Property Book Ii Property, Ownership, and ITS Modifications: Recits-Notes-Cases

PROPERTY
RECITS-NOTES-CASES
Things involves only corporeal objects. Property
BOOK II may refer to intangible matters like rights and
credits.
PROPERTY,
OWNERSHIP, AND Discuss the classification of things.
ITS Things are classified into three groups:
1. Res communes – are things which belong to

MODIFICATIONS everybody.
2. Res alicujus – are things that are owned by a
person or a group of persons.
TITLE I. – CLASSIFICATION OF 3. Res nullus – are things which do not have any
owner.
PROPERTY
What is Property? Discuss the classification of property.
Property is an object or right which is As to Mobility 1.Immovable/Real property

appropriated or susceptible for appropriation by (Art. 414) 2.Movable/Personal property
man, with capacity to satisfy human wants and 1. Property of public
needs. As to dominion
ownership
2. Property of private
In its broadest sense, anything which is of (Art. 419)
ownership
pecuniary value to its possessor.
As to 1. Alienable property
The attributes of property are: (USA) alienability 2. Inalienable property
1. Present property
a. It is susceptible for appropriation
As to time
2. Future property
(appropriability); As to 1. Specific property
b. Its significance lies in its capacity to individuality 2. Generic property
satisfy moral and economic needs
As to 1. Tangible property
(utility); and
c. It has individuality on its own, that is, it susceptibility
2. Intangible property
has a separate and autonomous existence to touch
(substantivity). As to 1. Principal Property
accession 2. Accessory property
Are “property” and “thing” the same? As to whether 1. Free property
Distinguish the two. in custody of
2. Custodia legis
the court
Although they were used interchangeably in the
Civil Code, property and things are different.
Other classification of property:
Things refer to existing objects which can be of
some use to man. 1. Mixed property – property which is personal in nature
but is invested by the law with certain characteristics and
Thing vs Property features of real property.
All kinds of property are things but not all things 2. Qualified property – property in chattels which is not
are property. in its nature permanent, but may at some times subsist and
not at other times.
Things refer to all objects that exist which could not
be appropriated by man (Ex. Stars) while property 3. Mislaid property – property which the owner has
refers to objects already possessed by man or are in voluntarily parted with, with the intention of returning it
their possession. later, but which cannot now be found. *does not include
intentionally hidden properties.
1|LEX PAEDAGOGUS – Bulacan State University – College of Law

Compiled by Edgar Manco.
PROPERTY
RECITS-NOTES-CASES
4. Special property – property of a qualified, temporary, them permanently attached to the land, and
or limited nature as distinguished from absolute, general, forming a permanent part of it; the animals in
or unconditional property. these places are included;
(7) Fertilizer actually used on a piece of land;

What are immovable properties?
(8) Mines, quarries, and slag dumps, while
Immovable properties are those which are defined under the matter thereof forms part of the bed, and
Art. 415 of the NCC. waters either running or stagnant;
Juridical Classification of Immovable Properties (9) Docks and structures which, though
(NIDA) floating, are intended by their nature and
1. Immovables by Nature – properties which cannot be object to remain at a fixed place on a river,
moved from one place to another. lake, or coast;
2. Immovables by Incorporation – are those properties
(10) Contracts for public works, and
which are basically movable but are permanently servitudes and other real rights over
attached to an immovable. immovable property.
3. Immovables by Destination – are those which are
basically movables but having been fixed in Can a building be considered as a movable
immovable properties for purposes of business or
functions of the owner of the immovable property,
and be a subject of a chattel mortgage?
they partake the nature of the latter.
4. Immovables by Analogy – are those properties Yes. As a rule, a building can only be mortgaged through
which are not actually tangible properties, but are a real estate mortgage. However there is nothing that
rights and interests over existing immovable prohibit the parties from making the building as the object
properties. They are considered immovable for of a chattel mortgage.
convenience in dealing with them as they are
Conditions required for a building to be validly entered as
inseparable from immovables which they arise.
an object of a chattel mortgage (9 SCRA 631):
Article 415. The following are immovable property: (LTE- 1. The parties mutually consider the building as a
SM-AFM-DoC) personalty; and
2. That no innocent third persons shall be
(1) Land, buildings, roads and constructions prejudiced.
of all kinds adhered to the soil;
If a third person would be prejudiced by the contract, then
(2) Trees, plants, and growing fruits, while the chattel mortgage is void.
they are attached to the land or form an
integral part of an immovable; The validity of the chattel mortgage cannot be questioned
by the owner of the building. (Reason: Estoppel steps in)
(3) Everything attached to an immovable in a
fixed manner, in such a way that it cannot be
However, a building subject to chattel mortgage cannot
separated therefrom without breaking the
material or deterioration of the object;
be sold extra-judicially. (Reason: Only applies to real
estate mortgage)
(4) Statues, reliefs, paintings or other objects
for use or ornamentation, placed in buildings How are trees, plants, and growing crops
or on lands by the owner of the immovable in classified as immovable?
such a manner that it reveals the intention to
attach them permanently to the tenements;
If the plant is attached to the land, it is immovable. If they
(5) Machinery, receptacles, instruments or are uprooted, then it is a movable.
implements intended by the owner of the
tenement for an industry or works which may Plants on pots, on the other hand, are movables.
be carried on in a building or on a piece of
land, and which tend directly to meet the Growing crops are immovable but once they are
needs of the said industry or works; harvested, they are now considered as movables.
(6) Animal houses, pigeon-houses, beehives, Distinguish Par. 3 and Par. 4 of Article 415.
fish ponds or breeding places of similar
nature, in case their owner has placed them or
Par. 3 Par. 4
preserves them with the intention to have
PROPERTY
RECITS-NOTES-CASES
1. Cannot be separated 1. Can be separated from However, once they are mined, they become movables.
from immovable immovable without Stones mined in open quarries follow the same logic.
without breaking or breaking or
deteriorating. deteriorating. It is immaterial whether the waters are running or stagnant
2. Need not be placed 2. Must be placed by the since both are immovable. However once the water is
by the owner. owner, or his agent, collected, it is now a movable.
3. Real property by express or implied.
incorporation. 3. Real property by A barge is attached to a dock. In the barge
incorporation and potted plants and furniture can be found.
destination How do you identify the nature of the barge?
How about the plants? How about the
Suppose a bus company has vulcanizing and furniture? 1
repair machines in a bus station, are the
machines movable or immovable? In this question, the barge, the plants, and the furniture are
immovables for it fall under Par. 9 of Article 415. The
The machines are movables. The machineries operated by barge is tethered to a dock, which although floating, is
the transport company are neither essential nor necessary intended to stay at a position near the shore. The potted
to the work or industry being undertaken by the company. plants and the furniture are likewise immovables since the
(Mindanao Bus Co. vs. City Assessor) nature of the accessories follow that of its principal.
Hence, immovable.
What are the elements of Par. 5 of Article 415 *Note however, that should the barge be tethered to a
(MITE) ship, they can likewise be considered as movables.
Vessels, under the law are movables for they move
1. The placing must be made by the owner of the from one place to another. Its accessories are likewise
tenement, his agent, or duly authorized legal considered as movables. In the 2007 bar exams, both
representative. are correct answers.
2. The industry or works must be carried on in the
building or land. How are real rights classified as immovable?
3. The machines, etc. must tend directly to meet the
needs of said industry or works. They are classified as immovables by analogy which
4. The machines must be essential and principal although they are not material, they nevertheless partake
elements in the industry, and not merely of the essential characteristics of immovable property.
incidental.
What are movable properties?
Are cages raised and nailed in a roof an
immovable? Movable properties are those which are provided in Arts.
416 and 417 of the Civil Code.
No. The general rule is a bird cage, as well as the birds in
it, are chattel for it is easily removable or which may be Article 416. The following things are deemed to be
personal property:
carried from place to place. However, if the cage is
permanently attached to the soil, it is then an immovable.
(1) Those movables susceptible of
appropriation which are not included in the
Explain Par. 7 of Art. 415 preceding article;
If the fertilizer is in a container and not yet applied to the (2) Real property which by any special
land, it is movable. However, once applied, it becomes provision of law is considered as personalty;
immovable.
(3) Forces of nature which are brought under
Explain Par. 8 of Art. 415 control by science; and
As long as the matter (minerals, metals, etc.) are attached (4) In general, all things which can be
to the mineral vein, they are considered as immovables. transported from place to place without
1
Based from the 2007 bar exam questions.
PROPERTY
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impairment of the real property to which they Distinguish real rights from personal rights.
are fixed. (335a)
In real rights, there is a definite active subject who has a
Article 417. The following are also considered as right against all persons generally as indefinite passive
personal property:
subject. (Rights that are binding against the whole world)
It is created by “mode” and “title” (Art. 712)
(1) Obligations and actions which have for
their object movables or demandable sums;
Personal rights on the other hand, there is a definite active
and
subject against a definite passive subject. It is created
merely by “title”
(2) Shares of stock of agricultural,
commercial and industrial entities, although
they may have real estate. (336a) Suppose you own a share of stock in a mining
company, is that real or personal property?
What are the tests to determine whether a
thing is movable? It is a personal property. Under Article 417, par. 2, shares
of stocks in industrial entities, whether they own real
property or not are considered as personalty.
There are two tests to determine whether a thing is
movable.
How about half-interest in a drugstore?
One is test by description. In this test, a thing is movable
if it can be transported from one place to another without It still is a personal property. By stock, it means
injuring the immovable which the object may be attached. “participation or interest”. Thus, it has been held:
The other one is test by exclusion. In this test, a thing is With regard to the nature of the property thus
movable if it not included in the list provided in Art. 415 mortgaged, which is one-half interest in the
(Inclusio unius est exclusio alterius) business above described, such interest is a
personal property capable of appropriation and
Distinguish personal property from personal not included in the enumeration of real properties
effects. in article 335 of the Civil Code, and may be the
subject of mortgage. All personal property may
Personal effects refer to those movable things which are be mortgaged.(Strochecker vs. Ramirez)
susceptible for exclusive self-appropriation. (ex. pen,
bag) Explain Article 418. Are staple wires
consumable or non-consumable?
Personal property are movables regardless whether they
are susceptible for self-appropriation or not. (ex. car, Article 418 classifies movable property based upon its
electric transmission towers) susceptibility to repeated use into either consumable or
on-consumable.
Is money a personal property?
Staple wires are consumables. Once they are
Yes. Money is a personal property. used/applied, it can no longer be reused.
When it is in domestic circulation, money is legal tender How do you differentiate consumables from
and is, therefore, NOT merchandise. When, however, it is fungibles?
attempted to be exported or smuggled, it is deemed to be
taken out of domestic circulation and may be, therefore, Fungibles are things that are susceptible for substitution.
now considered as merchandise or commodity subject to
forfeiture pursuant to Central Bank Circular 37 in relation Consumables on the other hand are things that are not
to Section 1363(f) of the Revised Administrative Code. susceptible for repeated use once used.
(Com. of Customs v. Capistrano, L-11075, June 30,
1960). A good example is a loaf of bread. It is in nature
consumable but suppose that it was loaned for
It should be noted, however, that whether money is legal consumption, it is likewise fungible. However, suppose
tender or not, whether it is merchandise or not, it still is that the parties intend it for display or exhibition, then it
personal property. (Paras, E., Civil Code of the is not fungible.
Philippines, Book II [2008], hereinafter as Paras)

PROPERTY
RECITS-NOTES-CASES
Explain Art. 419. promenades, and public works for public service
paid for by said provinces, cities, or
Article 419 classifies property according to ownership. It municipalities.
could be either:
All other property possessed by any of them is
1. public dominion – those which are owned by the patrimonial and shall be governed by this Code,
state or its political subdivision in its public or without prejudice to the provisions of special
sovereign capacity; or laws.
2. private ownership – those which could be owned
by the state in its private capacity (patrimonial Who can own properties in private
property) or by private individuals, individually ownership?
or collectively.
The state (both national and local) can own properties in
What are the properties in public dominion? their private capacity. These are patrimonial property.
Private individuals, whether individually or collectively,
Article 420 classifies properties of public dominion as can own private property.
either for public use, for public service, or for the
development of national wealth. Article 421. All other property of the State, which
is not of the character stated in the preceding
Article 420. The following things are property of article, is patrimonial property.
public dominion:
Article 422. Property of public dominion, when
(1) Those intended for public use, such as roads, no longer intended for public use or for public
canals, rivers, torrents, ports and bridges service, shall form part of the patrimonial
constructed by the State, banks, shores, property of the State.
roadsteads, and others of similar character;
Article 425. Property of private ownership,
(2) Those which belong to the State, without besides the patrimonial property of the State,
being for public use, and are intended for some provinces, cities, and municipalities, consists of
public service or for the development of the all property belonging to private persons, either
national wealth. individually or collectively.
How would you differentiate properties for What are the characteristics of properties of
public use from those of public service? public dominion? (OI2L)
The properties intended for public use are those things 1. It is Outside the commerce of man;
which can be used by the public or everybody, and not 2. It is Inalienable and non-disposable;
limited to privileged individuals. (ex. roads, canals, 3. It is Imprescriptible.
riverbanks) 4. It cannot be attached, encumbered, or be subject
of Levy and sold at public sale.
On the other hand, properties intended for public service
are those which can be used by duly authorized persons. A parcel of land belongs to the Municipality
(ex. machine guns owned by AFP, NICA building, of A for the purpose as expansion lot for the
ambulance)
school in the future. The mayor of A allowed
How did the Code classified state properties squatters to stay and the same issued “lease”
in public dominion? How about in the LGUs? contracts for 5 years. A year later, when the
school has funds for expansion, the
Art. 420 of the code classified state properties in public Municipality seeks to evict the illegal settlers.
dominion either as for public use, public service, or The settlers argued that by virtue of the
development of national wealth. On the other hand, Arts.
423 and 424 classified LGU properties in public dominion contract, they cannot be ejected. As the
only as for public use. judge, rule on the case.
Article 424. Property for public use, in the I would rule in favour of the municipality. The contention
provinces, cities, and municipalities, consist of of the settlers are not tenable. The squatters may be
the provincial roads, city streets, municipal ejected for they never really became tenants. The property
streets, the squares, fountains, public waters, being a public one, the Mayor did not have the authority
PROPERTY
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of give permits to the squatters. The “lease” contracts are Distinguish public lands from government
therefore null and void. (City of Manila v. Garcia) lands.
The province of Zamboanga was divided into Public lands – is used to describe so much of national
two. Zamboanga City, located between the domain under the legislative power of Congress as has not
two new provinces, is ordered by the been subjected to private right or devoted to public use.
provinces to pay for the value of the schools,
Government lands – is used to describe not only public
hospitals, playgrounds, capitol building etc. lands but also other lands of the government already
Zamboanga City argued that it will not pay for reserved, or devoted to public use, or subject to private
they are of public dominion. rights, and patrimonial lands.
a. Classify the following properties: Who can own private property?
1. Public schools. Under Art. 425, private properties consists of:
1. Patrimonial property; and

2. Hospitals. 2. Property belonging to private persons, either:
a. Individually; or
3. The Capitol Building. b. Collectively.
4. Playgrounds. A parcel of land is owned by the state. It was

donated for LGU for the purpose of building
On the four, only the playgrounds are for public use, and
roads and plaza.
all the rest are patrimonial for they are not devoted for
public use but to public service. But under article 424, as
a. What is the land then?
they were owned by the LGUs, they are patrimonial.
(Province of Zamboanga del Norte v. City of Zamboanga)
The land is for public use for public plaza and roads that
b. Whose contention would prevail? would be built fall under the first paragraph of Art. 424.
b. What if the state donated it to the LGU

The contention of Zamboanga City would prevail for the
law on Municipal corporations would govern. First, while for the purpose of building a
the NCC classified them as patrimonial, they should not commercial plaza?
be regarded as ordinary state property. Second, the 2nd par.
of Art. 424 says “without prejudice to the provisions of The land is a patrimonial property for it falls under the
special laws” (ibid) second paragraph of Art. 424. The purpose of the LGU is
not for public use, but for profit.
A is an owner of a lot near the sea. Years later,
some of his tracts of land were submerged c. Suppose the donation to LGU was
under water. The government undertook intended for a public plaza, but the
reclamation of land. A claimed the reclaimed LGU built a commercial building and
lot as his alleging that he originally owned the leased it to individuals. What is the
lot before it submerged into water therefore land then?
it was his. Who will be the owner of that lot? The land is for public use. The national government still
controls the disposition of properties of political
The government would own that reclaimed land. It has
become property of public dominion for having it subdivisions, regardless of the use to which they are
submerged underwater, A had already abandoned the devoted, provided that the properties came from the state.
same. The submerged land became part of the sea and the (Salas v. Jarencio)
shores, hence becoming for public use. The act of
reclamation by the government would not change its
status as public dominion. (Government v. Cabangis)

PROPERTY
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d. Suppose that the land was leased to A. 415 of the Civil Code. But the sheriff was still able to take
A paid advanced rentals to the LGU, possession of two more machineries.
and the national government revoked Issue: Are the machineries immovable?
the donation from the LGU. Who must
reimburse A for the payment of Ruling: No. Petitioners contend that the subject machines
advanced rentals? used in their factory were not proper subjects of the Writ
issued by the RTC, because they were in fact real
It is the LGU who must reimburse. Properties for public property. Under the Rules of Court, writs of replevin are
use may not be leased to private individuals. The private issued for the recovery of personal property only. Article
lessee must return the possession to the LGU, who in turn 415 (5) of the Civil Code provides that machinery,
must return it to the national government. The LGU, receptacles, instruments or implements intended by the
having received the advanced rentals, is thereby bound to owner of the tenement for an industry or works which
reimburse him of whatever advanced rentals had been may be carried on in a building or on a piece of land, and
given. (See Mun. of Cavite v. Rojas) which tend directly to meet the needs of the said industry
or works. In the present case, the machines that were the
subjects of the Writ were placed by petitioners in the
Is patrimonial property subject to tax? factory built on their own land.
*Submission: No. It cannot be subjected to tax under the However, the contracting parties may validly stipulate
elementary rule that the state cannot tax itself nor its own that a real property be considered as personal. After
subdivisions. agreeing to such stipulation, they are consequently
estopped from claiming otherwise. Under the principle of
How can forests be disposed as private estoppel, a party to a contract is ordinarily precluded from
property? denying the truth of any material fact found therein. Thus,
Section 12.1 of the Agreement between the parties
Forests form part of the public domain hence it is provides “The PROPERTY is, and shall at all times be
inalienable. However once it has been reclassified by the and remain, personal property notwithstanding that the
state as agricultural land and has been converted into PROPERTY or any part thereof may now be, or hereafter
alienable and disposable land, they are now classified as become, in any manner affixed or attached to or
patrimonial property. Hence, private individuals may embedded in, or permanently resting upon, real property
acquire the property from the state. or any building thereon, or attached in any manner to what
is permanent.” Therefore, the are personal property and
Serg’s Products v. PCI Leasing and Finance they are proper subjects of the Writ of Replevin
Serg’s Products, et al. vs. PCI Leasing and Finance
Inc. Petition denied.
G.R. No. 137705. August 22, 2000; THIRD
Laurel v. Abrogar
DIVISION
J. Panganiban Laurel v. Abrogar
G.R. No. 15076; January 13, 2009, EN BANC
Facts: PCI Leasing and Finance filed a complaint for sum J. Ynares-Santiago
of money, with an application for a writ of replevin
against petitioners. The judge issued a writ of replevin Facts: Philippine Long Distance Telephone Company
directing its sheriff to seize and deliver the machineries (PLDT) filed a complaint for theft under Article 308 of
and equipment to PCI Leasing after 5 days and upon the the Revised Penal Code against Baynet Co., Ltd. (Baynet)
payment of the necessary expenses. The sheriff proceeded for stealing its business. PLDT alleged that Baynet
to petitioner's factory, seized one machinery, with word offered phone cards to people in Japan to call their friends
that he would return for other machineries. Petitioner and relatives in the Philippines using PLDT’s facilities
Serg’s Products filed a motion for special protective order and equipment. PLDT contended that the
to defer enforcement of the writ of replevin. PCI Leasing telecommunication services it provided are personalty
opposed the motion on the ground that the properties were thus Baynet should be held for theft.
still personal and therefore can still be subjected to seizure
and writ of replevin. Petitioner asserted that properties Issue: Is the business of providing telecommunication
sought to be seized were immovable as defined in Article services a personal property?

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Ruling: No. The business of PLDT providing Conversion Agreement, was for a period of five years
telecommunication services is not a personal property as wherein, NPC shall be responsible for the payment of:
contemplated under Article 308 of the Revised Penal
Code. The elements of theft under Article 308 of the (a) all taxes, import duties, fees, charges and other
Revised Penal Code are as follows: (1) that there be taking levies imposed by the National Government; and
of personal property; (2) that said property belongs to (b) all real estate taxes and assessments, rates and
another; (3) that the taking be done with intent to gain; (4) other charges in respect of the Power Barges
that the taking be done without the consent of the owner;
Subsequently, Polar Energy, Inc. assigned its rights under
and (5) that the taking be accomplished without the use of
the Agreement to FELS. Thereafter, FELS received an
violence against or intimidation of persons or force upon
assessment of real property taxes on the power barges.
things. Interest in business was not specifically
The assessed tax, which likewise covered those due for
enumerated as personal property in the Civil Code in force
1994, amounted to P56,184,088.40 per annum. FELS
at the time the above decision was rendered. Yet, interest
referred the matter to NPC, reminding it of its obligation
in business was declared to be personal property since it
under the Agreement to pay all real estate taxes. It then
is capable of appropriation and not included in the
gave NPC the full power and authority to represent it in
enumeration of real properties. Business is likewise not
any conference regarding the real property assessment of
enumerated as personal property under the Civil Code.
the Provincial Assessor. NPC sought reconsideration of
Just like interest in business, however, it may be
the Provincial Assessor’s decision to assess real property
appropriated. Business should also be classified as
taxes on the power barges. However, the motion was
personal property. Since it is not included in the exclusive
denied. The Local Board of Assessment Appeals (LBAA)
enumeration of real properties under Article 415, it is
ruled that the power plant facilities, while they may be
therefore personal property. Petitioners acts constitute
classified as movable or personal property, are
theft of respondent PLDTs business and service,
nevertheless considered real property for taxation
committed by means of the unlawful use of the latter’s
purposes because they are installed at a specific location
facilities. In this regard, the Amended Information
with a character of permanency. FELS appealed the
inaccurately describes the offense by making it appear
LBAA’s ruling to the Central Board of Assessment
that what petitioner took were the international long
Appeals (CBAA). The CBAA rendered a Decision
distance telephone calls, rather than respondent PLDTs
finding the power barges exempt from real property tax.
business. Indeed, while it may be conceded that
It was reversed upon reconsideration by the CBAA and
international long distance calls, the matter alleged to be
the CA affirmed the decision.
stolen in the instant case, take the form of electrical
energy, it cannot be said that such international long Issue: Are power barges personal properties?
distance calls were personal properties belonging to
PLDT since the latter could not have acquired ownership Ruling: No. Article 415 (9) of the New Civil Code
over such calls. PLDT merely encodes, augments, provides that "docks and structures which, though
enhances, decodes and transmits said calls using its floating, are intended by their nature and object to remain
complex communications infrastructure and facilities. at a fixed place on a river, lake, or coast" are considered
PLDT not being the owner of said telephone calls, then it immovable property. Thus, power barges are categorized
could not validly claim that such telephone calls were as immovable property by destination, being in the nature
taken without its consent. It is the use of these of machinery and other implements intended by the owner
communications facilities without the consent of PLDT for an industry or work which may be carried on in a
that constitutes the crime of theft, which is the unlawful building or on a piece of land and which tend directly to
taking of the telephone services and business. meet the needs of said industry or work.
Motion for reconsideration granted. Petition denied.
FELS Energy Inc. v. The Province of Batangas Soriano v. Sps Galit

