Donations to conceived and unborn children
(Art. 742)
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the Article 742. Donations made to conceived and unborn
supervening of capacity. (n) children may be accepted by those persons who would
legally represent them if they were already born. (627)
5. Capacity of the donee (Art. 738)
iv. Donation of the same thing to different donees
Article 738. All those who are not specially disqualified by (Art. 744)
law therefor may accept donations. (625)
Article 744. Donations of the same thing to two or more
i. Special disqualifications different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
a. Civil Code (Art. 739, 740, 743) different persons. (n)
a. Donation of movables (Art. 748) Article 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the donor.
Article 748. The donation of a movable may be made orally The latter, on the other hand, is not obliged to warrant the
or in writing. things donated, save when the donation is onerous, in which
case the donor shall be liable for eviction to the concurrence
An oral donation requires the simultaneous delivery of the of the burden.
thing or of the document representing the right donated.
The donor shall also be liable for eviction or hidden defects
If the value of the personal property donated exceeds five in case of bad faith on his part. (638a)
thousand pesos, the donation and the acceptance shall be
made in writing. Otherwise, the donation shall be void. Article 755. The right to dispose of some of the things
(632a) donated, or of some amount which shall be a charge thereon,
may be reserved by the donor; but if he should die without
b. Donation of immovables (Art. 749) having made use of this right, the property or amount
reserved shall belong to the donee. (639)
Article 749. In order that the donation of an immovable may
be valid, it must be made in a public document, specifying Article 756. The ownership of property may also be donated
therein the property donated and the value of the charges to one person and the usufruct to another or others, provided
which the donee must satisfy. all the donees are living at the time of the donation. (640a)
The acceptance may be made in the same deed of donation Article 757. Reversion may be validly established in favor of
or in a separate public document, but it shall not take effect only the donor for any case and circumstances, but not in
unless it is done during the lifetime of the donor. favor of other persons unless they are all living at the time of
the donation.
If the acceptance is made in a separate instrument, the donor
shall be notified thereof in an authentic form, and this step Any reversion stipulated by the donor in favor of a third
shall be noted in both instruments. (633) person in violation of what is provided in the preceding
paragraph shall be void, but shall not nullify the donation.
c. EFFECT OF DONATIONS AND LIMITATIONS (614a)
THEREON
Article 758. When the donation imposes upon the donee the
CHAPTER 3 obligation to pay the debts of the donor, if the clause does
Effect of Donations and Limitations Thereon not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear to
Article 750. The donation may comprehend all the present have been previously contracted. In no case shall the donee
property of the donor, or part thereof, provided he reserves, be responsible for the debts exceeding the value of the
in full ownership or in usufruct, sufficient means for the property donated, unless a contrary intention clearly
support of himself, and of all relatives who, at the time of the appears. (642a)
acceptance of the donation, are by law entitled to be
supported by the donor. Without such reservation, the Article 759. There being no stipulation regarding the
donation shall be reduced in petition of any person affected. payment of debts, the donee shall be responsible therefor
(634a) only when the donation has been made in fraud of creditors.
Article 761. In the cases referred to in the preceding article, Period for fulfillment. — The condition must be fulfilled
the donation shall be revoked or reduced insofar as it exceeds within the period fixed by the donor. If the donation does
the portion that may be freely disposed of by will, taking not fix a period, the court shall determine such period as
into account the whole estate of the donor at the time of the may under the circumstances have been probably
birth, appearance or adoption of a child. (n) contemplated by the donor. (see Art. 1197; see Barretto v.
City of Manila, 7 Phil. 416 [1907].)