FELS Energy Inc. v. the Province of Batangas Soriano v. Spouses Galit
G.R. No. 168557; February 16, 2007; Third Division G.R. No. 156295. September 23, 2003; First Division
J. Callejo Sr. J. Ynares-Santiago
Facts: NPC entered into a lease contract with Polar Facts: Respondent Ricardo Galit contracted a loan from
Energy, Inc. over diesel engine power barges moored at petitioner Marcelo Soriano, in the total sum of
Batangas. The contract, denominated as an Energy P480,000.00. This loan was secured by a real estate
PROPERTY
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mortgage over a parcel of land. After he failed to pay his City Treasurer, issued notices of levy and warrants of levy
obligation, Soriano filed a complaint for sum of money on the Airport Lands and Buildings. The Mayor of the
against him with the Regional Trial Court. Respondents City of Parañaque threatened to sell at public auction the
failed to file their answer. The trial court declared the Airport Lands and Buildings should MIAA fail to pay the
spouses in default and rendered judgment in favor of real estate tax delinquency. MIAA filed a petition sought
petitioner Soriano, against the defendant ordering the to restrain the City of Parañaque from imposing real estate
latter to pay. It became final and executory. Accordingly, tax on, levying against, and auctioning for public sale the
the trial court issued a writ of execution in due course, by Airport Lands and Buildings.
virtue of which, Deputy Sheriff Robles levied on the
following real properties of the respondents: MIAA argued that Airport Lands and Buildings are
owned by the Republic. The government cannot tax itself.
1. A parcel of land; The reason for tax exemption of public property is that its
2. STORE/HOUSE CONSTRUCTED made of taxation would not inure to any public advantage, since in
strong materials; and such a case the tax debtor is also the tax creditor.
3. BODEGA made of strong materials
Issue: Are the airport lands and buildings taxable the
At the sale at public auction, petitioner was the highest LGU?
and only bidder. A Certificate of Sale of Execution of
Real Property was issued. Respondents went to the Court Ruling: No. Under Article 420 of the Civil Code, the
of Appeals, assailing the inclusion of the parcel of land MIAA Airport Lands and Buildings are properties of
covered among the list of real properties in the writ of public dominion and thus owned by the State or the
possession. Respondents argued that said property was Republic of the Philippines. The Airport Lands and
not among those sold on execution by Deputy Sheriff as Buildings are devoted to public use because they are used
reflected in the Certificate of Sale on Execution of Real by the public for international and domestic travel and
Property. The CA granted the petition. transportation. The fact that the MIAA collects terminal
fees and other charges from the public does not remove
Issue: Is the certificate of sale and the writ of possession, the character of the Airport Lands and Buildings as
with the court ordering only to seize the storehouse and properties for public use. The charging of fees to the
bodega, valid? public does not determine the character of the property
whether it is of public dominion or not. Article 420 of the
Ruling: No. The argument that the land on which the
Civil Code defines property of public dominion as one
buildings levied upon in execution is necessarily included
“intended for public use.” MIAA is Not a Government-
is tenuous. The provision of the Civil Code on immovable
Owned or Controlled Corporation. The Airport Lands
properties enumerates land and buildings separately. This
and Buildings of MIAA are property of public dominion
can only mean that a building is, by itself, considered
and therefore owned by the State or the Republic of the
immovable. Thus, it has been held that while it is true that
Philippines. No one can dispute that properties of public
a mortgage of land necessarily includes, in the absence of
dominion mentioned in Article 420 of the Civil Code, like
stipulation of the improvements thereon, buildings, still a
“roads, canals, rivers, torrents, ports and bridges
building by itself may be mortgaged apart from the land
constructed by the State,” are owned by the State. The
on which it has been built. Such mortgage would be still
term “ports” includes seaports and airports. The MIAA
a real estate mortgage for the building would still be
Airport Lands and Buildings constitute a “port”
considered immovable property even if dealt with
constructed by the State. Properties of public dominion,
separately and apart from the land. In this case,
being outside the commerce of man, cannot be the subject
considering that what was sold by virtue of the writ of
of an auction sale and likewise are not subject to levy,
execution issued by the trial court was merely the
encumbrance or disposition through public or private sale.
storehouse and bodega constructed on the parcel of land
Any encumbrance, levy on execution or auction sale of
which by themselves are real properties of respondents
any property of public dominion is void for being contrary
spouses, the same should be regarded as separate and
to public policy.
distinct from the conveyance of the lot on which they
stand. Petition denied. Petition granted.
MIAA v. CA
Facts: MIAA received Final Notices of Real Estate Tax
Delinquency from the City of Parañaque for the taxable
years 1992 to 2001. The City of Parañaque, through its
PROPERTY
RECITS-NOTES-CASES
Land Bank of the Philippines v. Cacayuran Issues:
Land Bank of the Philippines v. Cacayuran Is the plaza lot a property of public dominion?
G.R. No. 191667; April 17, 2013; Second Division
Can the municipality convert a public domain property
J. Perlas-Bernabe
into a patrimonial property?
Facts: From 2005 to 2006, the Sangguniang Bayan of
Ruling:
Municipality of Agoo, La Union (SB) passed certain
resolutions to implement a multi-phased plan Yes. It is well-settled that public plazas are properties for
(Redevelopment Plan) to redevelop the Agoo Public public use and therefore, belongs to the public dominion.
Plaza (Agoo Plaza) where the Imelda Garden and Jose As such, it can be used by anybody and no one can
Rizal Monument were situated. To finance phase 1 of the exercise over it the rights of a private owner. Records
said plan, the SB initially passed a resolution, authorizing disclose that the said loans were executed by the
then Mayor Eufranio Eriguel (Mayor Eriguel) to obtain a Municipality for the purpose of funding the conversion of
loan from Land Bank and incidental thereto, mortgage a the Agoo Plaza into a commercial center pursuant to the
2,323.75 square meter lot situated at the southeastern Redevelopment Plan. However, the conversion of the said
portion of the Agoo Plaza (Plaza Lot) as collateral. To plaza is beyond the Municipality’s jurisdiction
serve as additional security, it further authorized the considering the property’s nature as one for public use and
assignment of a portion of its internal revenue allotment thereby, forming part of the public dominion.
(IRA) and the monthly income from the proposed project Accordingly, it cannot be the object of appropriation
in favor of Land Bank. The foregoing terms were either by the State or by private persons. Nor can it be the
confirmed, approved and ratified on October 4, 2005. subject of lease or any other contractual undertaking.
Consequently, on November 21, 2005, Land Bank Thus, as held in Villanueva v. Castañeda, Jr., town plazas
extended a loan in favor of the Municipality (First Loan), are properties of public dominion, to be devoted to public
the proceeds of which were used to construct ten (10) use and to be made available to the public in general. They
kiosks at the northern and southern portions of the Imelda are outside the commerce of man and cannot be disposed
Garden. After completion, these kiosks were rented out. of or even leased by the municipality to private parties.
On March 7, 2006, the SB passed another resolution
approving the construction of a commercial center on the No. It is equally observed that the land on which the Agoo
Plaza Lot as part of phase II of the Redevelopment Plan. Plaza is situated cannot be converted into patrimonial
To finance the project, Mayor Eriguel was again property absent any express grant by the national
authorized to obtain a loan from Land Bank, posting as government. As public land used for public use, the
well the same securities as that of the First Loan. All foregoing lot rightfully belongs to and is subject to the
previous representations and warranties of Mayor Eriguel administration and control of the Republic of the
related to the negotiation and obtention of the new loan Philippines. Hence, without the said grant, the
were subsequently ratified. Unlike phase 1 of the Municipality has no right to claim it as patrimonial
Redevelopment Plan, the construction of the commercial property.
center at the Agoo Plaza was vehemently objected to by Petition denied.
some residents of the Municipality. Led by respondent
Eduardo Cacayuran (Cacayuran), these residents claimed
that the conversion of the Agoo Plaza into a commercial
center, as funded by the proceeds from the First and
TITLE II. – OWNERSHIP
Second Loans (Subject Loans), were "highly irregular,
violative of the law, and detrimental to public interests,
and will result to wanton desecration of the said historical
What is ownership?
and public park." Unable to get any response, Cacayuran,
invoking his right as a taxpayer, filed a Complaint against Ownership is that independent right of a person to the
the Implicated Officers and Land Bank, assailing, among exclusive enjoyment of a thing including its disposition
others, the validity of the Subject Loans on the ground that and recovery subject only to the restrictions and
the Plaza Lot used as collateral thereof is property of limitations established by law and the rights of others. (De
public dominion and therefore, beyond the commerce of Leon, H., Comments and Cases on Property [2016],
man. The RTC ruled in favor of respondent. The CA hereinafter as De Leon)
affirmed with modification the RTC’s ruling. Hence, this
petition. Ownership is the independent and general right of a
person to control a thing particularly in his possession,

PROPERTY
RECITS-NOTES-CASES
enjoyment, disposition, and recovery, subject to no How is just compensation important in
restrictions except those imposed by the state or private expropriation? How is it determined?
persons, without prejudice to the provisions of the law.
(Paras) One of the basic principles enshrined in our Constitution
is that no person shall be deprived of his private property
What are the different rights of the owner without due process of law; and in expropriation cases, an
over the property? essential element of due process is that there must be just
compensation whenever private property is taken for
Ownership confers certain rights to the owner. Such are public use. Accordingly, Section 9, Article III, of our
as follows: Constitution mandates: "Private property shall not be
taken for public use without just compensation." …xxx
1. Jus possidendi – right to possess; xxx… The recognized rule is that title to the property
2. Jus utendi – right to use/enjoy; expropriated shall pass from the owner to the expropriator
3. Jus fruendi – right to the fruits; only upon full payment of the just compensation.
4. Jus accessionis – right to the accessories; Jurisprudence on this settled principle is consistent both
5. Jus abutendi – right to consume the thing by its here and in other democratic jurisdictions. (Republic v.
use; Lim)
6. Jus disponendi – right to dispose or alienate; and
7. Jus vindicandi – right to vindicate or recover. "Title to property which is the subject of
condemnation proceedings does not vest the
What are the different kinds of ownership? condemner until the judgment fixing just
compensation is entered and paid, but the
1. Full ownership – this includes all the rights of the
condemner’s title relates back to the date on which
owner.
2. Beneficial ownership – is ownership recognized the petition under the Eminent Domain Act, or the
by law and capable of being enforced in court. commissioner’s report under the Local Improvement
3. Naked ownership – this is ownership where the Act, is filed. …xxx xxx… Although the right to
right to use and fruits had been denied. appropriate and use land taken for a canal is complete
4. Sole ownership – where the ownership is vested at the time of entry, title to the property taken
in one person. remains in the owner until payment is actually made.
5. Co-ownership – when the ownership is vested on (Assoc. of Small Landowners v. Secretary of DAR)
two or more owners.
Just compensation =
What are the limitations by law on enjoyment
of property? Fair Market Value + (Consequential Damages –
Consequential benefits)
1. Those given by the state or the law. (PETPO)
a. Police Power If the value of consequential benefits is larger than
b. Eminent Domain consequential damages, then the value of the FMV shall
c. Taxation be the minimum for expropriation.
d. Provisions under Arts. 429-435 of the
NCC You mentioned police power. What is Art.
e. Other laws limiting enjoyment of 436? What are its requisites?
property.
2. Those given by the owner or grantee himself.
Article 436. When any property is condemned or
3. Those given by the grantor who gave the thing to
seized by competent authority in the interest of
the present owner.
health, safety or security, the owner thereof shall
not be entitled to compensation, unless he can
You mentioned eminent domain. You show that such condemnation or seizure is
mention about Art. 435, what is it? unjustified.
It is the power of the state to take private property from Since the seizure of property is an exercise of police
an individual and upon just compensation, devote it for power, it must conform to its two requisites, to wit:
public use.
1. Lawful purpose;
2. Lawful means.

PROPERTY
RECITS-NOTES-CASES
If the condemnation or seizure is unjustified, the owner is Define Replevin. What are the requisites to
entitled to compensation. avail replevin?
Distinguish police power from eminent Replevin is an action or provisional remedy where the
domain? Distinguish taxation from the two. complainant prays for the recovery of possession of
personal property.
Police Eminent
Power Domain
Taxation A party praying for the recovery of possession of personal
Public property may, at the commencement of the action or at
Purpose Public Use Revenue any time before answer, apply for an order for the delivery
Welfare
Funding of of such property to him. (Section 1, Rule 60 ROC)
Return to Altruistic Just
government
the person feeling of Compensati The applicant must show by his own affidavit or that of
projects and
affected safety on
programs some other person who personally knows the facts:
Use of
For public For public 1. That the applicant is the owner of the property
property Destroyed
use use
affected claimed, particularly describing it, or is entitled
What it Liberty and Property Property to the possession thereof;
regulates Property 2. That the property is wrongfully detained by the
adverse party, alleging the cause of detention
thereof according to the best of his knowledge,
What is the doctrine of self-help?
information, and belief ;
3. That the property has not been distrained or taken
Art. 429 embodies the doctrine of self-help which means
that the owner may only use such force as may be for a tax assessment or a fine pursuant to law, or
reasonably necessary. The right to prevent or repel an seized under a writ of execution or preliminary
actual or threatened physical invasion or usurpation of attachment, or otherwise placed under custodia
property is essential to the maintenance of property rights. legis, or if so seized, that it is exempt from such
(Report of the Code Commission) seizure or custody; and
4. The actual market value of the property.
Requisites:
The applicant must also give a bond, executed to the
1. It must be conducted by the owner or lawful adverse party in double the value of the property as stated
possessor; in the affidavit aforementioned, for the return of the
2. He must only use such force as reasonably property to the adverse party if such return be adjudged,
necessary to repel or prevent an invasion or and for the payment to the adverse party of such sum as
usurpation over his property otherwise he shall be he may recover from the applicant in the action. (Section
liable for damages; 2, Rule 60 ROC)
3. It must be exercised at the time of an actual or
threatened dispossession. Differentiate forcible entry from unlawful
detainer.
What are the different actions to recover
property? FORCIBLE ENTRY UNLAWFUL
DETAINER
Appropriate remedy when Appropriate remedy when
the plaintiff loses the defendant withholds
The different actions to recover property are as follows:
possession of his property the possession of the
 If the property is movable from the defendant the plaintiff’s property
1. Replevin (Rule 60, Rules of Court) latter using Force, beyond the period
Intimidation, Stealth provided in the contract.
 If the property is immovable
Threat, or Strategy.
1. Accion Interdictal (FISTS)
 Forcible Entry The entry is unlawful The entry is lawful but
 Unlawful Detainer from the very beginning. became subsequently
2. Accion Publiciana unlawful.
3. Accion Reinvindicatoria Prescribes within one year Prescribes within one year
from: from
 Unlawful  The date of last
deprivation (if the demand by the
PROPERTY
RECITS-NOTES-CASES
defendant did not plaintiff to the The other terms of the original contract shall be
used strategy or defendant; or revived.
stealth); or  If the contract Article 1682. The lease of a piece of rural land, when
 Discovery (if the stipulated the its duration has not been fixed, is understood to have
defendant used termination date, been for all the time necessary for the gathering of the
strategy or from the date of fruits which the whole estate leased may yield in one
stealth). the expiration of year, or which it may yield once, although two or more
the contract. years have to elapse for the purpose.
Article 1687. If the period for the lease has not been
Is it necessary that demand be given to the fixed, it is understood to be from year to year, if the
occupant before filing an unlawful detainer rent agreed upon is annual; from month to month, if it
is monthly; from week to week, if the rent is weekly;
case? and from day to day, if the rent is to be paid daily.
The general rule is yes. The complainant must give a However, even though a monthly rent is paid, and no
demand to the occupant to vacate the property before period for the lease has been set, the courts may fix a
filing the case to the MTC. The demand to vacate must be longer term for the lease after the lessee has occupied
absolute, not conditional. The complaint must state when the premises for over one year. If the rent is weekly,
the courts may likewise determine a longer period
the demand was made, and the fact that such demand had
after the lessee has been in possession for over six
been served personally, or by serving written notice, or by months. In case of daily rent, the courts may also fix a
posting such notice. (Paras) longer period after the lessee has stayed in the place
for over one month.
However, an exception to the rule is when there is a
stipulation in the contract. Such unlawful deprivation How about on forcible entry, do you need a
occurs upon expiration or termination of the right. demand letter?
Section 2, of Rule 70 of the ROC states that unless No. A demand letter is not necessary in forcible entry. The
otherwise stipulated, such action by the lesser shall be entry in unlawful from the very beginning.
commenced only after demand to pay or comply with the
conditions of the lease and to vacate is made upon the The demand to vacate is only necessary when the tenant
lessee, or by serving written notice of such demand upon detains possession. But is not essential if the detention is
the person found on the premises if no person be found made by the buyer, seller, or some other person. (See Sec.
thereon, and the lessee fails to comply therewith after 2, Rule 70, ROC)
fifteen (15) days in the case of land or five (5) days in the
case of buildings.
Is there a need for the owner to prove prior
possession in forcible entry?
A is the owner of the land. B leased the land
To confer jurisdiction upon the respondent Court, the
of A for five years. The contract had expired complaint should have alleged prior physical possession
and B remained in possession. May A file a of the house by plaintiff or by his vendors and deprivation
case of unlawful detainer against B? of such possession by defendant through any of the means
Yes. A can file a case of unlawful detainer against B. specified by the Rules. (Maddammu v. Municipal Court
However, on demand, if there is no stipulation in the of Manila)
contract about the necessity of demand, then demand is A is the owner of a lot. B, C, D occupied the
necessary. Otherwise, it is not necessary.
lot and built shanties. What action would you
N.B. However, take note that on lease, there might be an file?
implied renewal of the lease contract between the parties.
I would file an accion publiciana. The accion publiciana
The following articles are provided for guidance:
is intended for the recovery of the better right to possess,
Article 1670. If at the end of the contract the lessee and is a plenary proceeding before the RTC. It must be
should continue enjoying the thing leased for fifteen brought within ten years. The issue is not possession de
days with the acquiescence of the lessor, and unless a facto but possession de jure.
notice to the contrary by either party has previously
been given, it is understood that there is an implied In this case, accion interdictal is not available. B, C, D
new lease, not for the period of the original contract, occupied the lot without the use of force, intimidation,
but for the time established in articles 1682 and 1687. stealth, strategy, or threat, nor were they allowed by the
owner to occupy the lot, nor was there any pre-existing
PROPERTY
RECITS-NOTES-CASES
relations between the parties. Hence, accion publiciana is action for ejectment or unlawful detainer is the proper
the remedy. remedy against him. (Yu v. de Lara)
Where do you file accion publiciana? As a judge, what would you do?
Accion publiciana is cognizable in the RTC. Both cases shall proceed independently. The issue over
the case of A is that his right to possession has been
Differentiate accion reinvindicatoria from unlawfully deprived by B. On B, the issue is about
accion publiciana and accion interdictal. ownership. The different remedies filed are separate,
distinct, and independent from one another. Hence both
Possession de facto. He may
or may not be the owner of
cases shall proceed independently.

better right to the property
Possession de jure. The
question is who has the
Can there be execution pending action in

the property
Ownership
accion reinvindicatoria?
Issue
Yes. The RTC can execute a judgment for unlawful

detainer while an accion reinvidicatoria was pending
before another court.
In Alejandro v. CFI of Bulacan (40 O.G. 133, p. 128) it
was held that an action for detainer is after all different
from an action to recover ownership. “The CFI (RTC) had
Where to
MTC
RTC
RTC
jurisdiction to order the execution of its final judgment

file
rendered in the case for detainer.” The fact that it had been
filed over the same land another action involving title is
no bar thereto because the latter is compatible with an
Prescriptive
action for detainer, and both can coexist and can be filed
10 years
10 years
period
1 year
at the same time so long as they pursue different purposes

and are regulated by different procedure.
A is the owner of the lot. B is occupying a

portion of that lot. B took ownership of the
entire lot. B filed an accion reinvindicatoria
Accion Interdictal
Accion Publiciana
Reinvindicatoria
against A. A won. A asked for execution of the

judgment and eject B. Is it possible?
Accion
Yes it is possible. The question resolved in accion

reinvindicatoria is one of ownership. Hence, having the
case be decided in favour of A. It is concluded that A is
the owner of the property and B is unlawfully occupying
the same. Hence A may file a motion for a writ of
execution to eject B.
A filed an unlawful detainer case against B. B  N.B. The adjudication over a reinvindicatory
filed a case for accion reinvindicatoria action in favour a party does not necessarily
claiming ownership over the property. include the adjudication of possession over the
same. The exception is when the party defeated
has not been able to show any right to possess
In tolerance of illegal settlers, what independent of his claim of ownership. In such,
case would you file? the winner must file a motion for a writ of
execution to enforce his right to possess the
I would file an unlawful detainer case. A person or property.
squatter who occupies the land of another at the latter’s
tolerance or permission, without any contract between
them, is necessarily bound by an implied promise that he
will vacate upon demand. Failing which, a summary

PROPERTY
RECITS-NOTES-CASES
A is in actual possession of the lot. B arrived b. What if B did not file his answer?
and alleged ownership over the lot. B wants to My answer would be the same. If B would not file his
eject A. answer, then B would be in default. Under Section 3, Rule
Who has the burden of proof? 9 of the ROC:
B has the burden to prove. Under Article 434, it states Section 3. Default; declaration of. — If the defending
party fails to answer within the time allowed therefor,
that:
the court shall, upon motion of the claiming party with
Article 434. In an action to recover, the property notice to the defending party, and proof of such
must be identified, and the plaintiff must rely on failure, declare the defending party in default.
Thereupon, the court shall proceed to render
the strength of his title and not on the weakness
judgment granting the claimant such relief as his
of the defendant's claim.
pleading may warrant, unless the court in its
In this case, B wants to eject A. Therefore as the plaintiff, discretion requires the claimant to submit evidence.
he must prove on the strength of his title and not on the Such reception of evidence may be delegated to the
clerk of court.
weakness of the A’s claim.
Hence judgment would be based on the pleadings of A
What if A is a tenant? unless the court require additional evidence.
If A is a tenant, B cannot eject A by virtue of an existing
contract between them. Should he do it, there would be a To what extent does an owner own his
breach and would be liable for damages. However the property under Art. 437?
same rule on the burden of proof would apply. Under Article 437, the owner of a parcel of land is the
When will presumption on disputable owner of the surface thereof. And it is presupposed that
he owns the sub surface up to the centre of the earth. He
ownership would arise? is likewise the owner of the aerial space exactly
The presumption arises when the ownership of one in corresponding to the contours of his land. (Pineda, E.,
possession of the property is challenged by another. Civil Code of the Philippines, Book II [2009], hereinafter
Under Article 433 of the NCC, the one who actually as Pineda)
possesses the property is disputably presumed to be the
However, save for certain restrictions. To wit:
owner.
1. Police Power, Taxation, and Eminent Domain of
What are the requisites for you to claim your the State;
ownership? 2. The works, plantations, and excavations he made
1. Title must not prejudice easements or servitudes;
2. Strength of your evidence and not the weakness 3. Compliance with special laws and ordinances;
of the evidence of the defendant. 4. Reasonable requirements for aerial navigation
must be respected.
A owns a land. B occupied A’s property by
N.B. Suppose that minerals were found below the soil, the
tolerance. 1 year lapsed from demand to
land above it, even if privately owned, shall be reverted
vacate. An accion publiciana was filed. back to the state. This is in consonance with the Regalian
Doctrine.
a. Will you grant in favour of A? When you say hidden treasure, what does it
Yes. I would grant the action in favour of A.
mean?
Hidden treasure means any hidden and unknown deposit
Accion publiciana or plenaria de posesion is also used to
of money, jewellery or other precious objects, the lawful
refer to an ejectment suit filed after the expiration of one
ownership of which does not appear. (Pineda)
year from the accrual of the cause of action or from the
unlawful withholding of possession of the realty. (Cruz v. For it to be considered hidden treasure, the following
Torres) requisites must concur:
Here, since a year had already lapsed from the last date of 1. There is deposit of money, jewellery, or other
demand, an accion publiciana and not unlawful detainer, precious objects. (apply ejusdem generis
should be filed in the court. principle)
PROPERTY
RECITS-NOTES-CASES
2. This deposit is hidden or unknown, that is, even his permission, the treasure would not be found and
the owner does not know about it anymore or has discovered. Both de Leon and Pineda subscribe to this
abandoned it, that it is now open to occupation. A point of view.
mislaid property is not included within the
concept of hidden treasure. What if B was hired by A?
3. The lawful owner cannot be traced or identified. B would only be entitled to his compensation and not to
(Pineda) the treasure.
If the ownership is unknown, who becomes If a person, not a trespasser, was employed to look for a
the owner of the hidden treasure? treasure, he is not entitled to any part of the treasure which
may be found unless there is agreement to the contrary.
Under Article 438, hidden treasure belongs to the owner
His only right is to be paid his salary or wage. He is
of the land, building, or other property on which it is
deemed a stranger in a sense that he is not the owner but
found.
is given permission by the owner to enter. (de Leon, citing
What if the owner does not give consent to Manresa)
the finder? How about if the treasure contained
Then the finder would be considered as a trespasser. scientific parts and paintings?
Under Article 438, if the finder is a trespasser, he shall not
The treasures would belong to the finder. However, under
be entitled to any share of the treasure.
the last paragraph of Art. 438, the State may acquire them
What are the requisites for a finder to own his at their just price, which shall be divided in conformity
share on a hidden treasure? with the rule on the second paragraph.
If the finder is a third person, aside from the requisite that What is accession?
what the finder had found falls under the definition of Accession is that right of ownership of which an owner of
hidden treasure, he must likewise find it by chance. a thing has over the products of the said thing (accession
A is the owner of the lot. B entered the discreta), as well as to all things inseparably attached or
incorporated thereto whether naturally or artificially
property as a lessee. One day he found the (accession continua). (Pineda)
treasure by accident.
Is it a mode of acquiring ownership?
Who owns the treasure?
No. It is not. Article 712 enumerates the modes of
Both A and B own the treasure. Under Art. 438, when the
acquiring ownership, which are:
discovery is made on the property of another, and by
chance, one-half thereof shall be allowed to the finder. 1. Occupation;
The other half shall belong to the owner of the property. 2. Intellectual creation;
3. Law;
Suppose that B merely entered A’s 4. Donation;
property, who owns the treasure? 5. Succession
It was only A who owns the treasure. If the finder is a a. Intestate; or
trespasser, he shall not be entitled to any share of the b. Testamentary;
treasure. Here, B entered A’s property without his 6. Tradition; and
permission. B then is a trespasser. Being a trespasser, he 7. Prescription
is not entitled to the treasure. Accession is not included. The reason is that accession
What if B leased the property and had presupposes an existing ownership of an owner over the
principal thing to which the accession is dependent.
a map? (Pineda)
There are conflicting views.
What are the two kinds of accession?
According to Paras, taking the view of Manresa, the
The two kinds of accession are:
treasure should be divided equally between the finder and
the owner even if the finding was the result of a deliberate 1. Accession Discreta – Right to the fruits; and
hunt for the treasure for equity demands the equal sharing 2. Accession Continua – Right to things attached or
for it cannot be denied that had the landowner not given incorporated.
PROPERTY
RECITS-NOTES-CASES
b. Suppose that upon return, it was
What are the different kinds of accession found out that the cow is pregnant.
discreta? Who owns the calf?
The answer would be the same. For the nature of the
Under Article 442, the different kinds of accession
contract is onerous in nature.
discreta are:
N.B. If the contract is not onerous like commodatum, all
1. natural fruits;
the calves born in the possession of the bailee would be
2. industrial fruits; and
owned by the latter in the view of gratuitous contract.
3. civil fruits.
Define natural fruits. A is the owner of the lot. He made

improvements.
Article 442 defines natural fruits as the spontaneous
products of the soil, and the young and other products of
animals. a. Who owns the improvements?
Are animal clones natural fruits? A owns the improvements. As a rule, the owner of the
No. Whether brought by scientific means or not, it would principal property owns all the accessions thereto. The
seem that the young of animals should be considered as accessory follows the principal. Hence, being the owner
“natural” fruits since the law makes no distinction. of the lot, A owns the improvements.
(Paras) b. How about the expenses for
Define industrial fruits. improvements?
Article 442 defines industrial fruits as those produced by A is bound for the expenses of the improvements. The
lands of any kind through cultivation or labour. principle of accessory follows the principal applies. As
the owner of the lot, and having caused the improvements
Define civil fruits. over the lot, A is bound for the expenses.
Article 442 defines civil fruits as the rents of buildings, What are the principles in accession
the price of leases of lands and other property and the
amount of perpetual or life annuities or other similar
continua?
income. The following principles are to be observed:
A owns a lot. B cultivated the same with palay 1. The rules on good faith and bad faith and how it
in bad faith. B was able to harvest 100 cavans govern the relations between the parties.
of palay. Who will be the owner of the palay? 2. Accessories follow the principal.
3. No one should be unjustly enriched at the expense
A would be the owner of the palay since he is the owner of another.
of the land, and B is a planter in bad faith. However, A,
under Article 443, must reimburse B for the expenses for
the production, gathering, and preservation. For even
though B is in bad faith, without his acts, no fruits will
grow at all. No one may unjustly enrich himself at
another’s expense.
A female cow owned by B was leased by A for

3 years. It bore 3 calves.
a. Who owns the calves?

A owns the calves. A contract of lease is an onerous
contract. By virtue of such, the rule is the owner of the
female animal is the owner of the young. (Paras)

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RECITS-NOTES-CASES
What are the rights and obligations of the What are the rights and obligations of the
owner of the land who uses the materials of builder, planter, sower who built in the land
another if both are in good faith? (Art 447) of another if both are in good faith?
See Fig. 1 See Fig. 2
If both are in bad faith? If both are in bad faith?

If the landowner is in bad faith and the If the landowner is in bad faith and the
owner of the materials is in good faith? builder, planter, sower is in good faith?
If the landowner is in good faith but the If the landowner is in good faith but the
owner of the materials is in bad faith? builder, planter, sower is in bad faith?
Landowner in good Landowner in bad

faith faith
 Option would be on  Option would be on Landowner in good Landowner in bad
the landowner on the the owner of the faith faith
principle of the materials for the  Option would be on  Option would be on
Owner of the materials in good faith
accessory follows the landowner acted in the landowner on the the owner of the
principal. bad faith. principle of the materials for the
The owner of the materials accessory follows the landowner acted in
The owner of materials is is entitled to: principal. bad faith.
entitled to: 1. Reimbursement Under Art. 454, the
1. Reimbursement plus damages The landowner may: provisions of Art. 447
so long as he when warranted; 1. Appropriate what would apply, that is:
Builder, Planter, or Sower in good faith
does not remove or has been built,

the materials; or 2. Remove the planted, or sown The builder, planter,
2. Removal of the materials after the payment sower is entitled to:
materials as long whether the of indemnity; or 1. Reimbursement
as no injury works would be 2. To compel the plus damages
would be caused damaged or not builder/planter to when warranted;
to the work done. plus damages pay the price of or
The owner of the land when warranted. land when the 2. Remove the
becomes the owner of the value of land is materials
materials upon payment of lesser than the whether the
the value thereof. value of what works would be
The owner of the materials Both parties are in pari was damaged or not
Owner of the materials in bad faith
cannot complain. He loses delicto. The bad faith of built/planted; or plus damages
his materials and at the one cancels the bad faith 3. If the landowner when warranted.
same time loses his right to of another. Hence, both opted not to The builder, planter, or
reimbursement for are considered as they appropriate the sower is likewise entitled
damages. He may be held were in good faith. thing, he shall for the necessary and
liable for consequential lease the land to useful expenses.
damages sustained by the the
owner of the land. builder/planter.
The builder, planter, or
sower is likewise entitled
for necessary and useful
expenses.
Figure 1. Rights and duties of parties under Art. 447

PROPERTY
RECITS-NOTES-CASES
 Option would be on the Both parties are in pari Here the value of the land (1,000,000.00) was double of
landowner because he delicto. Art. 453 would that from the value of the house (500,000.00). Hence A
was the one in good apply. The bad faith of one cannot sell the land to B.
faith. cancels the bad faith of
Under Art. 449, the another. Hence, both are What if the parties set a period of lease but
builder, planter, or sower considered as they were in
loses what is built, good faith. The provisions there was no agreement. What would
planted, or sown without of Art. 448 would apply. happen?
the right to indemnity.
However, he is entitled to If the parties cannot agree on the terms of the lease, the
reimbursement of may seek the assistance of the court to fix the same.
necessary expenses under (Paras and De Leon)
Builder, Planter, or Sower in bad faith
Builder, Planter, or Sower in bad faith
Art. 452 for the

preservation of the land. What if the builder, planter, sower can’t fulfil
The landowner may:
1. Appropriate what
the demand of the owner?
has been built, If the landowner does not choose to appropriate the
planted, or sown
without
improvements and he cannot oblige the builder, etc. to pay
obligation to pay the price of land (Such as when he is without financial
indemnity; means), the latter shall pay reasonable rent. (De Leon)
2. Demand the
builder, etc. for
the removal of
what has been Suppose that the landowner had decided to
built, planted, or appropriate the building. The land owner did
sown at the
latter’s expense;
not pay. Can he file an ejection against the
or builder?
3. Compel the
builder/planter to The landowner cannot file an ejection case against the
pay the price of builder. Until the indemnity which includes the necessary
the land or for the and useful expenses has been paid in full by the
sower to pay for landowner, the builder, etc. may retain both the land and
the reasonable the improvements even against the real owner. (Mercado
rent of the land;
The landowner may seek v. CA)
damage from the builder,
The right of retention is considered as one of the measures
planter, or sower arising
from Arts. 449 and 450 devised by the law for the protection of builders in good
Figure 2.Rights and duties of parties under Arts. 448- faith. Its object is to guarantee full and prompt
454 reimbursement as it permits the actual possessor to remain
in possession while he has not been reimbursed (by the
A parcel of land owned by A is worth person who defeated him in the case for possession of the
500,000.00. B, a builder, built a house worth property) for those necessary expenses and useful
1,000,000.00. Can A sell the land to B? improvements made by him on the thing possessed.
Accordingly, a builder in good faith cannot be compelled
Yes. A can sell the land to B. The landowner may sell the to pay rentals during the period of retention nor be
building if the value of the building is greater than the disturbed in his possession by ordering him to vacate.
value of the land. (Nuguid v. CA)
Suppose that the value of the parcel of Suppose that B built a building on A’s lot. C
land was 1,000,000.00 and the house rented the building. To whom should the
was for 500,000.00. Same question. proceeds of rent would go?
It depends. If the value is substantially the same or slightly The proceeds of the rent would go to B. Until B is fully
lesser, A can sell the land to B. However, if the value of paid, B is given the right to retain the building even
the land is substantially greater than the value of the against the owner of the land. (Martinez v. Baganus). As
building, then A cannot sell the land to B. such, the rentals that would be paid by C would go to B.
Once that A paid B for the indemnity, then the rents would

PROPERTY
RECITS-NOTES-CASES
now go to A from the time of appropriation by the latter What do you mean by negligence in good
over the building. faith?
Suppose that B was a possessor in bad faith. Good faith does not necessarily preclude negligence, for,
Can the A demand rent against B? in fact, in negligence, there is no intention to do wrong or
cause damage unlike in bad faith which presupposes such
The law only gives the landowner the right to demand rent
intention. (De Leon)
from the sower. However, it is silent on the part of the
builder/planter. What are the rights and obligations between
It is submitted that A cannot demand rent from B. A can the landowner, the builder/planter/sower,
only demand the sale of the property, plus damages, to B. and the owner of the materials?
If B refused to purchase the property, A may sell the See Fig. 3
property for public auction and apply the proceeds of the
sale as indemnity. (See Bernardo v. Bataclan) The relation of the landowner and the builder, planter
and sower would be governed by Arts. 448-454. Art.
Why does the Civil Code allow the landowner 456 governs the relation of the builder/planter/sower to
to charge rentals only on the sower? the owner of the materials. The landowner would only
be subsidiarily liable from the owner of the materials.
The nature of the acts done by the sower, unlike the
builder and the planter, do not impose permanency over If only the owner of land acted in good faith, he can
the property. (The plants sown by the sower would either exercise his alternative rights under Arts. 449 to 450
be seasonal, semi-annual, or annual while that of the with the right to demand for damages from both. (Art.
planter would be perennial in nature) 451). The owner of the materials is entitled to be
reimbursed by the builder, etc.
What would happen the landowner decided
to sell the property but the builder/planter Note that If all acted in bad faith, the provisions of Art.
cannot pay the value of the land? 453 would apply.
If the landowner rightfully chose to sell the property but If the both the landowner and the builder, etc are in
the builder/planter failed or refused to pay the value of the good faith:
land, the landowner may: Owner of Materials in Owner of Materials in
Good Faith Bad Faith
1. They may assume a relation of a lessor-lessee, He must be reimbursed He forfeits all the rights to
and should there be disagreement on the terms, for the value of his be indemnified. In fact he
the court could fix them. (See Miranda v. materials by the builder, can be held liable for the
Fadullon); or planter, or sower. If the damages caused.
2. They may sell the property at public auction and latter cannot pay, the
apply the proceeds of the sale, first, to the value landowner shall be
of the land and the excess at the improvements. subsidiarily liable
(Bernardo v. Bataclan) provided that he did not
choose to appropriate the
N.B. The landowner cannot file an action for performance thing or availed Art. 450.
for a person cannot be compelled to enter a contract Fig. 3 Rights and duties of parties under Art. 455
against his will.
What if the landowner and the owner of the
Suppose that the landowner owns the materials were in good faith but the builder,
materials. And the builder/planter/sower planter, sower was in bad faith and the
built/planted/sown. What relation do they landowner opts to sell the building?
have? If the builder, etc. acted in bad faith, he shall be
The relation would be one of employer-employee. The principally liable to the owner of the materials for their
landowner would be the employer while the value, plus damages. In case of insolvency, the owner of
builder/planter/sower would be the employee. The the land shall be subsidiarily liable to the owner of the
provisions of the Labor Code would govern over them. materials for their value but not for damages for he acted
in good faith. The builder, etc. is liable to the owner of the
land.

PROPERTY
RECITS-NOTES-CASES
If the landowner opts to sell the building, the proceeds of
the sale would be principally for the satisfaction of the
builder/planter/sower’s liability to the owner of the land
and subsidiarily to the satisfaction of the landowner’s
liability to the owner of the materials.
What are the different classes of accession

natural?
The different classes of accession natural are:
1. Accretion;
2. Avulsion;
3. Change of the course of a river; and
4. Formation of islands.
Distinguish alluvium from avulsion.

Alluvium Avulsion
 The deposit must be  The deposit was sudden or Figure 4.
gradual and imperceptible. abrupt.
 The riparian owner owns  The ownership over the Referring to figure 4, suppose that D lost 500
the alluvium. detached soil would sq. m from the opening of a new bed and the
remain to the original river abandoned 1000 sq. m from its change
owner.
 The soil cannot be  The detached portion can of course.
identified. be identified.
a. How much would be owned by D?
D would own the entirety of the bed. The phrase “in
Suppose that A owns a tree near the proportion to the area lost” would only apply if there are
riverbank. Then the sudden flow of the river two or more owners whose lands are occupied by the new
moved the tree and its land to B’s property bed. If only one owner lost a portion of his land, the entire
intact. old bed should belong to him. (De Leon)
a. Who owns the tree? b. Suppose that A lost 250 sq. m. How
A would still be the owner of the tree. Since the tree was much would each own from the
not uprooted, the provisions of Art. 460 would not apply. abandoned bed?
Instead the provisions on avulsion would govern. By the A and D would own the abandoned bed in proportion to
principle that the accessory follows the principal. Hence, the area lost. In application D, losing 500 sq. m would get
the owner of the detached portion would be the owner of 2/3 of the 1000 sq. m bed. The remaining portion would
the tree rooted on it. A could claim the detached portion go to A.
within two years.
c. Can D compel the state to restore the
Note that Art. 460 would apply if the tree was uprooted.
Under art. 460, the owner must claim them within six
river to its old form?
months and shall pay the expenses gathering them or No. When a river or stream suddenly changes its course
putting them in a safe place. to traverse private lands, the owners of the affected lands
may not compel the government to restore the river to its
b. Suppose that A made a claim but former bed. (Section 58, Water Code)
nothing happened for two years. Can B
claim the tree?
Yes. Although Art. 459 does not expressly say, it would d. Can D undertake the restoration of the
seem that his failure to do so would have the effect of river to its old form?
automatically transferring ownership over it to the owner
Yes. The owners of the affected lands may undertake to
of the other estate. (De Leon)
return the river or stream to its old bed at their own
expense; provided, that a permit therefor is secured from

PROPERTY
RECITS-NOTES-CASES
the Secretary of DPWH and work pertaining thereto are
commenced within two years from the change in the
course of the river or stream. (Id.)
e. Can the government undertake the

restoration of the river to its old form?
Yes. The government can undertake the restoration of the
river. The owners of the affected lands cannot restrain the
government from taking steps to revert the river or stream
to its former course. The owners of the land thus affected
are not entitled to compensation for any damage sustained
thereby. (Id.)
Figure 6.
Referring to Figure 6, suppose that due to the

acts of the river, a new dry bed had formed
east to the island. Who owns that dry bed?
The dry bed would belong to the state. Article 502 of

the Civil Code expressly declares that rivers and their
natural beds are public dominion of the State. It
follows that the river beds that dry up continue to
belong to the State as its property of public dominion,
unless there is an express law that provides that the
dried-up river beds should belong to some other
Figure 5. person. (Republic v. Santos III (2012))
Referring to Figure 5, suppose that the river
cuts through A’s property which an island What is the rule on the formation of islands in
forms out of the actions of the river. Who seas and lakes?
would own the island? Under Art. 464, the islands what were formed on seas and
on lakes belong to the State.
A would be the owner of the island. Under Art. 463,
whenever the current of a river divides itself into How about on rivers?
branches, leaving a piece of land or part thereof isolated,
If a river is navigable, under Art. 464, it would belong to
the owner of the land retains his ownership. He also
the state.
retains it if a portion of land is separated from the estate
by the current. If the river is non-navigable and floatable, the provisions
of Art. 465 would govern which is, that the island would
The new bed however, shall become part of public
belong to the owners of the margins or banks nearest to
dominion.
them. However, if the island is in the middle of the river,
it shall be divided in halves. The owner of the nearer
margin would be the owner thereof.
Suppose that a pond went dry and A & B’s land

were adjacent to it. Who would own the dried
pond?
The dried pond would belong to the state. Under Art. 458:

PROPERTY
RECITS-NOTES-CASES
Article 458. The owners of estates adjoining ponds or 2. They are united in such a way that they form into
lagoons do not acquire the land left dry by the natural a single object; and
decrease of the waters, or lose that inundated by them 3. They are so inseparable that their separation
in extraordinary floods. would impair their nature or result in substantial
Therefore, neither A nor B would own the dried pond. injury to either component.
Distinguish pond from lake and lagoon. The different kinds of adjunction are: (I-SPEW)
Pond – is a body of water without an outlet, larger than a 1. Inclusion;

puddle and smaller than a lake, or a like body of water 2. Soldering;
with small outlet. 3. Painting/Pintura;
4. Escritura/Writing; and
Lagoon – is a small lake, ordinarily of fresh water, and 5. Weaving/Tejido.
not very deep, fed by floods, the hollow bed of which is
bounded by elevations of land.
Lake – is a body of water formed in depressions of the What’s the order of preference in
earth, ordinarily fresh water, coming from rivers, brooks, determining the principal from an accessory
or springs, and connected with the sea by them. in a movable?
Distinguish river from creek, current, and In the order of application, the principal is that:
torrent. 1. To which the accessory is united as an ornament
River – is a natural surface stream of water of or for its use or perfection. – “Rule of purpose”.
considerable volume and permanent or seasonal flow 2. Of greater value, if they are of unequal values;
emptying into an ocean, lake, or other body of water. 3. Of greater volume, if they are of equal value; and
4. That of greater merits taken into consideration all
Current – refers to the continuous movement of a body pertinent legal provisions applicable as well as
of water, often horizontal, in a certain direction. comparative merits, utility and volume of their
Creek – is a small inlet extending further into the land; a respective things. (Manresa)
natural stream of water normally smaller than and often a
tributary to a river.
A owns a diamond worth 80,000.00. B owns
Torrent – is a violent stream of water as a flooded river
or one suddenly raised by a heavy rain and descending a
a ring worth 40,000.00. B caused the union.
steep incline; a raging flood or a rushing stream of water. What would happen,
What are the types of accession with respect If both are in good faith?
to movables? (See Fig. 7)
The different types of accession with respect to movables If A is in good faith and B is in bad faith?
are:
(See Fig. 7)
1. Adjunction;
2. Mixture;
a. Comixtion; If A is in bad faith and B is in good faith?
b. Confusion;
3. Specification. (See Fig. 7)
Adjunction is the union of two or more movable things

belong to different owners in such way that they form into
a single object, but each one of the component things
If both are in bad faith?
preserves its value. (See Fig. 7)
Its requisites are:
1. There must be two or more movables belonging
to different owners;

PROPERTY
RECITS-NOTES-CASES
Principal in good faith Principal in bad faith If all are in bad faith, both would be treated as if they were
The owner of the principal The owner of the in good faith.
Accessory in good faith
acquires the property upon accessory thing shall have

identification. If accessory the right to choose to N.B. Good faith can exist with negligence.
is more valuable, either:
separation with injury (but  Pay him the What is specification?
not destruction) is value plus
allowed. damages; or Specification takes place whenever the work of a person
 Have it separated is done on the material of another, such material, in
with injury plus consequence of the work itself, undergoing a
damages. transformation. (Manresa)
There is no provision. It is Both parties are in pari It is imparting of a new form of material belonging to
Accessory in bad faith
submitted that the owner delicto. The bad faith of another. (Sanchez Roman)
of the accessory shall lose one cancels the bad faith
the thing incorporated plus of another. Hence, both In specification, the labor is the principal and the material
damages suffered by the are considered as they used is the accessory.
principal. were in good faith.
What are the rules in specification?
If the worker is in good faith and the owner of materials
in good faith:
(Figure 7.)  GR: Worker appropriates the new thing BUT he
How do you determine the valuation of the must indemnify for the materials.
 ETR: If the materials used were more valuable,
property?
the owner of the material may:
Payment should be: 1. Appropriate the new thing but pays for
the work; or
1. Delivery of the thing in kind or in value;
2. Demand indemnity for the material.
2. Payment of price as appraised plus sentimental
value under Art. 475. If the worker is in good faith but the owner of the
materials is in bad faith:
What do you mean by mixture?
 There is no provision. It is submitted that the
Mixture is the process or act which takes place when two
owner of the materials loses his right to the
or more things belonging to different owners are mixed
property plus he would pay for the damages
and combined with the respective identities of the
suffered by the principal.
component parts destroyed or lost. (Manresa)
If the worker is in bad faith but the owner of the materials
Mixture could either be:
is in good faith:
1. Commixtion – mixture of solid things; or
 GR: The owner of the materials may:
2. Confusion – mixture of liquid things.
1. Appropriate the thing without paying for
What is the principle in mixture? labor; or
2. Demand indemnity plus damages.
When things are caused, or by chance, or accidentally in  ETR: The owner of the materials CANNOT
good faith, or one in good faith but by will of the other appropriate if the work is more valuable for
party, were mixed together, co-ownership on the thing artistic or scientific reasons.
would result in proportion to the value of the things
mixed. Distinguish Adjunction; Mixture; and
Specification.
What is the rules regarding on parties on
mixture? Adjunction Mixture Specification
There must be at There must be at At least one
If all are in good faith, co-ownership would result. least two least two movable is
movables. movables. needed for it to
If one is in bad faith, the thing belonging to him shall be happen
lost plus damages. Accessory The parties would Accessory
follows the be governed by follows the
principal. principal.
PROPERTY
RECITS-NOTES-CASES
the rules on co- Will the action prosper if the IRCEP is invalid
ownership.
Component parts May not retain its Component parts
in front?
remain or original nature. remain or No. An action to quiet title would only prosper if the
preserve its preserve its IRCEP is apparently valid. Nevertheless, the owner may
nature. nature.
avail other remedies (i.e. Reconveyance, Reinvindicatory
Action, etc.) suppose that the IRCEP is invalid in face.
What is quieting of title and its requisites?
What do you mean by indefeasible?
An action to quiet title is a remedy for the owner of a real
A title is indefeasible. It cannot be lost, annulled, or
property or legal interest therein, to remove the cloud on
overturned.
a title existing through an instrument, record, claim,
encumbrance, or proceeding, which is apparently valid, Distinguish legal title from equitable title.
but in truth and in fact invalid, ineffective, voidable, or
unenforceable, and that it is prejudicial to the owner. Legal title is the actual ownership of the land. Equitable
title relates to a person’s interest in the property (ex.
The owner may likewise file an action to prevent a cloud usufruct)
of title. This action is pre-emptive.
What is the duty of the plaintiff to the
 A cloud on title is a semblance on title, either defendant in the action for quieting of title?
legal or equitable, or a claim or a right in real
property, appearing in some legal form , but Such duty is provided in Art. 479, which states:
which is in fact invalid or unfounded, or which
Article 479. The plaintiff must return to the defendant
would be inequitable to enforce. (Iglesia Ni all benefits he may have received from the latter, or
Cristo v. Ponferrada) reimburse him for expenses that may have redounded
to the plaintiff's benefit.
Its requisites are:
The maxim “He who seeks equity must do equity” applies.
1. There is an owner of real property or interest
therein; What is the prescriptive period for the
2. There is: (IRCEP) action?
1. Instrument;
2. Record; The prescriptive period would be:
3. Claim; If the owner is in possession – it is imprescriptible.
4. Encumbrance; or
5. Proceeding If the owner is not in possession
Which is apparently valid.  If the one who caused the cloud is in good faith:
10 years;
3. That such IRCEP is in truth and in fact: (I-  If in bad faith: 30 years
IVUTE)
1. Invalid; A sold in a private instrument to C with right
2. Ineffective; to repurchase. But the right to repurchase was
3. Voidable; not exercised. C sold it on a private
4. Unenforceable;
instrument to G. G was in possession for 41
5. Terminated/extinguished; or
6. barred by Extinctive prescription
years. G filed a case against the heirs of A to
4. And such was prejudicial to said title. compel them from formal deed of
conveyance. Did the action already
What is the nature of quieting of title? prescribed?
It is an action quasi in rem. It is a personal action No. I would rule in favour of G. An action to quiet title
concerning real property. (Evangelista v. Santiago) brought by a person in possession of the property is
Is quieting of title applicable to movables? imprescriptible. (Gallar v. Hussein)
No. By express provision of law, quieting of title is

applicable to real property or their interest therein.