3. Obligation of donee upon revocation or reduction (Art.
762) Where the time for the fulfillment of the condition,
whether suspensive or resolutory, depends upon the
Article 762. Upon the revocation or reduction of the exclusive will of the donee, the starting point from which
donation by the birth, appearance or adoption of a child, the the corresponding action must be instituted by the donor
property affected shall be returned or its value if the donee begins with the expiration of a reasonable period and
has sold the same. opportunity for the donee to fulfill what has been charged
upon him by the donor. (Central Phil. University v. Court
If the property is mortgaged, the donor may redeem the of Appeals, 63 SCAD 72, 246 SCRA 511 [1995])
mortgage, by paying the amount guaranteed, with a right to
recover the same from the donee. a. Effect of non-fulfillment
When the property cannot be returned, it shall be estimated Effect of non-fulfillment. — The property donated reverts
at what it was worth at the time of the donation. (645a) to the donor. Furthermore, the fruits of the property which
the donee may have received after having failed to fulfill
4. Prescription (Art. 763) the condition have to be returned to the donor. (Art. 768,
par. 2.) If the property has been alienated or mortgaged, the
Article 763. The action for revocation or reduction on the alienation or mortgage shall be void subject to the rights of
grounds set forth in article 760 shall prescribe after four innocent third persons under registration laws who may
years from the birth of the first child, or from his have taken the property donated without notice of the
legitimation, recognition or adoption, or from the judicial condition imposed. The failure of the donee to comply with
declaration of filiation, or from the time information was any condition imposed by the donor will not affect said
received regarding the existence of the child believed dead. third persons.
This action cannot be renounced, and is transmitted, upon A similar rule is provided with respect to donations revoked
the death of the donor, to his legitimate and illegitimate on account of ingratitude. (Art. 766.)
children and descendants. (646a)
iii. Remedy of donor
5. Failure to comply with conditions (Art. 764)
Remedy of donor. — In case of non-fulfillment by the
Article 764. The donation shall be revoked at the instance of donee of any of the conditions imposed by the donor, the
the donor, when the donee fails to comply with any of the donation shall be revoked at the instance of the donor.
conditions which the former imposed upon the latter. However, the donor may file instead an action for specific
performance to compel the donee to comply with said
conditions. Having accepted the donation with its Neither can this action be brought against the heir of the
conditions, the donee is bound to the fulfillment of the donee, unless upon the latter's death the complaint has been
same. The action must be brought within four years from filed. (653)
the non-compliance with the condition. (last par.) Under
Article 764, only the donor or his heirs have the personality i. General rule
to question the non-compliance with any of the conditions
imposed by the donor. ii. Exceptions
6. Revocation by reason of ingratitude of the donee (Art. 10. Reduction of inofficious donations
765)
i. When proper (Art. 771)
Article 765. The donation may also be revoked at the
instance of the donor, by reason of ingratitude in the Article 771. Donations which in accordance with the
following cases: provisions of article 752, are inofficious, bearing in mind the
(1) If the donee should commit some offense against estimated net value of the donor's property at the time of his
the person, the honor or the property of the donor, death, shall be reduced with regard to the excess; but this
or of his wife or children under his parental reduction shall not prevent the donations from taking effect
authority; during the life of the donor, nor shall it bar the donee from
(2) If the donee imputes to the donor any criminal appropriating the fruits.
offense, or any act involving moral turpitude, even
though he should prove it, unless the crime or the For the reduction of donations the provisions of this Chapter
act has been committed against the donee himself, and of articles 911 and 912 of this Code shall govern. (654)
his wife or children under his authority;
(3) If he unduly refuses him support when the ii. Who may ask (Art. 772)
donee is legally or morally bound to give support to
the donor. (648a) Article 772. Only those who at the time of the donor's death
have a right to the legitime and their heirs and successors in
7. Effect of revocation on prior alienations and mortgages interest may ask for the reduction or inofficious donations.
(Art. 766)
Those referred to in the preceding paragraph cannot
Article 766. Although the donation is revoked on account of renounce their right during the lifetime of the donor, either
ingratitude, nevertheless, the alienations and mortgages by express declaration, or by consenting to the donation.
effected before the notation of the complaint for revocation
in the Registry of Property shall subsist. The donees, devisees and legatees, who are not entitled to
the legitime and the creditors of the deceased can neither ask
Later ones shall be void. (649) for the reduction nor avail themselves thereof. (655a)
8. When donee obliged to return fruits (Art. 768) iii. When there are two or more donations (Art.
773)
Article 768. When the donation is revoked for any of the
causes stated in article 760, or by reason of ingratitude, or
when it is reduced because it is inofficious, the donee shall
not return the fruits except from the filing of the complaint.