PROPERTY
RECITS-NOTES-CASES
A & B are neighbors. A wants to assert the September 2001, respondent filed a complaint for
boundaries of his territory. Can he file an unlawful detainer. Petitioners insist that they should be
action for quieting of title? considered builders in good faith who have the right of
retention until reimbursement by respondent is made and
No. An action to quiet title or to remove cloud on title may they also argue that to apply Art 1678 to their case would
not be brought for the purpose of settling a boundary result to sheer injustice, as it would amount to giving
dispute. The case is not one where a complainant in away the hotel and its other structures at virtually bargain
possession of a specific piece of land, and a defendant out prices.
of possession, but claiming some right or title, are
contending as to which one has the better right to that Issue: Is petitioner a builder in good faith?
same parcel; but it is a case where the titles are not
opposed, and the basis and existence of all right and claim Ruling: No. Petitioners have no adverse claim or title to
depend simply upon where the original line runs. (Vda. de the land. In fact, as lessees, they recognize that the
Aviles v. CA) respondent is the owner of the land. What petitioners
insist is that because of the improvements, which are of
What is the duty of the owners in ruinous substantial value, that they have introduced on the leased
buildings or in falling trees? premises with the permission of respondent, they should
be considered builders in good faith who have the right to
The duty of the owners in ruinous buildings is governed
retain possession of the property until reimbursement by
by Art. 482; while the duty on falling trees is governed by
respondent. The introduction of valuable improvements
Art. 483.
on the leased premises does not give the petitioners the
Article 482. If a building, wall, column, or any other right of retention and reimbursement which rightfully
construction is in danger of falling, the owner shall be belongs to a builder in good faith. Otherwise, such a
obliged to demolish it or to execute the necessary work situation would allow the lessee to easily “improve” the
in order to prevent it from falling. lessor out of its property.
If the proprietor does not comply with this obligation,
the administrative authorities may order the Petition denied.
demolition of the structure at the expense of the owner,
or take measures to insure public safety. Adlawan v. Adlawan
Article 483. Whenever a large tree threatens to fall in Adlawan v. Adlawan
such a way as to cause damage to the land or tenement G.R. No. 161916; January 20, 2006; First Division
of another or to travelers over a public or private J. Ynares-Santiago
road, the owner of the tree shall be obliged to fell and
remove it; and should he not do so, it shall be done at Facts: A house and lot was registered in the name of
his expense by order of the administrative authorities Dominador Adlawan, the father of petitioner Arnelito
Adlawan. He is the acknowledged illegitimate child of
Dominador who is claiming that he is the sole heir. He
Sulo sa Nayon Inc. v. Nayong Pilipino then adjudicated to himself the said house and lot to
Foundation himself and out of generosity allowed the siblings of his
father to occupy the property provided that they vacate
Sulo sa Nayon Inc vs Nayong Pilipino Foundation
when asked. Time came when he demanded that they
G.R. No. 170923; January 20, 2009; First Division
vacate and when they refused he filed an ejectment suit
C.J. Puno
against them. His aunt and uncle on the other hand,
Facts: On 1975, Respondent leased to petitioner a portion Narcisa and Emeterio denied his allegations claiming that
of land for the construction and operation of a hotel the said lot was registered in their parents’ name and they
building for an initial period of 21 years until May 1996 had been living in the said house and lot since birth. The
and renewable for 25 years upon due notice in writing to only reason why the said house and lot was transferred in
respondent at least 6 months prior of the expiration of the Dominador’s name was when their parents were in need
lease. On March 1995, petitioners sent respondent a letter of money for renovating their house, their parents were
notifying the latter’s intention to renew the contract for not qualified to obtain a loan and since Dominador was
another 25 years and that they executed a Voluntary the only one who had a college education, they executed
Addendum to the lease agreement. Beginning 2001, a simulated deed of sale in favor of Dominador. The MTC
petitioners defaulted in the payment of their monthly dismissed the complaint. The RTC reversed the MTC and
rental so respondent demanded petitioner to pay. On ordered Narcisa and Emeterio to turn over the possession
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RECITS-NOTES-CASES
of the lot to Arnelito. The CA reinstated the decision of filed before Branch 3 of the Municipal Trial Court in
the MTC holding that Arnelito and the heirs of Graciana Cities of Cagayan de Oro City, an action for unlawful
are co-heirs thus he cannot eject them from the property detainer against respondent-spouses. When the case was
via unlawful detainer. referred for mediation, respondent Angeles offered to pay
P220,000.00 to settle the case but petitioner refused to
Issue: Can Arnelito maintain an ejectment suit? accept the payment. The case was later withdrawn and
consequently dismissed because the judge found out that
Ruling: No. The theory of succession invoked by Arnelito the titles were already registered under the names of
would prove that he is not the sole heir of Dominador. respondent-spouses. Petitioner, on July 27, 2005, filed the
Since he was survived was his wife, upon his death, RTC of Cagayan de Oro City, a Complaint for
Arnelito and Graciana became co-owners of the lot. Upon Cancellation of Title, Recovery of Possession,
her death, her share passed on to her relatives by Reconveyance and Damages, against respondent-spouses
consanguinity thus making them co-owners as well. It is and all persons claiming rights under them. The RTC
true that a co-owner may bring such an action w/o rendered judgment declaring the Deed of Absolute Sale
necessity of joining all the co-owners as plaintiffs because invalid for lack of consideration.
it is presumed to be instituted for the benefit of all BUT if
the action is for the benefit of the plaintiff alone, the Issue: Is petitioner obliged to reimburse respondent
action should be dismissed. spouses the value of the new house minus the cost of the
original house?
Since Petitioners action operates as a complete
Ruling: Yes. Petitioner posits that Article 448 of the Civil
repudiation of the existence of co-ownership and not in
Code does not apply and that respondent-spouses are not
representation or recognition thereof. Dismissal of the
entitled to reimbursement of the value of the
complaint is therefore proper.
improvements made on the property because they were
Petition denied. builders in bad faith. At the outset, the issue of whether
respondent-spouses are builders in good faith or bad faith
Communities Cagayan Inc. v. Spouses Nanol is a factual question, which is beyond the scope of a
petition filed under Rule 45 of the Rules of Court. In fact,
Communities Cagayan Inc. v. Spouses Nanol petitioner is deemed to have waived all factual issues
G.R. No. 176791; November 14, 2012, Second since it appealed the case directly to the SC. As a general
Division rule, Article 448 on builders in good faith does not apply
J. Del Castillo where there is a contractual relation between the parties.
Facts: Sometimes in 1994, respondent-spouses Arsenio But since the contract to sell was not attached, Article 448
and Angeles Nanol entered into a Contract to Sell with would apply. Article 448 of the Civil Code applies when
petitioner whereby the latter agreed to sell to respondent- the builder believes that he is the owner of the land or that
spouses a house and Lots 17 and 19 located at Block 16, by some title he has the right to build thereon, or that, at
Camella Homes Subdivision, Cagayan de Oro City, for least, he has a claim of title thereto. Concededly, this is
the price of P368,000.00. Respondent-spouses, however, not present in the instant case. The subject property is
did not avail of petitioner’s inhouse financing due to its covered by a Contract to Sell hence ownership still
high interest rates. Instead, they obtained a loan from remains with petitioner being the seller. Nevertheless,
Capitol Development Bank, a sister company of there were already instances where this Court applied
petitioner, using the property as collateral. Unfortunately, Article 448 even if the builders do not have a claim of title
the bank collapsed and closed before it could release the over the property. However, in some special cases, the
loan. Thus, respondent-spouses entered into another Court had used Article 448 by recognizing good faith
Contract to Sell with petitioner over the same property for beyond this limited definition. Thus, in Del Campo v.
the same price of P368,000.00. This time, respondent- Abesia, this provision was applied to one whose house –
spouses availed of petitioner’s in-house financing thus, despite having been built at the time he was still co-owner
undertaking to pay the loan over four years, from 1997 to – overlapped with the land of another. This article was
2001. Sometime in 2000, respondent Arsenio demolished also applied to cases wherein a builder had constructed
the original house and constructed a three-story house improvements with the consent of the owner. The Court
allegedly valued at P3.5 million, more or less. On ruled that the law deemed the builder to be in good faith.
September 10, 2003, petitioner sent respondent-spouses a In Sarmiento v. Agana, the builders were found to be in
notarized Notice of Delinquency and Cancellation of good faith despite their reliance on the consent of another,
Contract to Sell due to the latter’s failure to pay the whom they had mistakenly believed to be the owner of
monthly amortizations. In December 2003, petitioner the land.
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RECITS-NOTES-CASES
In conformity with the foregoing pronouncement, we hold 2. That such is owned by Two or more persons;
that petitioner, as landowner, has two options. It may 3. That each of the co-owner’s right must be limited
appropriate the new house by reimbursing respondent only to his Ideal share of the physical whole.
Angeles the current market value thereof minus the cost
of the old house. Under this option, respondent Angeles How do you create co-ownership?
would have "a right of retention which negates the A Co-ownership can be created by: (LOCCS)
obligation to pay rent." In the alternative, petitioner may
sell the lots to respondent Angeles at a price equivalent to 1. Law;
the current fair value thereof. However, if the value of the 2. Occupation;
lots is considerably more than the value of the 3. Contract;
improvement, respondent Angeles cannot be compelled 4. Chance; and
to purchase the lots. She can only be obliged to pay 5. Succession and Donation;
petitioner reasonable rent. The amount to be refunded to
Distinguish Co-ownership from partnership.
the builder under Article 546 of the Civil Code should be
the current market value of the improvement. The raison
Under Article 1767, by the contract of partnership two or
d’etre for this provision has been enunciated thus: Where
more persons bind themselves to contribute money,
the builder, planter or sower has acted in good faith, a property, or industry to a common fund, with the intention
conflict of rights arises between the owners, and it of dividing the profits among themselves. Two or more
becomes necessary to protect the owner of the persons may also form a partnership for the exercise of a
improvements without causing injustice to the owner of profession.
the land. In view of the impracticability of creating a state
of forced co-ownership, the law has provided a just CO-OWNERSHIP PARTNERSHIP
solution by giving the owner of the land the option to Co-ownership is created A partnership can ONLY
acquire the improvements after payment of the proper by law, contract, be created through a
indemnity, or to oblige the builder or planter to pay for succession, occupation, contract.
the land and the sower the proper rent. He cannot refuse and chance.
to exercise either option. It is the owner of the land who A co-ownership does not A partnership has a
is authorized to exercise the option, because his right is have a separate juridical separate and distinct
older, and because, by the principle of accession, he is entity. entity separate and
entitled to the ownership of the accessory thing. distinct from that of
partners.
Petition partially granted. The purpose is for The purpose is for profit
enjoyment. or for gain.
A co-owner may alienate A partner cannot dispose
TITLE III. – CO-OWNERSHIP or dispose his ideal share his share in the
without the consent of partnership without the
Define Co-ownership. other co-owners. consent of all other
There is co-ownership whenever the ownership of an partners.
undivided thing or right belongs to different persons. (Art. The death of a co-owner The death of a partnership
does not extinguish a co- extinguishes a
484)
ownership. His ideal partnership.
Co-ownership is that form of ownership which exists shares are transferred to
whenever an undivided thing or right belongs to different his heirs.
persons. It is one aspect of ownership. (De Leon) In co-ownership by The partnership may last
contract, the co-owners either at will or at a fixed
As a right, it has been defined as the right of common can stipulate the term for term. The parties may set
dominion which two or more persons have in a spiritual not more than 10 years, the term without limit as
or ideal part of a thing which is not materially or renewable with another 10 set by law.
physically divided. (Sanchez Roman) years. An agreement for
more than 10 years would
be void.
What are the requisites for co-ownership? In co-ownership by

The requisites are as follows: (UTI) succession or donation,
the donor or the testator
1. There is an Undivided thing or right; can prohibit the partition
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RECITS-NOTES-CASES
of the co-owned property Suppose that B claims that he was not
for up to 20 years. notified. Can A ask for reimbursement
There is no mutual An act of the partner binds
representation in co- the partnership.
to B?
ownership. Yes. Under Art. 489, the acts of repairs for preservation
How is co-ownership governed? may be made at the will of one of the co-owners, but he
must, if practicable, first notify his co-owners of the
Co-ownership is governed by: necessity for such repairs.
1. Contracts; The law requires that if practicable, the co-owner must
2. Special provisions of law; and in absence thereof, notify the other co-owners of the necessity of the repairs
3. The Civil Code for the absence of it would open the doors to bad faith or
fraud. However, if impracticable, or when very urgent,
How would you determine the benefits and and the co-owners are in remote places, the notice may be
charges in co-ownership? dispensed with. (Capistrano)
Under Art. 485, the share of the co-owners in the In application, A can demand reimbursement from B for
benefits as well as in the charges shall be notice may be dispensed with. However, B can pay less if
proportional to their respective interests. he was able to prove that there are less expensive means
in repairing the property. (Paras)
The portions belonging to the co-owners in the co- Suppose that A did not notify anyone.
ownership shall be presumed equal, unless the
A spent 1,000,000.00 which is more
contrary is proved.
than the value of the expected repairs.
Suppose that A, B, and C are siblings. They co- Can B, C, and D refuse from paying A?
own a parcel of land. C alleges that since he is Yes. In cases of lack of notice, the other co-owners may
the youngest, he wants that he would not pay challenge the advances made by their co-owners.(Paras)
taxes, and A as the oldest sibling, should pay And the co-owner who advanced them has the burden of
two thirds of the taxes. Is C’s contention valid? proving that they were properly incurred to necessary
expenses, (De Leon) and not to useful and other expenses.
No. C’s contention is not valid. (Pineda)
Under Article 485, any stipulation in a contract to the In this case, the expenses made by A was in excess from
contrary shall be void. the value of the expenses of the expected repairs. A has
the burden to prove that they were properly incurred and
In application, the shares of the parties shall be
that the same was necessary expenses. Otherwise, if it was
proportional to their respective interests. C cannot
not properly incurred, B, C, and D may pay lesser than the
stipulate that he be exempted prom paying taxes for such
amount, or if was not for necessary expenses, they may
shall be void.
not pay at all.
A, B, C, and D are co-owners of a building. A
As far as preservation of the property is
did the repairs on the said property. He asked
concerned, how many co-owners are
for reimbursement.
required to give consent?
Can A ask for reimbursement? Under Art. 489, even the will of one co-owner can
A can ask for reimbursement. Under Article 488, each co- proceed to repair the thing they owned in common.
owner shall have a right to compel the other co-owners to
contribute to the expenses of preservation of the thing or How about in leasing of property?
right owned in common. The acts of A in repairing the It depends if the act is an act of alteration, it requires the
property are necessary expenses for the preservation of consent of all other co-owners for it to be valid, but if the
the same. Therefore, A can ask for reimbursement from act is an act of administration, it requires the consent of
the other co-owners. the financial majority of the co-owners would be required
for it to be valid. In both cases, notice must be likewise
given to other co-owners. See succeeding questions.

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RECITS-NOTES-CASES
Suppose that A only gave consent to  For it to be valid, ALL the other co-owners must give
the lease, and B, C, D, did not agree. consent.
What constitutes majority?  Consent may be given expressly or impliedly
 Note that such expenses must be express,
The majority would be determined based on the financial not presumed to entitle recovery and the
majority and not on the majority on the number of co- burden is upon the co-owner seeking
owners. reimbursement to prove that such
Suppose that the lease of land is: consent is given. (Javier v. Javier)
 A co-owner who proceeded with the alteration of the
More than 1 year, what is it? thing without the consent of other co-owners would
make him in bad faith and as punishment, he should:
The lease is an act of alteration regardless whether or not
1. Lose what he has spent;
the same is registered in the registry of deeds.
2. Be obliged to demolish the
Less than one year and not improvements done, and
registered in the registry of 3. Be liable to pay for losses and damages
deeds. What is it? to the community property or other co-
owners may have suffered.
The lease is an act of administration for the same is  Whatever is beneficial or useful to the co-
temporary in nature and no real rights is vested on to the ownership shall belong to it. (3 Manresa
lessee. 468)
Less than one year, but What if the property subject of lease is a
registered in the registry of personal property? Is such lease an act of
deeds. What is it? alteration or an act of administration?
The lease is an act of alteration for real rights have been The lease of a personal property is merely an act of
vested to the lessee even if the period is less than one year. administration. The lease of personal property is merely
transitory and do not affect its essence, nature, or
Who may file an ejectment case in co-
substance.
ownership?
Any co-owner may bring an ejectment case where the co-
owned property is involved. Under Art 487: A D
1/8 3/8
Article 487. Any one of the co-owners may bring an
action in ejectment.
As a co-owner, he may, by himself alone, bring an action B C

for the recovery of the co-owned property pursuant to the 1/4 1/4
well-settled principle that in a co-ownership, co-owners
may bring actions for the recovery of co-owned property Figure 8.
without the necessity of joining all the other co-owners as
Referring to Figure 8, A, B, C, and D are
co-plaintiffs because the suit is presumed to have been
filed for the benefit of his co-owners. (Basbas v. Sayson, owners of a parcel of land. Suppose that D
656 SCRA 151) and C consented on lease the property for six
months to L. Is it allowed?
What are the rules in alteration?
It depends. If the lease would not be registered, it is
An alteration contemplates a change made by a co-owner allowed. A lease of unregistered real property for one year
in a thing owned in common which involves: or less is an act of administration. (Enriquez v. A.S.
1. Change in the thing from the state or essence in Watson & Co. 22 Phil 624) A majority would only be
which others believe it should remain; or needed. Here, C and D constitutes a majority. Therefore
2. Withdrawal of the thing from use to which they they are allowed to lease the property to L.
wish it to be intended; or However, if the lease is registered, it is not allowed for it
3. Any other transformation which prejudices the is an act of alteration. For it to be valid they need to get
condition or substance of the thing or its the consent of the remaining co-owners.
enjoyment by others. (3 Manresa 465)
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RECITS-NOTES-CASES
How about if only B and C consented to disposition affects only the seller co-owner’s share pro
the lease of land? indiviso. (Aromin v Floresca (2006))
No. They are not allowed regardless whether the lease is However, the remedy of the other co-owners is that they
registered or not. For the lease of unregistered lands for may file an action for partition under Rule 69 of the rules
less than 1 year, a majority is needed, and that is more of court.
than 50 percent of the interest. Here B and C’s interest
combined is just an exact 50% of the whole, therefore
If A sold his property to E. In an
there is no majority. extrajudicial partition, can B, C, and D
divide it among themselves?
How about if A, B, and C consented to
No. The sale if A of his share to E would make E a co-
the lease of land? owner of the property. Since the law grants them the right
It depends. If the lease would not be registered, it is to participate in the partition, it is understood that notice
allowed. A lease of unregistered real property for one year must be given, although the law does not expressly so
or less is an act of administration. Here, A, B, and C provide. (De Santos v. Bank of the Phil. Islands, 58 Phil.
constitutes a majority. Therefore they are allowed to lease 784).
the property to L.
But suppose that there is a partition
However, if the lease is registered, it is not allowed for it
is an act of alteration. For it to be valid they need to get
done without E. Can E invalidate such
the consent of the remaining co-owners. partition?
It depends. E cannot invalidate such partition if there is
Is it possible that A would sell his share
estoppel for it will be their fault if they do not appear after
to a third person? such notification and ordinarily, they will not be allowed
Yes. Under Art. 493, a co-owner shall have the full to impugn the partition. However, E can invalidate such
ownership of his part and of the fruits and benefits if fraud against him has been committed by the other co-
pertaining thereto, and he may therefore alienate, assign owners. (Id.)
or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involved. In
If A mortgaged the same to E, what
this case, A is the full owner of his 1/8 interest over the would happen to the share of A?
property. There is nothing under the law which would The act of mortgage does not make E a co-owner of the
prohibit A from alienating his interest over the property property. It would still be A who still owns the property
to a third person. Since a co-owner is entitled to sell his and should participate in the partition proceedings.
undivided share, a sale of the entire property by one co-
owner will only transfer the rights of said co-owner to the Suppose only A mortgaged the
buyer, thereby making the buyer a co-owner of the property to E and the same was
property. (Del Campo v. CA, 351 SCRA 1) annotated, but during the mortgage,
Suppose that it was only A who sold the the parties decided to partition the
whole property. The act was not property. What would happen in the
consented by the whole co-ownership, mortgage? What happens to the
what would happen? record?
The sale would be valid insofar as the shares of A is Under Art. 499:
concerned. Even if a co-owner sells the whole property as Article 499. The partition of a thing owned in common
his, the sale will affect his own share but not those of other shall not prejudice third persons, who shall retain the
co-owners who did not consent to the sale. (Bailon- rights of mortgage, servitude or any other real rights
Casilao vs. CA, 160 SCRA 738.) However, the transferee belonging to them before the division was made.
gets only what would correspond to his grantor in the Personal rights pertaining to third persons against the
partition of the thing owned in common (Ramirez v. co-ownership shall also remain in force,
notwithstanding the partition.
Bautista, 14 Phil. 528) Following the well-established
principle that the binding force of a contract must be The mortgage between A and E would remain. The
recognized as far as it is legally possible to do so - quando mortgage would be annotated only to the title of A once
res non valet ut ago, valeat quantum valere potest – the partition is effected.

PROPERTY
RECITS-NOTES-CASES
Now what if A, B, C, and D mortgaged fact that the record shows it to have been proved that H,
the property to E and it was annotated occupied for four years a room or a part of the lower floor
to the title, but during the mortgage, of the same house, requires that he pay A one half of the
monthly rent which the said quarters could have
the parties decided to partition the produced, had they been leased to another person.
property. What would happen in the
mortgage? This conclusion as to H’s liability results from the fact
that he had no right to occupy and use gratuitously the
The mortgage would remain. The mortgage in E’s favor said part of the lower floor of the house in question, where
still covers all the three lots, which together, formerly he lived with his wife, to the detriment of A who did not
constituted one single parcel. receive one-half of the rent which those quarters could
What are the rules on limitation on a co- and should have produced, had they been occupied by a
stranger, in the same manner that rent was obtained from
owner’s enjoyment of the property? the rooms on the lower floor that were used as stores.
Under Art. 486, each co-owner may use the thing owned (Pardell v. Bartolome)
in common.
 Note that had B occasioned any detriment to the
Provided: interest of the community property, or prevented A
from utilizing the said upper story according to her
1. The does so in accordance with the purpose for
rights, A could charge B for A was deprived from
which it is intended;
enjoying the thing owned in common.
2. That its use would be in such a way
a. as not to injure the interest of the co- What are the modes to extinguish co-
ownership; or ownership?
b. to prevent the other co-owners from
using it according to their rights. Co-ownership could be extinguished through:
The purpose of the co-ownership may be changed by (C-PaTALo)

agreement, express or implied. 1. By the Consolidation or merger in any one of the
Suppose that A and B are co-owners of a two co-owner of all the interests of the others;
2. By the Partition of the thing, whether judicial or
storey building. The upper floor is used as a
extrajudicial;
residential area. The lower floor is rented to 3. By Acquisitive prescription in favor of a third
tenants. Suppose that A went to the province, person or by a co-owner who repudiated the co-
and B married H. H cohabited with B and used ownership
the lower floor as office. Can A compel B to 4. By the Termination of the period agreed upon or
pay rent in the upper floor? How about in the imposed by law;
lower floor? 5. By the Loss of the thing co-owned;
A cannot compel B to pay rent for the use of the upper You say acquisitive prescription. How does a
floor. B and her husband occupied the upper floor co-owner acquire the property through
designed for use as a dwelling but the record shows no acquisitive prescription?
proof that, by so doing, B occasioned any detriment to the
As a general rule, one co-owner cannot acquire the whole
interest of the community property, nor that B prevented
property as against the other co-owners. (Coronel v. CA,
A from utilizing the said upper story according to her
205 SCRA 393 [1992]).
rights. It is to be noted that the stores of the lower floor
were rented and accounting of the rents was duly made to If, however, certain requirements are complied with, a co-
the plaintiffs. (Pardell v. Bartolome, 23 Phil 450 [1912]) owner can become the exclusive owner of the others’
shares by prescription. (Casañas v. Rosello, 50 Phil. 97)
On the lower floor, B should pay A the half of the value
of the rent for the use of the portion occupied by H as his These conditions are:
office.
1) He must make known to the other co-owners that
Notwithstanding the above statements relative to the he is definitely repudiating the co-ownership and
joint-ownership rights which entitled the defendants to that he is claiming complete ownership over the
live in the upper story of the said house, yet in view of the entire property’
PROPERTY
RECITS-NOTES-CASES
2) The evidence of repudiation and knowledge on  The period must not extend more than 10
the part of the others must be clear and years. (Art. 494). If it exceeds 10 years,
convincing. the stipulation is valid only insofar as the
3) The other requirements of prescription — open, first 10 years are concerned. There can be
peaceful, adverse, public occupation and an extension but only after the original
possession of the thing or right during the period period has expired. After the first
of time required under the law must be present. extension, there can be another, and so on
4) The period of prescription shall start to run only indefinitely, as long as for each
from such repudiation of co-ownership. (Paras) extension, the period of 10 years is not
exceeded. (Paras)
1 year of good faith = 3 years of bad faith.
2. When the partition is prohibited by the donor or
A and B are owners of a parcel of land. A lives testator for a period not exceeding 20 years.2 3
in the US. B tills the entire land for 30 years 3. When Partition is prohibited by law.
 Examples are: Party walls, family home,
without giving A’s share. A wants to partition
etc.
the property. B argues that A cannot partition 4. When Partition would render the thing
the property for B acquires ownership over unserviceable for the use which it is intended.
the property through prescription. As the  Note that this applies to physical division
judge, decide. of an indivisible thing. (ex. Partitioning
a live horse or a car)
I would rule in favor of A. B cannot claim prescription for
5. When another co-owner has possessed the
firstly, this is an instance of co-ownership and that the
property as exclusive owner and sufficient to
right to demand partition ordinarily does not prescribe.
acquire it by prescription.
Secondly, the acts of tilling and harvesting the entire land
do not constitute an act of repudiation for a co-owner is a Suppose that in a will, the testator prohibited
trustee of the other co-owners. And even if B repudiated the partition for 20 years. However, the heirs
the co-ownership, A has no knowledge about the acts of
B repudiating the same, thus prescription would not even
proceeded in dividing the same. Can of the
start to run. Thus B’s contention is wrong. heir later repudiate the partition?
No. If long before the expiration of the period all the heirs
You say partition. What are the rules mutually partitioned the property among themselves, one
governing partition? And what are the cannot question the validity of the partition for he is now
instances when partition is not allowed? prevented by estoppel from alleging its illegality. (Paras)
Partition is the division between two or more persons of What are the rules in perpendicular
real or personal property which they own in common so
that each may enjoy and possess his sole estate to the
ownership?
exclusion and interference of the others. (de Leon) There is “perpendicular co-ownership” where the
different stories of a building belong to different persons.
On the law that governs partition, the Civil Code shall be
the governing law then the rules of Court would apply Under Art. 490, the following rules govern:
suppletorily. (Paras)
 Each Co-owner is required to give a
Partition would not be allowed in the following instances: proportionate contribution for the preservation
of —
1. When the co-owners have agreed to keep the 1. the main walls;
thing undivided for a certain period of time, not 2. the party walls;
exceeding 10 years; 3. the roof; and
4. the other things used in common.
2Article 870. The dispositions of the testator declaring all or part of Even though forbidden by the testator, the co-ownership terminates
the estate inalienable for more than twenty years are void. when any of the causes for which partnership is dissolved takes place,
3
Article 1083. Every co-heir has a right to demand the division of the or when the court finds for compelling reasons that division should
estate unless the testator should have expressly forbidden its be ordered, upon petition of one of the co-heirs.
partition, in which case the period of indivision shall not exceed
twenty years as provided in article 494. This power of the testator to
prohibit division applies to the legitime.

PROPERTY
RECITS-NOTES-CASES
 Each floor owner must bear the expenses of his of a house on the co-owned property is an act of
floor. dominion. Therefore, it is an alteration falling under
 Stairs are to be maintained from story to story, Article 491 of the Civil Code. There being no consent
by the users. from all co-owners, respondent had no right to construct
her house on the co-owned property. Consent of only one
Cruz v. Catapang co-owner will not warrant the dismissal of the complaint
for forcible entry filed against the builder. The consent
Cruz v. Catapang given by Norma Maligaya in the absence of the consent
G.R. No. 164110; February 12, 2008; Second Division of petitioner and Luz Cruz did not vest upon respondent
J. Quisumbing any right to enter into the co-owned property. Her entry
into the property still falls under the classification through
Facts: Petitioner Leonor B. Cruz, Luz Cruz and Norma
strategy or stealth. Petiton granted.
Maligaya are the co-owners of a parcel of land covering
an area of 1,435 square meters located at Barangay
Victoria, et. al. v. Pidlaoan, et. al
Mahabang Ludlod, Taal, Batangas. With the consent of
Norma Maligaya, Catapang built a house intruding on a Victoria, et al. v. Pidlaoan et al.
portion of the property co-owned by the three. In the first G.R. No. 196470; April 20, 2016; Second Division
week of September 1995, petitioner Leonor B. Cruz J. Brion
visited the property and was surprised to see a part of
Facts: The petitioners Rosario Victoria (Rosario) and
respondents house intruding unto a portion of the co-
Elma lived together since 1978 until Rosario left for Saudi
owned property. She then made several demands upon
Arabia. In 1984, Elma bought a parcel of land with an area
respondent to demolish the intruding structure and to
of 201 square meters in Lucena City and was issued a
vacate the portion encroaching on their property. The
Transfer Certificate of Title (TCT). When Rosario came
respondent, however, refused and disregarded her
home, she caused the construction of a house on the lot
demands. Leonor filed a forcible entry case against
but she left again after the house was built. Elma allegedly
Catapang.
mortgaged the house and lot to a certain Thi Hong
Issue: Is the consent given by a co-owner of a parcel of Villanueva in 1989. When the properties were about to be
land to a person to construct a house on the co-owned foreclosed, Elma allegedly asked for help from her sister-
property warrants the dismissal of a forcible entry case in-law, Eufemia Pidlaoan (Eufemia), to redeem the
filed by another co-owner against that person? property. On her part, Eufemia called her daughter
abroad, Normita, to lend money to Elma. Normita agreed
Ruling: No. A co-owner cannot devote common property to provide the funds. Elma allegedly sought to sell the
to his or her exclusive use to the prejudice of the co- land. When she failed to find a buyer, she offered to sell
ownership. A co-owner cannot give valid consent to it to Eufemia or her daughter. On March 21, 1993, Elma
another to build a house on the co-owned property, which executed a deed of sale transferring the ownership of the
is an act tantamount to devoting the property to his or her lot to Normita. The last provision in the deed of sale
exclusive use. Article 486 states each co-owner may use provides that Elma shall eject the person who erected the
the thing owned in common provided he does so in house and deliver the lot to Normita. The document was
accordance with the purpose for which it is intended and signed by Elma, Normita, and two witnesses but it was
in such a way as not to injure the interest of the co- not notarized. When Elma and Normita were about to
ownership or prevent the other co-owners from using it have the document notarized, the notary public advised
according to their rights. Giving consent to a third person them to donate the lot instead to avoid capital gains tax.
to construct a house on the co-owned property will injure On the next day, Elma executed a deed of donation in
the interest of the co-ownership and prevent other co- Normita's favor and had it notarized. A new TCT was
owners from using the property in accordance with their issued in favor of Normita. Since then, Normita had been
rights. Under Article 491, none of the co-owners shall, paying the real property taxes over the lot but Elma
without the consent of the others, make alterations in the continued to occupy the house. Rosario found out about
thing owned in common. It necessarily follows that none the donation when she returned to the country a year or
of the co-owners can, without the consent of the other co- two after the transaction. In 1997, the petitioners filed a
owners, validly consent to the making of an alteration by complaint for reformation of contract, cancellation the
another person, such as respondent, in the thing owned in TCT, and damages with prayer for preliminary injunction
common. Alterations include any act of strict dominion or against Eufemia, Normita, and Herminigilda Pidlaoan
ownership and any encumbrance or disposition has been (respondents). The petitioners argued that: first, they co-
held implicitly to be an act of alteration. The construction owned the lot because both of them contributed the money
PROPERTY
RECITS-NOTES-CASES
used to purchase it; second, Elma and Normita entered NOTES ON CONDOMINIUM ACT
into an equitable mortgage because they intended to
Definitons.
constitute a mortgage over the lot to secure Elma's loan
but they executed a deed of sale instead; and third, the Condominum – is an interest in real property consisting
deed of donation was simulated because Elma executed it of separate interest in a unit in a residential,
upon the notary public's advice to avoid capital gains tax. industrial or commercial building and an
The RTC ruled that Rosario and Elma co-owned the lot undivided interest in common, directly or
and the house. The CA reversed the RTC's decision and indirectly, in the land on which it is located and
dismissed the petitioners' complaint. in other common areas of the building.
Issue: Is Rosario a co-owner? It may include, in addition, a separate interest in

other portions of such real property.
Ruling: No. In the present case, the records of the case
show that Elma alone purchased the lot in 1984 from its  Title to the common areas, may either be
previous owners. Accordingly, TCT No. T-50282 was held by the owners of the condominium
issued solely in her name. Thus, Normita bought the lot or by a condominium corporation in
relying on the face of the TCT that Elma and no other which the holders of separate interest
person owned it. It was held that registration under the shall automatically be members or
Torrens system does not create or vest title. A certificate shareholders, to the exclusion of others,
of title merely serves as an evidence of ownership in the in proportion to the appurtenant interest
property. Therefore, the issuance of a certificate of title of their respective units in the common
does not preclude the possibility that persons not named areas.
in the certificate may be co-owners of the real property,
Unit – is a part of the condominium project intended for
or that the registered owner is only holding the property
any type of independent use or ownership,
in trust for another person. However, the petitioners failed
including one or more rooms or spaces located in
to present proof of Rosario's contributions in purchasing
one or more floors (or part or parts of floors) in a
the lot from its previous owners. The execution of the
building or buildings and such accessories as may
transfer documents solely in Elma's name alone militate
be appended thereto.
against their claim of co-ownership. Thus, we find no
merit in the petitioners' claim of co-ownership over the Common areas – means the entire project excepting all
lot. units separately granted or held or reserved.
Mere construction of a house on another's land does not Rules on transfer of ownership in a
create a co-ownership. Article 484 of the Civil Code condominium.
provides that co-ownership exists when the ownership of
an undivided thing or right belongs to different persons. Any transfer or conveyance of a unit or an apartment,
Verily, a house and a lot are separately identifiable office or store or other space therein, shall include the
properties and can pertain to different owners, as in this transfer or conveyance of the undivided interests in the
case: the house belongs to Rosario and the lot to Elma. common areas or, in a proper case, the membership or
shareholdings in the condominium corporation.
Since Rosario's construction of a house on the lot did not
create a co-ownership, regardless of the value of the Provided
house. Rosario, however, is not without recourse in
 NOT CONDO CORP
retrieving the house or its value. The remedies available
o An owner can only transfer it to
to her are set forth in Article 448 of the Civil Code.
a Filipino or a corporation with
Petition partially granted. 60% Shares of stock owned by
Filipinos.
o Foreigners are not allowed to
acquire a unit except through
succession.
 CONDO CORP
o An owner can sell it to a Filipino
or a foreigner.
o PROVIDED that the ownership
of a condominium corporation

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RECITS-NOTES-CASES
would remain at least 60% Rules on Partiton/Voluntary Dissolution of
owned by Filipinos. Condo Corp
Incidents of a condominium grant, rights of a GENERAL RULE: The common areas shall remain
condominium owner. undivided, and there shall be no judicial partition thereof.
Sec. 6. Unless otherwise expressly provided in the EXCEPTION:
enabling or master deed or the declaration of
restrictions, the incidents of a condominium grant are Without Condo Corp
as follows: Instances of Partition:
(a) The boundary of the unit granted are the interior (a) That 3 years after damage or destruction to the
surfaces of the perimeter walls, floors, ceilings, project which renders material part thereof unit
windows and doors thereof. The following are not part for its use prior thereto, the project has not been
of the unit bearing walls, columns, floors, roofs, rebuilt or repaired substantially to its state prior
foundations and other common structural elements of to its damage or destruction, (3y Rule on
the building; lobbies, stairways, hallways, and other
Damage) or
areas of common use, elevator equipment and shafts,
central heating, central refrigeration and central air-
(b) That damage or destruction to the project has
conditioning equipment, reservoirs, tanks, pumps and rendered one-half or more of the units therein
other central services and facilities, pipes, ducts, flues, untenantable and that condominium owners
chutes, conduits, wires and other utility installations, holding in aggregate more than thirty percent
wherever located, except the outlets thereof when interest in the common areas are opposed to
located within the unit. repair or restoration of the project; (1/2 damage
and 30% opposition rule) or
(b) There shall pass with the unit, as an appurtenance
thereof, an exclusive easement for the use of the air (c) That the project has been in existence in excess of
space encompassed by the boundaries of the unit as it fifty years, that it is obsolete and uneconomic,
exists at any particular time and as the unit may and that condominium owners holding in
lawfully be altered or reconstructed from time to time. aggregate more than fifty percent interest in the
Such easement shall be automatically terminated in common areas are opposed to repair or
any air space upon destruction of the unit as to render restoration or remodeling or modernizing of the
it untenantable. project; (50 years and 50% opposition rule )or
(c) Unless otherwise, provided, the common areas are (d) That the project or a material part thereof has
held in common by the holders of units, in equal been condemned or expropriated and that the
shares, one for each unit. project is no longer viable, or that the
condominium owners holding in aggregate more
(d) A non-exclusive easement for ingress, egress and
than seventy percent interest in the common areas
support through the common areas is appurtenant to
are opposed to continuation of the condominium
each unit and the common areas are subject to such
easements. regime after expropriation or condemnation of a
material portion thereof; (Expropriation and 70%
(e) Each condominium owner shall have the exclusive opposition rule) or
right to paint, repaint, tile, wax, paper or otherwise (e) That the conditions for such partition by sale set
refinish and decorate the inner surfaces of the walls, forth in the declaration of restrictions, have been
ceilings, floors, windows and doors bounding his own
met. (Fulfilment of a resolutory condition
unit.
established under the declaration of restrictions)
(f) Each condominium owner shall have the exclusive
right to mortgage, pledge or encumber his Condominium Corp
condominium and to have the same appraised Instances of voluntary dissolution
independently of the other condominiums but any
(a) That three years after damage or destruction to
obligation incurred by such condominium owner is
personal to him.
the project in which the corporation owns or
holds the common areas, which damage or
(g) Each condominium owner has also the absolute destruction renders a material part thereof unfit
right to sell or dispose of his condominium unless the for its use prior thereto, the project has not been
master deed contains a requirement that the property rebuilt or repaired substantially to its state prior
be first offered to the condominium owners within a
to its damage or destruction (3y Rule on
reasonable period of time before the same is offered to
Damage); or
outside parties;

PROPERTY
RECITS-NOTES-CASES
(b) That damage or destruction to the project has Membership in a condominium corporation, regardless of
rendered one-half or more of the units therein whether it is a stock or non-stock corporation, shall not be
untenantable and that more than thirty percent of transferable separately from the condominium unit of which it
the members of the corporation, if non-stock, or is an appurtenance. When a member or stockholder ceases to
own a unit in the project in which the condominium corporation
the shareholders representing more than thirty
owns or holds the common areas, he shall automatically cease
percent of the capital stock entitled to vote, if a to be a member or stockholder of the condominium corporation.
stock corporation, are opposed to the repair or
reconstruction of the project, (1/2 damage and The term of a condominium corporation – up to 50 years.
30% opposition rule) or
(c) That the project has been in existence in excess of In case of involuntary dissolution of a Condo
fifty years, that it is obsolete and uneconomical, Corp
and that more than fifty percent of the members Sec. 12. In case of involuntary dissolution of a condominium
of the corporation, if non-stock, or the corporation for any of the causes provided by law, the common
stockholders representing more than fifty percent areas owned or held by the corporation shall, by way of
of the capital stock entitled to vote, if a stock liquidation, be transferred pro-indiviso and in proportion to
corporation, are opposed to the repair or their interest in the corporation to the members or stockholders
restoration or remodeling or modernizing of the thereof, subject to the superior rights of the corporation
project; (50 years and 50% opposition rule ) or creditors. Such transfer or conveyance shall be deemed to be a
(d) That the project or a material part thereof has full liquidation of the interest of such members or stockholders
been condemned or expropriated and that the in the corporation. After such transfer or conveyance, the
provisions of this Act governing undivided co-ownership of, or
project is no longer viable, or that the members
undivided interest in, the common areas in condominium
holding in aggregate more than seventy percent projects shall fully apply.
interest in the corporation, if non-stock, or the
stockholders representing more than seventy Declaration of Restrictions
percent of the capital stock entitled to vote, if a
Sec. 9. The owner of a project shall, prior to the conveyance of
stock corporation, are opposed to the any condominium therein, register a declaration of restrictions
continuation of the condominium regime after relating to such project, which restrictions shall constitute a lien
expropriation or condemnation of a material upon each condominium in the project, and shall insure to and
portion thereof; (Expropriation and 70% bind all condominium owners in the project. Such liens, unless
opposition rule) or otherwise provided, may be enforced by any condominium
(e) That the conditions for such a dissolution set forth owner in the project or by the management body of such project.
in the declaration of restrictions of the project in The Register of Deeds shall enter and annotate the declaration
which the corporation owns of holds the common of restrictions upon the certificate of title covering the land
areas, have been met. (Fulfilment of a resolutory included within the project, if the land is patented or registered
under the Land Registration or Cadastral Acts.
condition established under the declaration of
restrictions) The declaration of restrictions shall provide for the
(f) The condominium corporation may also be management of the project by anyone of the following
dissolved by the affirmative vote of all the management bodies: condominium corporation, an association
stockholders or members thereof at a general or of the condominium owners, a board of governors elected by
special meeting duly called for the purpose (Sec. condominium owners, or a management agent elected by the
owners or by the board named in the declaration. It shall also
14)
provide for voting majorities quorums, notices, meeting date,
and other rules governing such body or bodies.
Condominium Corp
Sec. 10. Whenever the common areas in a condominium project
are held by a condominium corporation, such corporation shall Powers and limitations of a Condo Corp
constitute the management body of the project. The corporate Unless otherwise provided for in the declaration of restrictions
purposes of such a corporation shall be limited to the holding upon voluntary dissolution of a condominium corporation in
of the common areas, either in ownership or any other interest accordance with the provisions of Sections thirteen and
in real property recognized by law, to the management of the fourteen:
project, and to such other purposes as may be necessary,
incidental or convenient to the accomplishment of said
purposes. The articles of incorporation or by-laws of the 1. It shall have power of attorney from all the members
corporation shall not contain any provision contrary to or or stockholders to sell and dispose of their separate
inconsistent with the provisions of this Act, the enabling or interests in the project and liquidation of the
master deed, or the declaration of restrictions of the project. corporation shall be effected by a sale of the entire
PROPERTY
RECITS-NOTES-CASES
project as if the corporation owned the whole thereof, EXPLOITATION, DEVELOPMENT,
subject to the rights of the corporate and of individual CONSERVATION AND PROTECTION OF
condominium creditors; WATER RESOURCES
2. The management body may acquire and hold, for the
benefit of the condominium owners, tangible and WHEREAS, Article XIV, Section 8 of the New
intangible personal property and may dispose of the Constitution of the Philippines provides, inter alia, that all
same by sale or otherwise; and the beneficial interest waters of the Philippines belong to the State;
in such personal property shall be owned by the
condominium owners in the same proportion as their WHEREAS, existing water legislations are piece-meal
respective interests in the common areas. A transfer of and inadequate to cope with increasing scarcity of water
a condominium shall transfer to the transferee and changing patterns of water use;
ownership of the transferor's beneficial interest in such
personal property. WHEREAS, there is a need for a Water Code based on
3. It cannot, during its existence, sell, exchange, lease or rational concepts or integrated and multipurpose
otherwise dispose of the common areas owned or held management of water resources and sufficiently flexible
by it in the condominium project unless authorized by to adequately meet future developments;
the affirmative vote of all the stockholders or members
WHEREAS, water is vital to national development and it
has become increasingly necessary for government to
Demand payment of the shares: intervene actively in improving the management of water
The by-laws of a condominium corporation shall provide resources;
that a stockholder or member shall not be entitled to NOW, THEREFORE, I, FERDINAND E. MARCOS,
demand payment of his shares or interest unless he President of the Philippines, by virtue of the powers in me
consents to sell his separate interest in the project to the vested by the Constitution, do hereby order and decree the
corporation or to any purchaser of the corporation's choice enactment of the water Code of the Philippines of 1976,
who shall also buy from the corporation the dissenting as follows:
member or stockholder's interest.
CHAPTER I
In case of disagreement as to price, the procedure set forth DECLARATION OF OBJECTIVES AND
in the appropriate provision of the Corporation Law for PRINCIPLES
valuation of shares shall be followed. The corporation
shall have two years within which to pay for the shares or Article 1. This Code shall be known as The Water Code
furnish a purchaser of its choice from the time of award. of the Philippines.
All expenses incurred in the liquidation of the interest of
Article 2. The objectives of this Code are:
the dissenting member or stockholder shall be borne by
him. (a) To establish the basic principles and framework
relating to the appropriation, control and conservation of
water resources to achieve the optimum development and
rational utilization of these resources;
(b) To define the extent of the rights and obligations of
water users and owners including the protection and
regulation of such rights;
TITLE IV. – SOME SPECIAL (c) To adopt a basic law governing the ownership,
appropriation, utilization, exploitation, development,
PROPERTIES conservation and protection of water resources and rights
to land related thereto; and
WATER CODE OF THE PHILIPPINES (d) To identify the administrative agencies which will
PRESIDENTIAL DECREE No. 1067 December 31, enforce this Code.
1976 Article 3. The underlying principles of this code are:
A DECREE INSTITUTING A WATER CODE, (a) All waters belong to the State.
THEREBY REVISING AND CONSOLIDATING
THE LAWS GOVERNING THE OWNERSHIP, (b) All waters that belong to the State can not be the
APPROPRIATION, UTILIZATION, subject to acquisitive prescription.

PROPERTY
RECITS-NOTES-CASES
(c) The State may allow the use or development of waters Article 7. Subject to the provisions of this Code, any
by administrative concession. person who captures or collects water by means of
cisterns, tanks, or pools shall have exclusive control over
(d) The utilization, exploitation, development,
such water and the right to dispose of the same.
conservation and protection of water resources shall be
subject to the control and regulation of the government Article 8. Water legally appropriated shall be subject to
through the National Water Resources Council, the control of the appropriator from the moment it reaches
hereinafter referred to as the Council. the appropriator's canal or aqueduct leading to the place
where the water will be used or stored and, thereafter, so
(e) Preference in the use and development of waters shall
long as it is being beneficially used for the purposes for
consider current usages and be responsive to the changing
which it was appropriated.
needs of the country.
CHAPTER III
Article 4. Waters, as used in this Code, refers to water
APPROPRIATION OF WATERS
under the grounds, water above the ground, water in the
atmosphere and the waters of the sea within the territorial Article 9. Waters may be appropriated and used in
jurisdiction of the Philippines. accordance with the provisions of this Code.
CHAPTER II Appropriation of water, as used in this Code, is the
OWNERSHIP OF WATERS acquisition of rights over the use of waters or the taking
or diverting of waters from a natural source in the manner
Article 5. The following belong to the State:
and for any purpose allowed by law.
(a) Rivers and their natural beds;
Article 10. Water may be appropriated for the following
(b) Continuous or intermittent waters of springs and purposes:
brooks running in their natural beds and the beds
(a) Domestic
themselves;
(b) Municipal
(c) Natural lakes and lagoons;
(c) Irrigation
(d) All other categories of surface waters such as water
flowing over lands, water from rainfall whether natural, (d) Power generation
or artificial, and water from agriculture runoff, seepage
(e) Fisheries
and drainage;
(f) Livestock raising
(e) Atmospheric water;
(g) Industrial
(f) Subterranean or ground waters; and,
(h) Recreational, and
(g) Seawater.
(i) Other purposes
Article 6. The following waters found on private lands
belong to the State: Use of water for domestic purposes is the utilization of
water for drinking, washing, bathing, cooking or other
(a) Continuous or intermittent waters rising on such lands;
household needs, home gardens, and watering of lawns or
(b) Lakes and lagoons naturally occuring on such lands; domestic animals.
(c) Rain water falling on such lands; Use of water for municipal purposes is the utilization of
water for supplying the water requirements of the
(d) Subterranean or ground waters; and,
community.
(e) Water in swamps and marshes.
Use of water for irrigation is the utilization of water for
The owner of the land where the water is found may use producing agricultural crops.
the same for domestic purposes without securing a permit,
Use of water for power generation is the utilization of
provided that such use shall be registered, when required
water for producing electrical or mechanical power.
by the Council. The Council, however, may regulate such
when there is wastage, or in times of emergency. Use of water for fisheries is the utilization of water for the
propagation and culture of fish as a commercial
enterprise.
PROPERTY
RECITS-NOTES-CASES
Use of water for livestock raising is the utilization of any; prior permits granted; the availability of water; the
water for large herds or flocks of animals raised as a water supply needed for beneficial use; possible adverse
commercial enterprise. effects; land-use economics; and other relevant factors.
Use of water for industrial purposes is the utilization of Upon approval of an application, a water permit shall be
water in factories, industrial plants and mines, including issued and recorded.
the use of water as an ingredient of a finished product.
Article 17. The right to the use of water is deemed
Use of water for recreational purposes is the utilization of acquired as of the date of filing of the application for a
water for swimming pools, bath houses, boating, water water permit in case of approved permits, or as of the date
skiing, golf courses and other similar facilities in resorts of actual use in a case where no permit is required.
and other places of recreation.
Article 18. All water permits granted shall be subject to
Article 11. The State, for reasons of public policy, may conditions of beneficial use, adequate standards of design
declare waters not previously appropriated, in whole or in and construction, and such other terms and conditions as
part, exempt from appropriation for any or all purposes may be imposed by the Council.
and, thereupon, such waters may not be appropriated for
Such permits shall specify the maximum amount of water
those purposes.
which may be diverted or withdrawn, the maximum rate
Article 12. Waters appropriated for a particular purpose of diversion or withdrawal, the time or times during the
may be applied for another purpose only upon prior year when water may be diverted or withdrawn, the points
approval of the Council and on condition that the new use or points of diversion or location of wells, the place of
does not unduly prejudice the rights of other permittees, use, the purposes of which water may be used and such
or require an increase in the volume of water. other requirements the Council deems desirable.
Article 13. Except as otherwise herein provided, no Article 19. Water rights may be leaded or transferred in
person, including government instrumentalities or whole or in part to another person with prior approval of
government-owned or controlled corporations, shall the Council, after due notice and hearing.
appropriate water without a water right, which shall be
Article 20. The measure and limit of appropriation of
evidenced by a document known as a water permit.
water shall be beneficial use.
Water right is the privilege granted by the government to
Beneficial use of water is the utilization of water in the
appropriate and use water.
right amount during the period that the water is needed for
Article 14. Subject to the provisions of this Code producing the benefits for which the water is
concerning the control, protection, conservation, and appropriated.
regulation of the appropriation and use of waters, any
Article 21. Standards of beneficial use shall be prescribed
person may appropriate or use natural bodies of water
by the council for the appropriator of water for different
without securing a water permit for any of the following:
purposes and conditions, and the use of waters which are
(a) Appropriation of water by means of handcarried appropriated shall be measured and controlled in
receptacles; and accordance therewith.
(b) Bathing or washing, watering or dipping of domestic Excepting for domestic use, every appropriator of water
or farm animals, and navigation of watercrafts or shall maintain water control and measuring devices, and
transportation of logs and other objects by flotation. keep records of water withdrawal. When required by the
Council, all appropriators of water shall furnish
Article 15. Only citizens of the Philippines, of legal age,
information on water use.
as well as juridical persons, who are duly qualified by law
to exploit and develop water resources, may apply for Article 22. Between two or more appropriators of water
water permits. from the same sources of supply, priority in time of
appropriation shall give the better right, except that in
Article 16. Any person who desires to obtain a water
times of emergency the use of water for domestic and
permit shall file an application with the Council who shall
municipal purposes shall have a better right over all other
make known said application to the public for any
uses; Provided, the where water shortage is recurrent and
protests.
the appropriator for municipal use has a lower priority in
In determining whether to grant or deny an application, time of appropriation, then it shall be his duty to find an
the Council shall consider the following: protests filed, if
PROPERTY
RECITS-NOTES-CASES
alternative source of supply in accordance with conditions nuisance or acts detrimental to public health and safety;
prescribed by the Council. when the appropriator is found to be disqualified under
the law to exploit and develop natural resources of the
Article 23. Priorities may be altered on grounds of greater
Philippines; when, in the case, of irrigation, the land is
beneficial use, multi-purpose use, and other similar
converted to non-agricultural purposes; and other similar
grounds after due notice and hearing, subject to payment
grounds.
of compensation is proper cases.
Article 30. All water permits are subject to modification
Article 24. A water right shall be exercised in such a
or cancellation by the council, after due notice and
manner that the rights of third persons or of other
hearing, in favor of a project of greater beneficial use or
appropriators are not prejudiced thereby.
for multi-purpose development, and a water permittee
Article 25. A holder of water permit may demand the who suffers thereby shall be duly compensated by the
establishment of easements necessary for the construction entity or person in whose favor the cancellation was
and maintenance of the works and facilities needed for the made.
beneficial use of the waters to be appropriated subject to
CHAPTER IV
the requirements of just compensation and to the
UTILIZATION OF WATERS
following conditions:
Article 31. Preference in the development of water
(a) That he is the owner, lessee, mortgagee or one having
resources shall consider security of the State, multiple
real right over the land upon which he proposes to use
use, beneficial effects, adverse effects and costs of
water; and
development.
(b) That the proposed easement is the most convenient
Article 32. The utilization of subterranean or ground
and the least onerous to the servient estate.
water shall be coordinated with that of surface waters such
Easements relating to the appropriation and use of waters as rivers, streams, springs and lakes, so that a superior
may be modified by agreement of the contracting parties right in one not adversely affected by an inferior right in
provided the same is not contrary to law or prejudicial to the other.
third persons.
For this purpose the Council shall promulgate rules and
Article 26. Where water shortage is recurrent, the use of regulations and declare the existence of control areas for
the water pursuant to a permit may, in the interest of the coordinated development, protection, and utilization
equitable distribution of the benefits among legal of subterranean or ground water and surface waters.
appropriators, reduce after due notice and hearing.
Control area is an area of land where subterranean or
Article 27. Water users shall bear the diminution of any ground water and surface water are so interrelated that
water supply due to natural causes or force majeure. withdrawal and use in one similarly affects the other. The
boundary of a control area may be altered from time to
Article 28. Water permits shall continue to be valid as time, as circumstances warrant.
long as water is beneficially used; however, it maybe
suspended on the grounds of non-compliance with Article 33. Water contained in open canals, aqueducts or
approved plans and specifications or schedules of water reservoirs of private persons may be used by any person
distribution; use of water for a purpose other than that for for domestic purpose or for watering plants as long as the
which it was granted; non-payment of water charges; water is withdrawn by manual methods without checking
wastage; failure to keep records of water diversion, when the stream or damaging the canal, aqueduct or reservoir;
required; and violation of any term or condition of any Provided, That this right may be restricted by the owner
permit or rules and regulations promulgated by the should it result in loss or injury to him.
Council.
Article 34. A water permittee or appropriator may use any
Temporary permits may be issued for the appropriation watercourse to convey water to another point in the
and use of water for short periods under special watercourse for the purpose stated in a permit and such
circumstances. water may be diverted or recaptured at that point by said
permittee in the same amount less allowance for normal
Article 29. Water permits may be revoked after due losses in transit.
notice and hearing on grounds of non-use; gross violation
of the conditions imposed in the permit; unauthorized sale Article 35. Works for the storage, diversion, distribution
of water; willful failure or refusal to comply with rules and utilization of water resources shall contain adequate
and regulations of any lawful order; pollution, public provision for the prevention and control of diseases that
PROPERTY
RECITS-NOTES-CASES
may be induced or spread by such works when required water, or such other water course as may be approved by
by the Council. the proper government agency.
Article 36. When the reuse of waste water is feasible, it Article 45. When a drainage channel is constructed by a
shall be limited as much as possible, to such uses other number of persons for their common benefit, the cost of
than direct human consumption. No person or agency construction and maintenance of the channel shall be
shall distribute such water for public consumption until it borne by each in proportion to the benefits drived.
is demonstrated that such consumption will not adversely
Article 46. When artificial means are employed to drain
affect the health and safety of the public.
water from higher to lower land, the owner of the higher
Article 37. In the construction and operation of hydraulic land shall select the routes and methods of drainage that
works, due consideration shall be given to the will cause the minimum damage to the lower lands,
preservation of scenic places and historical relics and, in subject to the requirements of just compensation.
addition to the provisions of existing laws, no works that
Article 47. When the use, conveyance or storage of
would required the destruction or removal of such places
waters results in damage to another, the person
or relics shall be undertaken without showing that the
responsible for the damage shall pay compensation.
distribution or removal is necessary and unaviodable.
Article 48. When a water resources project interferes with
Article 38. Authority for the construction of dams,
the access of landowner to a portion of his property or
bridges and other structures across of which may interfere
with the conveyance of irrigation or drainage water, the
with the flow of navigable or flotable waterways shall first
person or agency constructing the project shall bear the
be secured from the Department of Public Works,
cost of construction and maintenance of the bridges,
Transportation and Communications.
flumes and other structures necessary for maintaining
Article 39. Except in cases of emergency to save life or access, irrigation, or drainage, in addition to paying
property, the construction or repair of the following works compensation for land and incidental damages.
shall be undertaken only after the plans and specifications
Article 49. Any person having an easement for an
therefor, as may be required by the Council, are approved
aqueduct may enter upon the servient land for the purpose
by the proper government agency; dams for the diversion
of cleaning, repairing or replacing the aqueduct or the
or storage of water; structures for the use of water power,
removal of obstructions therefrom.
installations for the utilization of subterranean or ground
water and other structures for utilization of water Article 50. Lower estates are obliged to receive the waters
resources. which naturally and without the intervention of man flow
from the higher estate, as well as the stone or earth which
Article 40. No excavation for the purpose of emission of
they carry with them.
a hot spring or for the enlargement of the existing opening
thereof shall be made without prior permit. The owner of the lower estate can not construct works
which will impede this natural flow, unless he provides an
Any person or agency who intends to develop a hot spring
alternative method of drainage; neither can the owner of
for human consumption must first obtain a permit from
the higher estate make works which will increase this
the Department of Health.
natural flow.
Article 41. No person shall develop a stream, lake, or
Article 51. The banks of rivers and streams and the shores
spring for recreational purposes without first securing a
of the seas and lakes throughout their entire length and
permit from the Council.
within a zone of three (3) meters in urban areas, twenty
Article 42. Unless-otherwise ordered by the President of (20) meters in agricultural areas and forty (40) meters in
the Philippines and only in time of national calamity or forest areas, along their margins are subject to the
emergency, no person shall induce or restrain rainfall by easement of public use in the interest of recreation,
any method such as cloud seeding without a permit from navigation, floatage, fishing and salvage. No person shall
the proper government emergency. be allowed to stay in this zone longer than what is
necessary for recreation, navigation, floatage, fishing or
Article 43. No person shall raise or lower the water level
salvage or to build structures of any kind.
of a river stream, lake, lagoon, or marsh nor drain the
same without a permit. Article 52. The establishment, extent, form, and
conditions of easements of water not expressly
Article 44. Drainage systems shall be so constructed that
determined by the provisions of this Code shall be
their outlets are rivers, lakes, the sea, natural bodies of
governed by the provisions of the Civil Code.
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RECITS-NOTES-CASES
CHAPTER V Article 59. Rivers, lakes and lagoons may, upon the
CONTROL OF WATERS recommendation of the Philippines Coast Guard, be
declared navigable either in whole or in part.
Article 53. To promote the best interest and the
coordinated protection of flood plain lands, the Secretary Article 60. The rafting of logs and other objects on rivers
of Public Works, Transportation and Communications and lakes which are flotable may be controlled or
may declare flood control areas and promulgate prohibited during designated season of the year with due
guidelines for governing flood plain management plans in regard to the needs of irrigation and domestic water
these areas. supply and other uses of water.
Article 54. In declared flood control areas, rules and Article 61. The impounding of water in ponds or
regulations may be promulgated to prohibit or control reservoirs may be prohibited by the Council upon
activities that may damage or cause deterioration or lakes consultation with the Department of Health if it is
and dikes, obstruct the flow of water, change the natural dangerous to public health, or it may order that such pond
flow of the river, increase flood losses or aggravate flood or reservoir be drained if such is necessary for the
problems. protection of public health.
Article 55. The government may construct necessary Article 62. Waters of a stream may be stored in a
flood control structures in declared flood control areas, reservoir by a permittee in such amount as will not
and for this purpose it shall have a legal easement as wide prejudice the right of any permittee downstream.
as may be needed along and adjacent to the river bank and Whoever operates the reservoir shall, when required,
outside of the bed or channel of the river. release water for minimum stream flow.
Article 56. River beds, sand bars and tidal flats may not All reservoir operations shall be subject to rules and
be cultivated except upon prior permission from the regulations issued by the Council or any proper
Secretary of the Department of Public Works, government agency.
Transportation and Communication and such permission
Article 63. The operator of a dam for the storage of water
shall not be granted where such cultivation obstructs the
may be required to employ an engineer possessing
flow of water or increase flood levels so as to cause
qualifications prescribed for the proper operations,
damage to other areas.
maintenance and administration of the dam.
Article 57. Any person may erect levees or revetments to
Article 64. The Council shall approve the manner,
protect his property from flood, encroachment by the river
location, depth, and spacing in which borings for
or change in the course of the river, provided that such
subterranean or ground water may be made, determine the
constructions does not cause damage to the property of
requirements for the registration of every boring or
another.
alteration to existing borings as well as other control
Article 58. When a river or stream suddenly changes its measures for the exploitation of subterranean or ground
course to traverse private lands, the owners of the affected water resources, and in coordination with the Professional
lands may not compel the government to restore the river Regulation Commission prescribe the qualifications of
to its former bed; nor can they restrain the government those who would drill such borings.
from taking steps to revert the river or stream to its former
No person shall drill a well without prior permission from
course. The owners of the land thus affected are not
the Council.
entitled to compensation for any damage sustained
thereby. However, the former owners of the new bed shall Article 65. Water from one river basin may be transferred
be the owners of the abandoned bed in proportion to the to another river basin only with approval of the Council.
area lost by each. In considering any request for such transfer, the Council
shall take into account the full costs of the transfer, the
The owners of the affected lands may undertake to return
benefits that would accrue to the basin of origin without
the river or stream to its old bed at their own expense;
the transfer, the benefits would accrue to the receiving
Provided, That a permit therefor is secured from the
basin on account of the transfer, alternative schemes for
Secretary of Public Works, Transportation and
supplying water to the receiving basin, and other relevant
Communication and work pertaining thereto are
factors.
commenced within two years from the change in the
course of the river or stream. CHAPTER VI
CONSERVATION AND PROTECTION OF

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RECITS-NOTES-CASES
WATERS AND WATERSHEDS AND RELATED programs to insure that fish and wildlife values receive
LAND RESOURCES equal attention with other project purposes.
Article 66. After due notice and hearing when warranted Article 74. Swamps and marshes which are owned by the
by circumstances, minimum stream flows for rivers and State and which primary value for waterfowl propagation
streams, and minimum water levels for lakes may be or other wildlife purposes may be reserved and protected
established by the Council under such conditions as may from drainage operation and development.
be necessary for the protection of the environment,
Article 75. No person shall, without prior permission
control of pollution, navigation, prevention of salt
from the National Pollution Control Commission, build
damage, and general public use.
any works that may produce dangerous or noxious
Article 67. Any watershed or any area of land adjacent to substances or perform any act which may result in the
any surface water or overlying any ground water may introduction of sewage, industrial waste, or any pollutant
declared by the Department of Natural Resources as into any source of water supply.
protected area Rules and regulations may be promulgated
Water pollution is the impairment of the quality of water
by such Department to prohibit or control such activities
beyond a certain standard. This standard may vary
by the owners or occupants thereof within the protected
according to the use of the water and shall be set by the
area which may damage or cause the deterioration of the
National Pollution Control Commission.
surface water or ground water or interfere with the
investigation, use, control, protection, management or Article 76. The establishment of cemeteries and waste
administration of such waters. disposal areas that may affect the source of a water supply
or a reservoir for domestic or municipal use shall be
Article 68. It shall be the duty of any person in control of
subject to the rules and regulations promulgated by the
a well to prevent the water from flowing on the surface of
Department of Health.
the land, or into any surface water, or any porous stratum
under neath the surface without being beneficially used. Article 77. Tailings from mining operations and
sediments from placer mining shall not be dumped into
Article 69. It shall be the duty of any person in control of
rivers and waterways without prior permission from the
a well containing water with minerals or other substances
Council upon recommendation by the National Pollution
injurious to man, animals, agriculture, and vegetation to
Control Commission.
prevent such waters from flowing on the surface of the
land or into any surface water or into any other aquifer or Article 78. The application of agricultural fertilizers and
porous stratum. pesticides may be prohibited or regulated by the National
Pollution Control Commission in the areas where such
Article 70. No person shall utilize an existing well or
application may cause pollution of a source of water
pond or spread waters for recharging substerranean or
supply.
ground water supplies without prior permission of the
Council. CHAPTER VII
ADMINISTRATION OF WATERS AND
Article 71. To promote better water conservation and
ENFORCEMENT OF THE PROVISIONS OF THIS
usage for irrigation purposes, the merger of irrigation
CODE
associations and the appropriation of waters by
associations instead of by individuals shall be Article 79. The Administration and enforcement of the
encouraged. provisions of this Code, including the granting of permits
and the imposition of penalties for administrative
No water permit shall be granted to an individual when
violations hereof, are hereby vested in the Council, and
his water requirement can be supplied through an
except in regard to those functions which under this Code
irrigation association.
are specifically conferred upon other agencies of the
Article 72. In the consideration of a proposed water government, the Council is hereby empowered to make
resource project, due regard shall be given to ecological all decisions and determinations provided for in this
changes resulting from the construction of the project in Code.
order to balance the needs of development and the
Article 80. The Council may deputize any official or
protection of the environment.
agency of the government to perform any of its specific
Article 73. The conservation of fish and wildlife shall functions or activities.
receive proper consideration and shall be coordinated
with other features of water resources development
PROPERTY
RECITS-NOTES-CASES
Article 81. The Council shall provide a continuing thereof by reason of defect in plans and specifications, or
program for data collection, research and manpower failure due to defect in construction, within ten (10) years
development needed for the appropriation, utilization, from the completion of the structure.
exploitation, conservation, and protection of the water
Any action recover such damages must be brought within
resources of the country.
five (5) years following such failure.
Article 82. In the implementation of the provisions of this
Article 87. The Council or its duly authorized
code, the Council shall promulgate the necessary rules
representatives, in the exercise of its power to investigate
and regulations which may provide for penalties
and decide cases brought to its cognizance, shall have the
consisting of a fine not exceeding One Thousand Pesos
power to administer oaths, compel the attendance of
(P1,000.00) and/or suspension or revocation of the water
witnesses by subpoena and the production of relevant
permit or other right to the use of water. Violations of
documents by subpoena duces tecum.
such rules and regulations may be administratively dealt
with by the Council. Non-compliance of violation of such orders or subpoena
and subpoena duces tecum shall be punished in the same
Such rules and regulations prescribed by any government
manner as indirect contempt of an inferior court upon
agency that pertain to the utilization, exploitation,
application by the aggrieved party with the proper Court
development, control, conservation, or protection of
of First Instance in accordance with the provisions of
water resources shall, if the Council so requires, be
Rules 71 of the Rules of the Court.
subject to its approval.
Article 88. The Council shall have original jurisdiction
Article 83. The Council is hereby authorized to impose
over all disputes to relating to appropriation, utilization,
and collect reasonable fees or charges for water resources
exploitation, development, control, conservation and
development from water appropriators, except when it is
protection of waters within the meaning and context of the
for purely domestic purposes.
provisions of this Code.
Article 84. The Council and other agencies authorized to
The decisions of the Council on water rights controversies
enforce this Code are empowered to enter upon private
shall be immediately executory and the enforcement
lands, with previous notice to the owner, for the purpose
thereof may be suspended only when a bond, in a amount
of conducting surveys and hydrologic investigations, and
fixed by the Council to answer for damages occasioned
to perform such other acts as are necessary in carrying out
by the suspension or stay of execution, shall have been
their functions including the power to exercise the right of
filed by the appealing party, unless the suspension is
eminent domain.
virtue of an order of a competent court.
Article 85. No program or project involving the
All dispute shall be decided within sixty (60) days after
appropriation, utilization, exploitation, development,
the parties submit the same for decision or resolution.
control, conservation, or protection of water resources
may be undertaken without prior approval of the Council, The Council shall have the power to issue writs of
except those which the Council may, in its discretion, execution and enforce its decisions with the assistance of
exempt. local or national police agencies.
The Council may require consultation with the public Article 89. The decisions of the Council on water rights
prior to the implementation of certain water resources controversies may be appealed to the Court of First
development projects. Instance of the province where the subject matter of the
controversy is situated within fifteen (15) days from the
Article 86. When plans and specifications of a hydraulic
date the party appealing receives a copy of the decision,
structure are submitted for approval, the government
on any of the following grounds; (1) grave abuse of
agency whose functions embrace the type of project for
discretion; (2) question of law; and (3) questions of fact
which the structure is intended, shall review the plans and
and law.
specifications and recommended to the Council proper
action thereon and the latter shall approve the same only CHAPTER VIII
when they are inconformity with the requirements of this PENAL PROVISIONS
Code and the rules and regulations promulgated by the
Council. Notwithstanding such approval, neither the Article 90. The following acts shall be penalized by
engineer who drew up the plans and specifications of the suspension or revocation of the violator's water permit or
hydraulic structure, nor the constructor who built it, shall other right to the use of water and/or a fine of not
be relieved of his liability for damages in case of failure
PROPERTY
RECITS-NOTES-CASES
exceeding One Thousand Pesos (P1,000.00), in the 3. Cultivation of a river bed, sand bar or tidal flat without
discretion of the Council: permission.
(a)Appropriation of subterranean or ground water for 4. Malicious destruction of hydraulic works or structure
domestic use by an overlying landowner without valued at not exceeding Twenty-Five Thousand Pesos
registration required by the Council. (P25,000.00).
(b) Non-observance of any standard of beneficial use of B. A fine exceeding Three Thousand Pesos P3,000.00)
water. but not more than Six Thousand Pesos P6,000.00) or
imprisonment exceeding three (3) years but not more than
(c) Failure of the appropriator to keep a record of water
six (6) years, or both such fine and imprisonment in the
withdrawal, when required.
discretion of the Court, shall be imposed on any person
(d) Failure to comply with any of the terms or conditions who commits any of the following acts:
in a water permit or a water rights grant.
1. Distribution for public consumption of water which
(e) Unauthorized use of water for a purpose other than that adversely affects the health and safety of the public.
for which a right or permit was granted.
2. Excavation or enlargement of the opening of a hot
(f) Construction or repair of any hydraulic work or spring without permission.
structure without duly approved plans and specifications,
3. Unauthorized obstruction of a river or waterway, or
when required.
occupancy of a river bank or seashore without permission.
(g) Failure to install a regulating and measuring device for
4. Establishment of a cemetery or a waste disposal area
the control of the volume of water appropriated, when
near a source of water supply or reservoir for domestic
required.
municipal use without permission.
(h) Unauthorized sale, lease, or transfer of water and/or
5. Constructing, without prior permission of the
water rights.
government agency concerned, works that produce
(i) Failure to provide adequate facilities to prevent or dangerous or noxious substances, or performing acts that
control diseases when required by the Council in the result in the introduction of sewage, industrial waste, or
construction of any work for the storage, diversion, any substance that pollutes a source of water supply.
distribution and utilization of water.
6. Dumping mine tailings and sediments into rivers of
(j) Drilling of a well without permission of the Council. waterways without permission.
(k) Utilization of an existing well or ponding or spreading 7. Malicious destruction of hydraulic works or structure
of water for recharging subterranean or ground water valued more than Twenty-Five Thousand Pesos
supplies without permission of the Council. (P25,000.00) but at not exceeding One Hundred
Thousand Peso (100,000.00).
(l) Violation of or non-compliance with any order, rules,
or regulations of the Council. C. A fine exceeding Six Thousand Pesos (P6,000.00) but
not more than Ten Thousand Pesos (P10,000.00) or
(m) Illegal taking or diversion of water in an open canal, imprisonment exceeding six (6) years but not more than
aqueduct or reservoir. twelve (12) years, or both such fine and imprisonment, in
(n) Malicious destruction of hydraulic works or structure the discretion of the Court, shall be imposed upon any
valued at not exceeding P5,000.00. person who commits any of the following acts:
Article 91. A. A fine of not exceeding Three Thousand 1. Misrepresentation of citizenship in order to qualify for
Pesos (P3,000.00) or imprisonment for not more than water permit.
three (3) years, or both such fine and imprisonment, in the 2. Malicious destruction of a hydraulic works or structure,
discretion of the Court, shall be imposed upon any person valued at more than One Hundred Thousand Pesos
who commits any of the following acts: (P100,000.00).
1. Appropriation of water without a water permit, unless Article 92. If the offense is committed by a corporation,
such person is expressly exempted from securing a permit trust, firm, partnership, association or any other juridical
by the provisions of this Code. person, the penalty shall be imposed upon the President,
2. Unauthorized obstruction of an irrigation canal. General Manager, and other guilty officer or officers of
such corporation, trust firm, partnership, association or
PROPERTY
RECITS-NOTES-CASES
entity, without prejudice to the filing of a civil action Any claim not registered within said period shall be
against said juridical person. If the offender is an alien, he considered waived and the use of the water deemed
shall be deported after serving his sentence, without abandoned, and the water shall thereupon be available for
further proceedings. disposition as unappropriated waters in accordance with
the provisions of this Code.
After final judgment of conviction, the Court upon
petition of the prosecution attorney in the same Article 96. No vested or acquired right to the use of water
proceedings, and after due hearing, may, when the public can arise from acts or omissions which are against the law
interest so requires, order suspension of or dissolution of or which infringe upon the rights of others.
such corporation, trust, firm, partnership, association or
Article 97. Acts and contract under the regime of old
juridical person.
laws, if they are valid in accordance therewith, shall be
Article 93. All actions for offenses punishable under respected, subject to the limitations established in this
Article 91 of this Code shall be brought before the proper Code. Any modification or extension of these acts and
court. contracts after the promulgation of this Code, shall be
subject to the provisions hereof.
Article 94. Actions for offenses punishable under this
Code by a fine of not more than Three Thousand Pesos Article 98. Interim rules and regulations promulgated by
(P3,000.00) or by an imprisonment of not more than three the Council shall continue to have binding force and
(3) years, or both such fine and imprisonment, shall effect, when not in conflict with the provisions of this
prescribe in five (5) years; those punishable by a fine Code.
exceeding Three Thousand Pesos (P3,000.00) but not
Article 99. If any provision or part of this Code, or the
more than Six Thousand Pesos (P6,000.00) or an
application thereof to any person or circumstance, is
imprisonment exceeding three (3) years but not more than
declared unconstitutional or invalid for any reason, the
six (6) years, or both such fine and imprisonment, shall
other provisions or parts therein shall not be affected.
prescribe in seven (7) years; and those punishable by a
fine exceeding Six Thousand Pesos (P6,000.00) but not Article 100. The following laws, parts and/or provisions
more than Ten Thousand Pesos (P10,000.00) or an of laws are hereby repealed:
imprisonment exceeding six (6) years but not more than
twelve (12) years, or both such fine and imprisonment, (a) The provisions of the Spanish Law on Waters of
shall prescribe in ten (10) years. August 3, 1866, the Civil Code of Spain of 1889 and the
Civil Code of the Philippines (R.A. 386) on ownership of
CHAPTER IX waters, easements relating to waters, use of public waters
TRANSITORY AND FINAL PROVISIONS and acquisitive prescription on the use of waters, which
are inconsistent with the provisions of this Code;
Article 95. Within two (2) years from the promulgation
of this Code, all claims for a right to use water existing on (b) The provisions of R.A. 6395, otherwise known as the
or before December 31, 1974 shall be registered with the Revised Charter of National Power Corporation,
Council which shall confirm said rights in accordance particularly section 3, paragraph (f), and section 12,
with the provisions of this Code, and shall set their insofar as they relate to the appropriation of waters and
respective priorities. the grant thereof;
When priority in time of appropriation from a certain (c) The provisions of Act No. 2152, as amended,
source of supply cannot be determined, the order of otherwise known as the Irrigation Act, section 3,
preference in the use of the waters shall be as follows: paragraphs (k) and (m) of P.D. No. 813, R.A. 2056;
Section 90, C.A. 137; and,
(a) Domestic and municipal use
(d) All Decree, Laws, Acts, parts of Acts, rules of Court,
(b) Irrigation
executive orders, and administrative regulations which
(c) Power generation are contrary to or inconsistent with the provisions of this
Code.
(d) Fisheries
Article 101. This Code shall take effect upon its
(e) Livestock raising
promulgation.
(f) Industrial use, and
(g) Other uses.

PROPERTY
RECITS-NOTES-CASES
Republic v. Rosemoor Mining conditions of PD 463, the governing law at the time it was
granted; as well as to the rules and regulations
Republic v. Rosemoor Mining and Development
promulgated thereunder. By the same token,
Corp.
Proclamation No. 2204 -- which awarded to Rosemoor
G.R. No. 149927; March 30, 2004; First Division
the right of development, exploitation, and utilization of
J. Panganiban
the mineral site -- expressly cautioned that the grant was
Facts: The four (4) petitioners (herein respondents), subject to "existing policies, laws, rules and regulations."
namely, Dr. Lourdes S. Pascual, Dr. Pedro De la Concha, Thus, respondents’ license may be revoked or rescinded
Alejandro De La Concha, and Rufo De Guzman, after by executive action when the national interest so requires,
having been granted permission to prospect for marble because it is not a contract, property or a property right
deposits in the mountains of Biak-na-Bato, San Miguel, protected by the due process clause of the Constitution.
Bulacan, succeeded in discovering marble deposits of The determination of what is in the public interest is
high quality and in commercial quantities in Mount necessarily vested in the State as owner of all mineral
Mabio which forms part of the Biak-na-Bato mountain resources.
range. Having succeeded in discovering said marble
Moreover, granting that respondents’ license is valid, it
deposits, and as a result of their tedious efforts and
can still be validly revoked by the State in the exercise of
substantial expenses, the petitioners applied with the
police power. The exercise of such power through
Bureau of Mines, now Mines and Geosciences Bureau,
Proclamation No. 84 is clearly in accord with jura regalia,
for the issuance of the corresponding license to exploit
which reserves to the State ownership of all natural
said marble deposits. After compliance with numerous
resources. This Regalian doctrine is an exercise of its
required conditions, License No. 33 was issued by the
sovereign power as owner of lands of the public domain
Bureau of Mines in favor of the petitioners. Shortly after
and of the patrimony of the nation, the mineral deposits
Respondent (herein petitioner) Ernesto R. Maceda was
of which are a valuable asset.
appointed Minister of the Department of Energy and
Natural Resources (DENR), petitioners’ License No. 33 Petition granted.
was cancelled by him through his letter to Rosemoor
Mining And Development Corporation dated September
6, 1986 for the reasons stated therein. Because of the
aforesaid cancellation, the original petition was filed and TITLE V. – POSSESSION
later substituted by the petitioners’ amended petition
dated August 21, 1991 to assail the same. The trial court Define Possession.
ruled that the privilege granted under herein respondents’
Possession is the holding of a thing or enjoyment of a
license had already ripened into a property right, which
right. (Art. 523)
was protected under the due process clause of the
Constitution. The CA affirmed the ruling of the RTC. Most authorities noted that the definition provided under
Article 523 is incomplete.
Issue: Are mining licenses property rights?
Possession is the holding of a thing or the enjoyment of a
Ruling: No. RA 7942 or the Philippine Mining Act of
right with the intention of one to possess in his own right.
1995 embodies the new constitutional mandate. It has
repealed or amended all laws, executive orders, Possession is a fact, but from the moment it exists, certain
presidential decrees, rules and regulations -- or parts consequences follow, thus making possession also a right.
thereof -- that are inconsistent with any of its provisions. (Paras)
A mining license that contravenes a mandatory provision
of the law under which it is granted is void. Being a mere Distinguish jus possessionis from jus
privilege, a license does not vest absolute rights in the possidendi.
holder. Thus, without offending the due process and the Jus possidendi – Right to possession
non-impairment clauses of the Constitution, it can be
revoked by the State in the public interest. The license in  This is a right or incident of ownership.
question, QLP No. 33, is dated August 3, 1982, and it was
Jus possessionis – Right of possession
issued in the name of Rosemoor Mining Development
Corporation. The terms of the license allowed the  This is an independent right of itself, independent
corporation to extract and dispose of marbleized of ownership
limestone from a 330.3062-hectare land in San Miguel,
Bulacan. The license is, however, subject to the terms and
PROPERTY
RECITS-NOTES-CASES
What are the requisites for possession? A possessor in good faith becomes a possessor in bad faith
from the moment he becomes aware that what he believes
There are three requisites/elements. They are:
to be true is not so. (Tacas v. Tobon, 53 Phil. 356)
1. There must be holding or control of a thing or
right (which may be actual or constructive);
What about mistake/doubt in law? In good
2. The holding must be done with intention to faith or in bad faith?
possess; and Article 526 speaks of “Mistake upon a doubtful or
3. It must be in one’s own right (which could be in difficult question of law,” which may be the basis of good
his own name or in that of another) faith.
What are the different degrees of possession? It refers to honest error in the application of the law or the
interpretation of doubtful or conflicting legal provisions
The different degrees of possession are:
or doctrines. (de Leon)
1. Possession without any title – Holding of a thing
It is to dampen the harshness of Art. 34 of the Civil code.
without any right or title at all. (ex. robber or
(Pineda)
usurper of land)
2. Possession with a juridical title – Holding of a However, note that there is a conflicting view regarding
thing predicated on a juridical relation existing on whether or not ignorance of the law can be a basis of
between the holder and the owner or one acting good faith.
on his behalf. (ex. lessee, usufructuary,
depositary, etc.)  Manresa opines that gross and inexcusable
3. Possession with a just but colorable title (Titulo ignorance of the law may not be the basis of good
de colorado) – The possession of an adverse faith but excusable ignorance may be such basis
claimant whose title is sufficient to transfer if it is based upon ignorance of a fact. (See 4
ownership but is defective. (ex. sale by a seller Manresa 101-102)
who is not the true owner of the thing)  Capistrano on the other hand states that excusable
4. Possession with a just and valid tatle (Titulo de ignorance of the law as a basis of good faith was
verdadero de valido) – Possession derived from rejected by the Code Commission on
the right of dominion or possession of an owner. considerations of public policy. (See I Capistrano
472)
What are the different classes of possession?
In possession, there are several presumptions.
The different classes of possession are:
Can you enumerate them?
(a) In one’s own name or in that of another. (Art.
The following are presumptions under possession:
524).
(GEN2-CP3)
(b) In the concept of owner (en concepto de
(a) Good Faith— Good faith is always presumed.
dueno) and in the concept of holder. (Art. 525).
(Art.527).
(c) In good faith (bona fide) or in bad faith. (mala
(b) Continuity of character of possession, whether in good
fide). (Art. 526)
faith or bad faith — it is presumed that possession
You said that a possessor could be in good continues to be enjoyed in the same character in which it
was acquired, until the contrary is proved. (Art. 529).
and in bad faith. What do you mean by good
faith? How about bad faith? (c) Non-interruption of possession — the possession of
hereditary property is deemed transmitted to the heir
A possessor is in good faith if he is not aware that there
without interruption, and from the moment of the death of
exists in his title or mode of acquisition any flaw which
the decedent, in case the inheritance is accepted.
invalidates it. For one to be in good faith, the belief must
be a reasonable, and not capricious. (4 Manresa 98) One who validly renounces an inheritance is deemed
never to have possessed the same. (Art. 533).
On the other hand a possessor is in bad faith if he possess
in any case contrary to the foregoing.
4
Ignorance of the law excuses no one from compliance
therewith.
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RECITS-NOTES-CASES
(d) Presumption of just title —A possessor in the concept The issue concerned in accion publiciana is one of
of owner has in his favor the legal presumption that he possession de jure. It is intended for the recovery of the
possesses with just title, and he cannot be obliged to show better right to possess and it is a plenary proceeding
or prove it. (Art. 541). before the RTC. It must be brought within ten years. E,
believing that he has a better right to possess the property,
(e) Non-interruption of possession of property unjustly
must file it within the prescriptive period provided by law.
lost but legally recovered — one who recovers, according
to law, possession unjustly lost, shall be deemed for all Assuming that the heirs possess the
purposes which may redound to his benefit, to have same for another 7 years before E
enjoyed it without interruption. (Art. 561). arrives, will the action prosper?
(f) Possession during intervening period — it is No more. Under Art. 533, the possession of hereditary
presumed, that the present possessor who was also the property is deemed transferred to the heir uninterrupted
possessor at previous time, has continued to be in from the moment the death of the decedent, suppose that
possession during the intervening time, unless there is the heirs accepted the inheritance.
proof to the contrary.(Art. 1138[2]).
Here, because to the possession of the heirs be added to
(g) Possession of movables with real property — The the possession of F, the heirs have a total of 14 years of
possession of real property presumes that of the movables uninterrupted possession, and that there being a just title
therein, so long as it is not shown or proved that they (succession) and good faith, 10 years would be enough to
should be excluded. (Art. 542). give ownership to the heirs by prescription.
(h) Exclusive possession of common property — “Each Note that under Art. 1138(1), it says that “In the
one of the participants of a thing possessed in common computation of time necessary for prescription, the
shall be deemed to have exclusively possessed the part present possessor may complete the period necessary for
which may be allotted to him upon the division thereof, prescription by tacking his possession to that of his
for the entire period during which the co-possession grantor or predecessor-in-interest.”
lasted.” (Art. 543).
Suppose that F is in bad faith for 9
Suppose that F is in the possession on a parcel years. Same question.
of land for 7 years. In September 1, 2018 he
died. E, the true owner, arrived after the No. Under Art. 534, one who succeeds by hereditary title
shall not suffer the consequences of the wrongful
death of F, claiming the property from heirs. possession of the decedent, if it is not shown that he was
Can E recover the property? aware of the flaws affecting it; but the effects of
possession in good faith shall not benefit him except
Yes. E can recover the property. F and his heirs had not
from the date of death of the decedent. However, since
yet acquired ownership over the parcel of land through
F was in bad faith, the consequences of the good faith of
acquisitive prescription at the time E was informed and
the heirs should be counted only from the date of the
initiated his claims against the heirs.
decedent’s death, that is, only 7 years. Recall that 1 year
What actions can E file to recover the of good faith = 3 years of bad faith. Applying the formula:
property? F in bad faith = 9 years bad faith
E could file an accion publiciana against the heirs. Heirs in good faith = 7 x 3 = 21 years bad faith
It cannot be forcible entry for the entry made by F and his Total time: 30 Years
heirs were not made by force, intimidation, stealth,
threats, or strategy. Note that F is occupying the property Thus, the heirs had acquired the property through adverse
in an open, continuous, exclusive, notorious manner with possession, E can no longer file an accion publiciana
a claim of ownership. against the heirs of F.
It cannot be unlawful detainer for F did not even knew E

at the first place. There was no valid contract between
them, nor did E have any prior knowledge that could have
tolerate such act. Hence, there is no ground for unlawful
detainer.

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RECITS-NOTES-CASES
But would your answer remain the of the Civil Code enumerates the instances of implied
same suppose that from the very inheritance, to wit:
beginning, the heirs knew that F was in Article 1050. An inheritance is deemed accepted:
bad faith? 1. If the heirs sells, donates, or assigns his right to a
No. The heirs then would now be in bad faith pursuant to stranger, or to his co-heirs, or to any of them;
Arts. 526 and 528 of the new civil code. Thus, they need 2. If the heir renounces the same, even though
30 years to acquire ownership over the property. gratuitously, for the benefit of one or more of his
co-heirs;
Applying the formula:
3. If he renounces it for a price in favor of all his co-
F in bad faith = 9 years bad faith heirs indiscriminately; but if this renunciation
should be gratuitous, and the co-heirs in whose
Heirs in bad faith = 7 years bad faith favor it is made are those upon whom the portion
renounced should devolve by virtue of accretion,
Total time: 16 Years the inheritance shall not be deemed as accepted.
Since the F and his heirs only occupied the property for A is an owner of a steel ring. He lost his ring. B
16 years, it had not yet ripen up into ownership.
stole it. A found it again 9 years later. Did B
Suppose that F died in January 1. He left his acquire ownership over the ring?
three children, named A, B, and C, and his Yes. B acquires ownership over the ring. Art. 536 states
wife, W a parcel of land divided to them that in no case may possession be acquired through force
equally (1/4). Now, before partition, W sold or intimidation as long as there is a possessor who objects
all her shares to D. In February 1, C renounced thereto. He who believes that he has an action or a right
his share. A partition was later effected to deprive another of the holding of a thing, must invoke
someday in July. the aid of the competent court, if the holder should refuse
to deliver the thing. Art. 537 states that acts merely
What shares do they have? tolerated, and those executed clandestinely and without
the knowledge of the possessor of a thing, or by violence,
W would get none since she sold her shares to D.
do not affect possession.
C would get none since he renounced his share.
By correlating the two articles B acquires ownership over
A, B, and D would each get 1/3 of the estate of F. the ring through acquisitive extraordinary prescription
which only requires 8 years. Note that A knows that he
Now suppose that partition happened lost his ring, he should had immediately reported the loss
prior to renunciation, same question. to the police and had a criminal “john doe” case be filed
The shares given to the parties in the answer given above before the court for that would constitute an act of
would still govern. Note that under the law, the act of objection. But rather than informing the authorities about
repudiation by C would have a retroactive effect that the loss, he was silent for nine years. Therefore B had
would benefit A, B, and D. Furthermore, note that W sold acquired ownership over the ring. (Supplanted with
ALL her shares to D. comments from Judge Teody)
 Note that A may still recover the ring to B under the
Now suppose that the W sold her
second sentence of Art. 558. Under such, it states that
shares after partition but before one who has lost any movable or has been unlawfully
renunciation, same question. deprived thereof, may recover it from the person in
My answer would be the same. Under the last sentence of possession of the same.
Article 533, one who validly renounces an inheritance is  Further note that the said sentence does not define
deemed never to have possessed the same. Thus, even if whether the one in possession was in good faith or in
the thing was partitioned, D acquired the prospective bad faith. It is submitted that it applies to both.
property of W from the renunciation by C.  Now note that suppose that A opted to recover the
same from B, it is submitted that the provisions under
Can there be an implied acceptance on Art. 561, which states that “One who recovers,
inheritance? according to law, possession unjustly lost, shall be
deemed for all purposes which may redound to his
Yes. Under Article 1049, there are two types of
benefit, to have enjoyed it without interruption.”
acceptance, either express or implied. Under Article 1050
PROPERTY
RECITS-NOTES-CASES
would not apply for B had acquired ownership over B is in possession of a parcel of land. He
the property through acquisitive prescription. Such planted palay. On Jan 2018, he harvested 100
acquisition by B would create an interruption over the cavans of palay and sowed palay seedlings
ownership of A over the said property during such
period. (Supplanted with comments from Judge
after harvest. On March 2018, A went on the
Teody) property and alleged that he is the owner. B
harvested 50 cavans of palay on June 2018
Suppose that A is an owner of a parcel of land. and sowed palay seedlings after harvest. He
A leased the same land to B. B subleased it to earned P2,000.00 per cavan and his expenses
C. C contracted D to cultivate the land. Now were P50,000.00 from January to June 2018..
point out the kind of possession on each He harvested another 50 cavans of palay on
parties. December 2018. The court awarded the
A possesses the parcel of land in the concept of an owner. property to A.
The rest possess the same in the concept of a holder.
a. Who is the owner of the 100 cavans of
In possession in the concept of an owner, an adverse palay?
possession may ripen into ownership. On the other hand,
The 100 cavans of Palay would belong to B. A possessor
in possession in the concept of a holder, the holder
in good faith is entitled to the fruits received before the
acknowledges the superior right of another which he
possession is legally interrupted. Natural and industrial
believes to be of ownership, regardless whether this be
fruits are considered received from the time they are
true or not. (see 3 Manresa 87-89)
gathered or severed. (Art. 544) Thus, in this case, B was
Here, B recognizes that A is the owner by virtue of the in good faith during the time he gathered and harvested
lease contract recognizing the ownership of the latter. Any the palay. Therefore, B is solely entitled for the 100
subcontract done by B would mean that the subcontractee cavans of palay.
would recognize the superior rights of B and A’s
superiority over B’s rights. b. How about in the profits on the
January-June season?
How do you acquire possession?
It depends upon the option chosen by A. Under Article
Possession could be acquired by (MAP) 545, a possessor can either
1. Material occupation (Includes tradition (1) Have a right to a part of the expenses of
constitutum possessorium and tradition brevi cultivation, and to a part of the net harvest, both
manu); in proportion to the time of the possession. The
2. Acts subjecting the thing under the action of our charges shall be divided on the same basis by the
will (Includes tradition symbolica and tradition two possessors; or
longa manu); or (2) Give the possessor in good faith the right to finish
3. Proper acts or legal formalities established for the cultivation and gathering of the growing
acquiring such right of possession (Such as fruits, as an indemnity for his part of the expenses
succession, donation, contract, or execution of a of cultivation and the net proceeds.
public instrument).
Thus in the case at hand:
If A opted the first option, the income and expenses would
be divided in proportion to the time of the possession.
Thus, since there is six months between January and June.
B was in good faith for 3 months. The proportion would
be 50:50. Therefore, if the revenues was P100,000.00
(P2,000 x 50 cavans), and the expenses would be P50,000.
The net income is P50,000.00 (P100K – P50K).
Therefore, A and B would get P25,000.00 each.
However, If A opted the second option, A would let B
finish the harvest. A then would not share on the expenses
incurred by B. Thus B would be allowed to get the whole
net income of P50,000.00
PROPERTY
RECITS-NOTES-CASES
c. What if B refused to accept any A possessor in good faith is The possessor in bad faith
entitled to the fruits received
concession? before the possession is
shall reimburse the fruits
received and those which
B would not get anything. Under the law, the possessor in legally interrupted. the legitimate possessor
good faith who for any reason whatever should refuse to  Natural and
could have received. (Art.
industrial fruits are
accept this concession, shall lose the right to be considered
549)
indemnified in any other manner. received from the
time they are ON UNGATHERED
d. How about the 50 cavans of palay gathered or FRUITS:
harvested from June to December? severed. He who builds, plants or
 Civil fruits are sows in bad faith on the
A would be the owner. Under Article 449, he who builds, deemed to accrue land of another, loses
plants or sows in bad faith on the land of another, loses daily and belong to what is built, planted or
what is built, planted or sown without right to indemnity. the possessor in sown without right to
good faith in that indemnity.(Art. 449)
Plus, Under Article 556, the possessor in bad faith shall
proportion.(Art.
reimburse the fruits received and those which the 544)
legitimate possessor could have received, and shall have ON UNGATHERED
a right only to the expenses mentioned in paragraph 1 of FRUITS:
article 546 and in article 4435. B planted in bad faith. 1. The possessor shall
Thus, B loses what he has planted plus he is bound to have a right to a
part of the expenses
return the 50 cavans of palay to A (or the value thereof if of cultivation, and
B already disposed the same). However, B is still entitled to a part of the net
for necessary expenses. harvest, both in
proportion to the
e. Suppose that on May 2018, heavy time of the
torrential rains flooded the region and possession. The
charges shall be
B only harvested 10 cavans of palay on divided on the same
the harvest period. What happens? basis by the two
possessors; or
If A opted the first option under Article 545, since the net 2. Should he so desire,
income is P-30,000 (P20,000-P50,000), then A and B give the possessor
would be at loss for P-15,000 each. in good faith the
right to finish the
However, if A opted to let B to finish the same, B would cultivation and
only be solely at loss for P-30,000.00 gathering of the
growing fruits, as
PERSONAL COMMENTS: an indemnity for his
part of the expenses
1. Note that the distribution and reimbursements for of cultivation and
necessary, useful, and luxurious expenses were not the net proceeds
included on this problem. (Art. 545)
2. On the problem (e), note that B may refuse such
concession, which, if it happens, B would not suffer The possessor in good
any loss since the fruits then would pertain to A at the faith who for any reason
time of his refusal. That would be unfair for A who whatever should refuse to
won the property would solely suffer the loss from the accept this concession,
acts of B. shall lose the right to be
indemnified in any other
What are the rules on good faith and bad manner.(id)
faith in possession? AS TO NECESSARY EXPENSES
Necessary expenses - They are those without which
AS TO THE ENTITLEMENT TO THE FRUITS
the thing would physically deteriorate or be lost; hence,
GOOD FAITH BAD FAITH
those made for the preservation of the thing. (4
ON GATHERED/ ON GATHERED/
SEVERED FRUITS:
Manresa 270-271).
SEVERED FRUITS:
GOOD FAITH BAD FAITH
5
Article 443. He who receives the fruits has the obligation to pay the
expenses made by a third person in their production, gathering, and
preservation.
PROPERTY
RECITS-NOTES-CASES
The possessor in good The possessor in bad faith Note that the possessor in loses what is built,
faith shall have: shall have: good faith is entitled to planted or sown
1. The right to be 1. The right to be both the fruits and without right to
reimbursed; and reimbursed. expenses (necessary or indemnity. It is just
2. The right to useful), hence they do not right that he should
retention of the He has no right to retain compensate each other.(4 not get anything.
property.(Art. the property. (Art. 546) Manresa 290)
546) AS TO LUXURIOUS EXPENSES
Luxurious expenses – are those which add value to the
NOTE: If the owner sues thing only for certain determinate persons in view of
the possessor for the their particular whims. They are neither essential for
recovery of the property, preservation nor useful to everybody in general. (4
the possessor in good faith Manresa 274-275)
must file a counterclaim GOOD FAITH BAD FAITH
for the refund of Generally, the possessor Generally, the possessor
necessary and useful has no right to refund or in bad faith has no right to
expenses, otherwise the retention but he can refund or retention but he
judgment in the case for remove if no substantial can remove if no
possession will be a bar to injury is caused. substantial injury is
a subsequent suit brought caused.
solely for the recovery of However, the owner has However, the owner has
such expenses. The the option to allow: the option to allow:
purpose is clearly to avoid 1. The possessor to 1. The possessor to
the multiplicity of suits. remove; or remove; or
(Beltran v. Valbuena, 53 2. To retain for 2. To retain for
Phil. 697). himself the himself the
AS TO USEFUL EXPENSES ornament by ornament by
Useful expenses - are those that add value to the refunding the refunding the
property, or increase the object’s productivity or useful amount spent. value it has at
for the satisfaction, of spiritual and religious yearnings, (Art. 548) the time the
or give rise to all kinds of fruits. (Paras) owner enters
GOOD FAITH BAD FAITH into possession.
The possessor in good The possessor in bad faith (Art. 549)
faith shall have: is not entitled to any right AS TO THE DETERIORATION OF THE THING
1. The right to regarding the useful GOOD FAITH BAD FAITH
reimbursement of expenses. General rule: The possessor is liable
either the amount  But he may The possessor is not liable regardless whether there
spent or the nevertheless remove for the loss or is summons or the loss is
increase in value the objects provided deterioration of the thing due to fortuitous event or
at the owner’s the things suffer no before receipt of judicial not.
option; injury thereby, and summons, or after receipt
2. The right to that the lawful of judicial summons, if
retention; (Art. possessor does not the loss was due to
546) prefer to retain them fortuitous event.
3. The right of by paying the value
removal provided they may have at the Exception:
that no substantial time he enters into The possessor is liable to
damage or injury possessoion. (Angeles the loss of the thing after
is caused to the v. Guevarra) Caveat: judicial summons if the
principal, It is submitted that loss or deterioration was
reducing its this is not of useful due to:
value, unless the but for pure luxury. 1. Fraudulent Intent;
winner exercise  In relation to the case or
the first option. above, please note 2. Negligence
(Art. 547) that under Article 449,
The law gives preference he who builds, plants
to the winner. or sows in bad faith on How is possession lost?
the land of another,
Possession is lost: (AA-PFERP-EDG)
PROPERTY
RECITS-NOTES-CASES
1. Voluntarily - means the complete (not merely a limited)
1. Abandonment. transmission of ownership rights to another
2. Assignment. person, either gratuitously or onerously.
2. Against the possessor’s will - In assignment, both possession de facto and de
1. Possession of another for more than 1 jure are lost, and no action will allow recovery.
year. (Paras)
2. Final judgment in favor of another.
POSSESSION OF ANOTHER
3. Expropriation.
4. Prescription in favor of another. - If more than one year but less than 10 years, he
5. Recovery or reivindication by the loses possession de facto.
legitimate owner or possessor. - If more than 10 years, he loses possession de jure.
3. Because of the Object An accion publiciana or reivindicatoria is still
1. Destruction or total loss of the thing. possible unless prescription, whether ordinary or
2. Goes out of commerce. extraordinary, has set in.
3. Escaping from possessor’s control of
wild animas WILD ANIMALS
ABANDONMENT - One’s possession of wild animals is lost when

they are under another’s control or under no one’s
- is the voluntary renunciation of a thing control (as when they have regained their natural
- Requisites: freedom and have become res nullius for
1. He must be a possessor of a thing in the possession of them was possible only when
concept of an owner; power or force could be exercised over them.
2. He must have the capacity to renounce or Eliminate that control, and you eliminate
to alienate; possession automatically. (4 Manresa).
3. There must be a physical relinquishment; - For domesticated and tamed animals
4. Spes Recuperandi (expectation to 1. The possessor does not lose possession of
recover) is gone; and them as long as habitually they return to
5. Animus Revertendi (Intent to recover) is the possessor’s premises.
no more. 2. Impliedly, possession of them is lost if
- A property owner cannot be held to have such habit has ceased.
abandoned the same until at least he has some
knowledge of the loss of its possession or the Note that insofar as ownership is concerned, the
thing. (US v. Rey, 8 Phil 500) provisions of Art. 716 would apply.6
- An owner may abandon possession merely,
Programme Inc. v. Province of Bataan
leaving ownership in force, but a mere possessor
cannot abandon ownership since he never had the Programme, Inc. v. Province of Bataan
same. (Paras) G.R. No. 144635; June 26, 2006; Second Division
- In true abandonment, both possession de facto J. Corona
and de jure are lost.
- The possession of movables is not deemed lost so Facts: BASECO is the owner of Piazza Hotel located in
long as they remain under the control of the Mariveles, Bataan. In 1986, Baseco granted petitioner a
possessor, even though for the time being he may contract of lease over Piazza Hotel at a monthly rental of
not know their whereabouts.(Art. 556) P6500 for 3 years, subject to renewal by mutual
- Abandonment which converts the thing into res agreement of the parties. After the expiration of the
nullius does not apply to land. Much less does period, petitioner was allowed to continue operating the
abandonment not apply to registered land. hotel on monthly extensions of the lease. In 1989, the
(Paras) PCGG issued a sequestration order against BASECO.
Among the properties seized was the lot on which Piazza
ASSIGNMENT Hotel stood. On July 1989, the hotel was sold at a public
6 also claim them within twenty days to be counted from their

Article 716. The owner of a swarm of bees shall have a right to
pursue them to another's land, indemnifying the possessor of the latter occupation by another person. This period having expired, they shall
for the damage. If the owner has not pursued the swarm, or ceases to pertain to him who has caught and kept them.
do so within two consecutive days, the possessor of the land may
occupy or retain the same. The owner of domesticated animals may
PROPERTY
RECITS-NOTES-CASES
auction for non-payment of taxes to the respondent contract as rescinded and of no value. As a result of this
province. The title of the property was transferred to second agreement, the plaintiff returned to the defendant
respondent. BASECO’s TCT was cancelled and a new the lands together with all the documents pertaining
one was issued in to respondent. The trial court ruled in thereto. The defendant, on his part, instead of returning
favor of respondent. The CA affirmed the decision of the the price received by him, subscribed in favor of the
trial court. plaintiff another document in which he acknowledges that
he owes the plaintiff the sum of P12,000, of which
Issue: Is petitioner a possessor in good faith? P2,000, the amount of the interest on P10,000 for one
year, was to be paid on or before the 31st of May of the
Ruling: No. The benefits granted to a possessor in good following year, 1915, and, as to the remaining P10,000, it
faith cannot be maintained by the lessee against the lessor was agreed that the date of their payment would be fixed
because, such benefits are intended to apply only to a case upon payment of the P2,000. On May 28, 1915, the
where one builds or sows or plants on land which he defendant paid the plaintiff the P2,000 in accordance with
believes himself to have a claim of title and not to lands the contract. Upon this payment being made no time was
wherein ones only interest is that of a tenant under a rental fixed for the payment of the other P10,000. The plaintiff
contract, otherwise, it would always be in the power of a filed against the defendant an action in the CFI of Tarlac
tenant to improve his landlord out of his property. wherein he demanded of the defendant the payment of the
Besides, as between lessor and lessee, the Code applies P10,000. The CFI rendered judgment fixing the period of
specific provisions designed to cover their rights. Hence, three months for the defendant to pay the P10,000.
the lessee cannot claim reimbursement, as a matter of Defendant, however, has a counterclaim which was the
right, for useful improvements he has made on the subject of the appeal. The sum demanded in this
property, nor can he assert a right of retention until counterclaim were civil fruits collected by the plaintiff
reimbursed. His only remedy is to remove the during the time he was in possession of them.
improvement if the lessor does not choose to pay its value;
but the court cannot give him the right to buy the land. Issue: Is the plaintiff obliged to return to the defendant the
Petitioners assertion that Piazza Hotel was constructed at products to the lands that the plaintiff collected during his
(its) expense found no support in the records. Neither did possession?
any document or testimony prove this claim. At best, what
Ruling: No. The plaintiff held the lands by reason of his
was confirmed was that petitioner managed and operated
having purchased them from the defendant. On this
the hotel. There was no evidence that petitioner was the
account, his possession, until the contract of purchase and
one which spent for the construction or renovation of the
sale was dissolved and the lands were returned by him,
property. And since petitioners alleged expenditures were
was in good faith. As such possessor in good, faith, the
never proven, it could not even seek reimbursement of
fruits collected by him become his own and he is not
one-half of the value of the improvements upon
obliged to return them to the defendant. In the absence of
termination of the lease under Article 1678 of the Civil
any covenant, this provisions should be applied to the
Code.
instant case. Aside from the foregoing considerations,
equity also lies on the plaintiff's side, because, as the
Petition denied
record shows, for the improvement of the land and in
order to produce the fruits which he collected, he incurred
Aquino v. Tañedo
expenses in an amount such that the products collected by
Aquino v. Tañedo him may, reasonably, be considered equivalent to the
G.R. No. L-12457; January 22, 1919; En Banc interest for one year on the P10,000 which he had paid to
J. Avanceña the defendant.
Facts: On May 5, 1913, the plaintiff purchased from the Decision appealed from affirmed.
defendant several parcels of land for the price of P45,000.
In the contract the defendant acknowledged receipt of the
sum of P10,000, as a part of this price, the contracting
parties stipulating that the rest should be paid as follows: TITLE VI. – USUFRUCT
P7,000 in September of the same year, P10,000 in May,
1914, and P18,000 in 1915. By virtue of this contract the
plaintiff took possession of the lands purchased. On What is usufruct?
March 28, 1914, the plaintiff and the defendant, by virtue
of another contract, agreed to consider the previous Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and substance,
PROPERTY
RECITS-NOTES-CASES
unless the title constituting it or the law otherwise (b) What can be enjoyed (b) Easement is limited
provides. (Art. 562) here are all uses and to a particular use.
fruits of the property.
Usufruct is “real right, of a temporary nature, which (c) A usufruct cannot be (c) An easement may be
authorizes its holder to enjoy all the benefi ts which result constituted on an constituted in favor
from the normal enjoyment (or exploitation) of another’s easement; but it may of, or burdening, a
property, with the obligation to return, at the designated be constituted on the piece of land held in
time, either the same thing, or in special cases, its land burdened by an usufruct.
equivalent.” (De Buen, Derecho Comun., 3rd ed. 225) easement. (d) It is not extinguished
(d) Usually extinguished by the death of the
What is the characteristics of a usufruct? by death of owner of the
usufructuary.(Paras) dominant estate.
ESSENTIAL CHARACTERISTICS. (Paras)
1. It is a real right; SIMILARITIES:
2. It is of temporary nature; 1. Both are real rights;
3. It is transmissible; 2. Both may be registered, provided that the
usufruct involves real property.
4. It may be constituted on real or personal property,
3. Both may be alienated or transmitted in
consumable or non-consumable, tangible, or
accordance with the formalities set by law
intangible, the ownership of which is vested on
another; and
5. Its purpose is to enjoy the benefits and derive all Distinguish usufruct from lease.
advantages from the object as a consequence of
USUFRUCT LEASE
normal use or exploitation.
Covers only a particular
Covers all fruits and uses
NATURAL CHARACTERISTICS. or specific use
Generally, it is a personal
1. The obligation of conserving or preserving the right. However, it is a real
form and substance of the thing. right if:
- Reasons: 1. the lease of real
i. To prevent extraordinary Always a real right. property is
exploitation; registered; or
ii. To prevent abuse; and 2. The lease if for
iii. To prevent impairment. more than one
year.
How would you differentiate usufruct from Can be created only by the
The lease may be created
ownership? owner or by his agent.
by the owner or the lessee
of the property.
In full ownership, the owner has all the three fundamental May only be created by
rights over the main property, which are: contract.
May be created by law,
Exceptions:
1. Jus disponendi; contract, last will, or
1. Rules on implied
2. jus utendi; and prescription.
new lease;
3. jus fruendi. 2. Art. 448
The owner is passive – he
In comparison, a usufructuary has only jus utendi and jus The owner is active – he
allows the usufructuary to
fruendi over the property. He cannot dispose the property. makes the lessee enjoy
enjoy.
The right to dispose remains on the naked owner. The usufructuary has the
The lessee generally has
Note however that the usufructuary has the full ownership duty to make ordinary
no duty to pay for repairs.
over the right to usufruct over the property. repairs
The usufructuary pays for
The lessee generally pays
Distinguish usufruct from easement. the annual charges and
no taxes.
taxes on the fruits.
USUFRUCT EASEMENT A lessee cannot constitute
DIFFERENCES The usufructuary may
a usufruct over the thing
(a) The object in usufruct (a) This involves only lease the property
leased.
may be real or real property.
personal property.

PROPERTY
RECITS-NOTES-CASES
How do you constitute usufruct? b. To Enjoy any increase which the thing in
usufruct may acquire through accession;
Usufruct is constituted:
c. To Personally enjoy the thing in usufruct
1. by law; or lease it to another;
2. by the will of private persons expressed d. To Make on the property in usufruct such
a. in acts inter vivos; or improvements or expenses he may deem
b. in a last will and testament; and proper and to remove the improvements
3. by prescription. provided that no damage is caused to the
property;
Note that a usufruct over real property, being a real right, e. To Set-off the improvements he may
must be duly registered in order to bind innocent third have made on the property against any
parties. If such is not registered, it is allowed, but it would damage to the same;
not bind innocent third persons. f. To Retain the thing until he is reimbursed
for advances for extraordinary expenses
What do you mean by inter vivos? How about
and taxes on the capital.
Mortis causa? 2. As to the usufruct itself:
Inter vivos – the will would take effect during the lifetime a. To Alienate the right of usufruct except
of one granting it. parental usufruct;
b. To Bring the action and to oblige the
Mortis causa – the will would take effect upon the death owner thereof to give him proper
of one granting it. authority and necessary proof;
Can you subject a part of the property to a c. To Exercise all the rights pertaining to
the co-owner with respect to the
usufruct?
administration and collection of fruits
Yes. Usufruct could be universal or particular. (See Art. and interests from the property.
598). It is universal if it covers the entire patrimony. It is 3. As to advances and damages:
particular if only individual things are included. a. To be Reimbursed for indispensable
extraordinary repairs made by him in an
Can the naked owner be a usufructuary at the amount equal to the increase in the value
same time? which the property may have acquired by
No. An owner could not retain ownership of the land and, the reason of such repairs;
at the same time, be the usufructuary thereof. His b. To be Reimbursed for taxes on the capital
intention of the usufructuary rights in itself imports that advanced by him; and
he was no longer its owner. For usufruct is essentially jus c. To be Indemnified from the damages
in re aliena; and to be a usufructuary of one's own property caused to him by the naked owner.
is in law a contradiction in terms, and a conceptual What are the rules on taxes regarding to fruits
absurdity.(Gaboya v Cui, G.R. No L-19614 [1971])
and capital?
What happens if the usufructuary died? On the fruits – The payment of annual charges and taxes
General rule: The death of the usufructuary extinguishes and of those considered as a lien on the fruits, shall be at
the usufruct. (Art. 603) the expense of the usufructuary for all the time that the
usufruct lasts. (Art. 596)
Exception: Unless a contrary intention appears. (id) Here,
the heirs of the decedent would have the right to usufruct On the capital property – The taxes which, during the
of the said property. usufruct, may be imposed directly on the capital, shall be
at the expense of the owner. (Art. 597)
What are the rights of the usufructuary?
 Note that if paid by naked owner, he can demand
The following are the rights of the usufructuary: legal interest on the sum paid for the usufructuary
(REP-MaSeR-ABERRI) is enjoying the property. If the same is advanced
by the usufructuary, said usufructuary
1. As to the thing and its fruits: 1. Should be reimbursed the amount paid
a. To Receive the fruits of the property in with legal interest; and
usufruct and half of the hidden treasure 2. Is entitled to the right of retention.
he accidentally finds on the property;
PROPERTY
RECITS-NOTES-CASES
What is the rule on natural and industrial naked owner and usufructuary, for the time the usufruct
fruits? How about civil fruits? lasts.
Natural or industrial fruits growing at the time the Art. 570 applies whether or not the date of distribution is
usufruct begins, belong to the usufructuary. fixed. The law does not mention anymore the case when
the date is fixed because this after all is the usual state of
 The usufructuary, at the beginning of the things, and the rule enunciated in Art. 570 clearly applies.
usufruct, has no obligation to refund to the owner Whether or not, however, Art. 570 applies to a case where
any expenses incurred. the date is not fixed was doubtful before, hence, the
Those growing at the time the usufruct terminates, belong necessity of an express provision on the subject. (See 4
to the owner. Manresa 393-395).
 The owner is obliged to reimburse the Dividends and partnership profits are civil fruits.
usufructuary at the termination of the usufruct, Suppose that every 21st of the month, you get
from the proceeds of the growing fruits, the
ordinary expenses of cultivation, for seed, and
a pension. Your usufruct ended on September
other similar expenses incurred by the latter. 20. Can you claim the pension for September?
Yes. The fruits shall be deemed to accrue proportionately
Note that the provisions of Article 567 shall not prejudice
to the naked owner and usufructuary, for the time the
the rights of third persons, acquired either at the beginning
usufruct lasts. Thus, I can claim the pension for
or at the termination of the usufruct.
September as a usufructuary or as the naked owner.
Civil fruits are deemed to accrue daily, and belong to the
usufructuary in proportion to the time the usufruct may May the usufruct be alienated? Is there any
last. limitation?
What if the usufructuary found a treasure on Yes. The Usufructuary has the absolute right to alienate
with respect to his usufruct. However, he cannot
the land of the naked owner? dispose/alienate the capital property for he does not have
It depends. Article 566 means that the usufructuary, not such right over it. That right is possessed by the naked
being the landowner, is not entitled as owner of the hidden owner.
treasure found. Thus, if somebody else is the finder, the
usufructuary gets nothing. May money be the subject of usufruct?
Yes. Article 574 states that:
However, if the usufructuary is the finder of the treasure,
he is entitled for his share. Article 574. Whenever the usufruct includes things
which cannot be used without being consumed, the
What is the rule on periodical pensions? usufructuary shall have the right to make use of them
Article 570 states that: under the obligation of paying their appraised value
at the termination of the usufruct, if they were
Article 570. Whenever a usufruct is constituted on the appraised when delivered. In case they were not
right to receive a rent or periodical pension, whether appraised, he shall have the right to return the same
in money or in fruits, or in the interest on bonds or quantity and quality, or pay their current price at the
securities payable to bearer, each payment due shall time the usufruct ceases.
be considered as the proceeds or fruits of such right.
That would then be considered as an abnormal usufruct.
Whenever it consists in the enjoyment of benefits Note that abnormal usufruct should be treated similarly
accruing from a participation in any industrial or like mutuum. In this case, the usufructuary must pay the
commercial enterprise, the date of the distribution of naked owner once the usufruct is extinguished.
which is not fixed, such benefits shall have the same
character.
In either case they shall be distributed as civil fruits, What are the obligations of the usufructuary?
and shall be applied in the manner prescribed in the
preceding article. The obligations of the usufructuary are as follows:
The things referred to in Art. 570 are considered civil (MaG-TaRM-NoW-AIDS-NoC-RII)

fruits and shall be deemed to accrue proportionately to the
1. Those before the usufruct begins:

PROPERTY
RECITS-NOTES-CASES
a. To Make an inventory of the property; the obligation to return, at the designated time, either the
and same thing or, in special cases, its equivalent. (De Buen)
b. To Give security, unless such is no
Usufruct includes both jus utendi and the jus fruendi.
longer needed by instances.
2. Those during the usufruct: The last part of Art. 562 means that the law or will of the
a. To Take care of the property; parties may allow the modification of the substance of the
b. To Replace the young of animals that die thing, admitting the quasi-usufruct of the Roman Law.
or lost in certain cases when the usufruct This has given rise to the classification of usufruct into
is constituted in a flock or herd of normal and abnormal. (1 Camus 434) Abnormal usufruct
livestock; should be treated similarly like a mutuum contract.
c. To Make ordinary repairs;
d. To Notify the owner of urgent Examples of abnormal usufruct:
extraordinary repairs necessary for the 1. Consummable things;
preservation of the property; 2. Sterile animals.
e. To permit Works and improvements by
the naked owner not prejudicial to the CLASSIFICATION OF USUFRUCT
usufruct;
f. To pay Annual taxes and charges on the 1. Legal;
fruits; AS TO CAUSE 2. Voluntary; and
g. To pay Interest on taxes on capital paid 3. Mixed. (Art. 563)
by naked owner;
AS TO WHETHER OR
h. To pay Debts when the usufruct is
NOT THE
constituted on the whole patrimony; 1. Normal; and
IMPAIRMENT OF
i. To Secure the naked owner or court’s THE OBJECT IS
2. Abnormal (Art. 562)
approval to collect credits in certain ALLOWED
cases; 1. Simple; and
j. To Notify the owner of any prejudicial 2. Multiple, which may
act committed by third persons; and AS TO THE NUMBER
be:
OF
k. To pay for the Court expenses and costs a. Simultaneous; or
USUFRUCTUARIES
regarding usufruct b. Successive. (Art.
3. Those after the termination of the usufruct: 563; 611)
a. To Return the thing in usufruct to the 1. Pure;
naked owner unless there is a right of 2. With a term or
AS TO TERMS OR
retention; period;
CONDITIONS
b. To pay legal Interest for the time that the 3. Conditional; (Art.
564)
usufruct lasts, on the amount spent by the
AS TO QUALITY OR 1. Of things; and
owner for extraordinary repairs and the
KIND OF OBJECT 2. Of rights. (id)
proper interest on the sums paid as taxes
by the owner; and AS TO QUANTITY OR 1. Total; and
EXTENT OF OBJECT 2. Partial (Art. 564)
c. To Indemnify the naked owner for any
AS TO EXTENT OF
losses due to his negligence or of his 1. Universal; and
OWNER’S
transferees. 2. Particular (Arts. 598-
PATRIMONY
599)
NOTES ON USUFRUCT A usufruct of a right is of the same nature as the right

Usufruct gives a right to enjoy the property of another
which is burdened. Thus, a usufruct over a real right is
with the obligation of preserving its form and substance,
also a real right, and a usufruct over a personal credit is in
unless the title constituting it or the law otherwise
itself a credit. (2 Tolentino 320)
provides. (Art.562)
RIGHTS OF A USUFRUCTUARY
Usufruct is a real right, of a temporary nature, which
authorizes its holder to enjoy all the benefits which results The rights and obligations of the usufructuary shall be
from the normal enjoyment of another’s property, with those provided in the title constituting the usufruct; in
default of such title, or in case it is deficient, the
PROPERTY
RECITS-NOTES-CASES
provisions contained in the two following Chapters shall The provisions of this article shall not prejudice the rights
be observed. (Art. 565) of third persons, acquired either at the beginning or at the
termination of the usufruct. (Art. 567)
The rights and duties of the usufructuary provided by law
may be modified or eliminated by the parties. (3-II Although the usufructuary is not bound to pay the
Enneccerus, Kipp and Wolff 86) expenses of cultivation and production to the naked owner
of fruits pending at the beginning of the usufruct, he
The usufructuary shall be entitled to all the natural,
should pay the expenses to a third person which may have
industrial and civil fruits of the property in usufruct. (Art.
incurred them in consonance with the rule in Art. 443, to
566)
which Art. 567 merely provides an exception in the case
With respect to hidden treasure which may be found on of the naked owner. (4 Manresa 292; 3 Sanchez Roman
the land or tenement, he shall be considered a stranger. 557)
(Id.)
If the usufructuary has leased the lands or tenements given
The usufructuary has the right to enjoy the property, to the in usufruct, and the usufruct should expire before the
same extent as the owner, but only with respect to its use termination of the lease, he or his heirs and successors
and the receipt of its fruits. (2 Antokoletz 729) He likewise shall receive only the proportionate share of the rent that
has the right to administer the property in usufruct. (Fabie must be paid by the lessee. (Art. 568) Civil fruits are
v. David, 42 O.G. 511) deemed to accrue daily, and belong to the usufructuary in
proportion to the time the usufruct may last. (Art. 569)
The usufructuary, however, cannot extract products
which do not constitute fruits, because he is bound to A lease executed by the owner before the creation of the
preserve the form and substance of the thing. (2 Tolentino usufruct is not extinguished by such usufruct. (3 Planiol
321) Thus, one cannot convert an orchard into a grazing and Ripert 672-673)
field, nor one can convert a ricefield into a fishpond. (2
The usufructuary is entitled to receive such rents only up
Antokoletz 729)
to the time of the expiration of the usufruct. (2 Tolentino
Dividends from shares of a corporation are fruits and thus 324) Thus, suppose that the lease is for 3 years and the
belong to the usufructuary. (Bachrach v. Seifert, G.R. No. usufruct terminates after the lease has been in force for
L-2659 [1950]) only two years; the rents for the remaining period belongs
to the owner.
The rights of a usufructuary may be transferred, assigned,
or otherwise disposed of by the usufructuary. Whenever a usufruct is constituted on the right to receive
a rent or periodical pension, whether in money or in fruits,
Like any other property rights, they are not exempt from or in the interest on bonds or securities payable to bearer,
execution and can be sold at public auction. (Vda. De each payment due shall be considered as the proceeds or
Bogacki v. Inserto, 111 SCRA 356) fruits of such right. Whenever it consists in the enjoyment
Minerals and other things which taken from the soil of benefits accruing from a participation in any industrial
diminishing its substance forms part of the capital and do or commercial enterprise, the date of the distribution of
not pertain to the usufructuary. (2 Tolentino 322) which is not fixed, such benefits shall have the same
However, if the owner dedicated the same to exploitation character. In either case they shall be distributed as civil
before the constitution of the usufruct, these may be fruits, and shall be applied in the manner prescribed in
treated as fruits and shall pertain to the usufructuary. (2- Article 569. (Art. 570)
II Colin and Capitant 722) The usufructuary shall have the right to enjoy any increase
Natural or industrial fruits growing at the time the which the thing in usufruct may acquire through
usufruct begins, belong to the usufructuary. Those accession, the servitudes established in its favor, and, in
growing at the time the usufruct terminates, belong to the general, all the benefits inherent therein. (Art. 571)
owner. In the preceding cases, the usufructuary, at the The usufructuary may personally enjoy the thing in
beginning of the usufruct, has no obligation to refund to usufruct, lease it to another, or alienate his right of
the owner any expenses incurred; but the owner shall be usufruct, even by a gratuitous title; but all the contracts he
obliged to reimburse at the termination of the usufruct, may enter into as such usufructuary shall terminate upon
from the proceeds of the growing fruits, the ordinary the expiration of the usufruct, saving leases of rural lands,
expenses of cultivation, for seed, and other similar which shall be considered as subsisting during the
expenses incurred by the usufructuary. agricultural year. (Art. 572)

PROPERTY
RECITS-NOTES-CASES
The transfer or lease of the usufruct does not terminate the certain relations and therefore cannot be enjoyed
relation of the usufructuary with the owner. The by others who do not have such relations. (2
usufructuary and his security continue to be liable in favor Valverde 426-427)
of the owner, for the fulfillment of the former’s
SECOND VIEW: Manresa, Castan, and the
obligations, because these obligations are personal and
Spanish Supreme court view it as otherwise. (See
cannot be extinguished by change of debtor without the
2 Castan 258-259)
consent of the owner. (3 Vera 223) A usufructuary who
alienates or leases his right of usufruct shall answer for
any damage which the things in usufruct may suffer
through the fault or negligence of the person who Whenever the usufruct includes things which, without
substitutes him. (Art. 590). being consumed, gradually deteriorate through wear and
tear, the usufructuary shall have the right to make use
The usufruct does not terminate upon the death of the thereof in accordance with the purpose for which they are
transferee but upon the death of the usufructuary who has intended, and shall not be obliged to return them at the
made the transfer. (9 Salvat 202-203) termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for
The usufructuary cannot alienate or dispose the objects
any deterioration they may have suffered by reason of his
involved in usufruct. However, save for certain
fraud or negligence. (Art. 573)
exceptions such as in cases of abnormal usufruct.
Whenever the usufruct includes things which cannot be
Suppose that there is a usufruct over a parcel of land with
used without being consumed, the usufructuary shall have
growing crops. Can the usufructuary sell future crops?
the right to make use of them under the obligation of
Yes. He may sell the future crops. paying their appraised value at the termination of the
usufruct, if they were appraised when delivered. In case
Now suppose that the usufruct terminates before the
they were not appraised, he shall have the right to return
harvest and a sale of future crops happened. What’s next?
the same quantity and quality, or pay their current price at
Threre are conflicting views from here. The first the time the usufruct ceases. (Art. 574)
view is if the sale is considered valid, the owner
The usufructuary of fruit-bearing trees and shrubs may
is entitled to receive the price from the vendee. If
make use of the dead trunks, and even of those cut off or
the price has been paid in advanced to the
uprooted by accident, under the obligation to replace them
usufructuary, he or his estate must deliver it to the
with new plants. (Art. 575)
owner.
If in consequence of a calamity or extraordinary event, the
*Note that the owner may refuse to recognize the
trees or shrubs shall have disappeared in such
sale, which may be void as to him. The sale of a
considerable number that it would not be possible or it
future crop is a sale of property not belonging to
would be too burdensome to replace them, the
the usufructuary. The only recourse of the vendee
usufructuary may leave the dead, fallen or uprooted trunks
then is to recover from the usufructuary the
at the disposal of the owner, and demand that the latter
amount that he has paid. (See 2-II Colin and
remove them and clear the land. (Art. 576)
Capitant 728)
The usufructuary of woodland is an inoperative usufruct
The second view is to apply the analogy the
for all forest lands belong to the state under the regalian
provisions of Art. 568, dividing the price of sale
doctrine. The provision about it provides:
between the usufructuary and the owner in
proportion of each in the agricultural year, but Article 577. The usufructuary of woodland may enjoy
keeping the sale as valid. (De Buen) all the benefits which it may produce according to its
nature.
*Since the provisions of Article 567 is clear, the
provisions of Art. 568 cannot be applied. If the woodland is a copse or consists of timber for
building, the usufructuary may do such ordinary
Can you alienate a legal usufruct? cutting or felling as the owner was in the habit of
doing, and in default of this, he may do so in
There are conflicting views. accordance with the custom of the place, as to the
manner, amount and season.
FIRST VIEW: No. Only voluntary usufructs can
be alienated under Art. 572 for legal usufructs are
created by law for particular persons in view of
PROPERTY
RECITS-NOTES-CASES
In any case the felling or cutting of trees shall be made indemnity, but if the increase in value exceeds the
in such manner as not to prejudice the preservation of damages, but the improvements can be removed, they
the land. may have so. But if it cannot be removed without injury,
In nurseries, the usufructuary may make the necessary the increase in value accrues to the owner. (4 Manresa
thinnings in order that the remaining trees may 446)
properly grow.
The owner of property the usufruct of which is held by
With the exception of the provisions of the preceding another, may alienate it, but he cannot alter its form or
paragraphs, the usufructuary cannot cut down trees substance, or do anything thereon which may be
unless it be to restore or improve some of the things in prejudicial to the usufructuary. (Art. 581)
usufruct, and in such case shall first inform the owner
of the necessity for the work. The usufructuary of a part of a thing held in common shall
exercise all the rights pertaining to the owner thereof with
The usufructuary of an action to recover real property or
respect to the administration and the collection of fruits or
a real right, or any movable property, has the right to bring
interest. Should the co-ownership cease by reason of the
the action and to oblige the owner thereof to give him the
division of the thing held in common, the usufruct of the
authority for this purpose and to furnish him whatever
part allotted to the co-owner shall belong to the
proof he may have. If in consequence of the enforcement
usufructuary. (Art. 582)
of the action he acquires the thing claimed, the usufruct
shall be limited to the fruits, the dominion remaining with The right of the usufructuary is not affected by the
the owner. (Art. 578) division of the property in usufruct among the co-owners.
The usufructuary may make on the property held in OBLIGATIONS OF THE USUFRUCTUARY
usufruct such useful improvements or expenses for mere
The usufructuary, before entering upon the enjoyment of
pleasure as he may deem proper, provided he does not
the property, is obliged:
alter its form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove such (1) To make, after notice to the owner or his
improvements, should it be possible to do so without legitimate representative, an inventory of all the
damage to the property. (Art. 579) property, which shall contain an appraisal of the
movables and a description of the condition of the
Whenever the usufructuary can remove the improvements
immovables;
without injury to the property in usufruct, he has a right to
do so, and the owner cannot prevent him from doing so (2) To give security, binding himself to fulfill the
even upon payment of their value. This right, however, obligations imposed upon him. (Art. 583)
does not involve an obligation; If the usufructuary does
not wish to exercise it, he cannot be compelled by the The requirements as provided in Art. 583 are not
owner to remove the improvements. (2 Tolentino 330) conditions precedent to the commencement of the right of
the usufructary. But merely to the entry upon the
The reason why there is no indemnity under Article 579 possession and the enjoyment of the property. Even if
is that if the Improvements made by the usufructuary were they are not first complied with, the usufruct will
subject to indemnity, we would have a dangerous and commence according to its title, but the provisions of Art.
unjust situation in which the usufructuary could dispose 586 will apply with respect to the disposition of the
of the owner’s funds, by compelling him to pay for the property. (3 Sanchez Roman 574-575)
improvements which perhaps he would not have made. (2
Castan 237) Thus, the usufructuary may set-off the The law does not require the concurrence of the owner in
improvements from the damages he had caused instead as making of the inventory, it is sufficient for the
provided in Art. 580. usufructuary to notify him, and he may attend or not,
personally, or through an authorized representative.
The usufructuary may set off the improvements he may Should he did not attend and later on errors or omissions
have made on the property against any damage to the in the inventory were found out, he can ask to correct it
same. (Art. 580) It is necessary that the improvements provided, that he complied with the burden in proving the
should have increased the value of the property, and the omission or mistake. The expenses for making of the
damages are imputable to the usufructuary (2 Tolentino inventory are borne by the usufructuary, because it is his
331) obligation to make the inventory and it is a pre-requisite
to his entry upon the enjoyment of the property. (4
Thus, if the damages exceed the increase in value, the
Manresa 451-452)
difference should be paid by the usufructuary as

PROPERTY
RECITS-NOTES-CASES
The inventory may be in a public or a private instrument. Note: Majority of Filipino
(1 Bonet 263) commentators do not agree with this
point of view.
The provisions of No. 2 of Art. 583 shall not apply to the
donor who has reserved the usufruct of the property Should the usufructuary fail to give security in the cases
donated, or to the parents who are usufructuaries of their in which he is bound to give it, the owner may demand
children's property, except when the parents contract a that the immovables be placed under administration, that
second marriage. (Art. 584) the movables be sold, that the public bonds, instruments
of credit payable to order or to bearer be converted into
The usufructuary, whatever may be the title of the
registered certificates or deposited in a bank or public
usufruct, may be excused from the obligation of making
institution, and that the capital or sums in cash and the
an inventory or of giving security, when no one will be
proceeds of the sale of the movable property be invested
injured thereby. (Art. 585)
in safe securities. (Art. 586)
Instances where the usufructuary is excused from making
The interest on the proceeds of the sale of the movables
an inventory:
and that on public securities and bonds, and the proceeds
1. When the owner waives the giving of security or of the property placed under administration, shall belong
the making of an inventory; to the usufructuary. (id)
2. Where the title constituting the usufruct exempts
Furthermore, the owner may, if he so prefers, until the
the usufructuary from any or both of these
usufructuary gives security or is excused from so doing,
obligations.
retain in his possession the property in usufruct as
3. When the usufructuary asked to be relieved from
administrator, subject to the obligation to deliver to the
these obligations, and no one will be injured by
usufructuary the net proceeds thereof, after deducting the
such exemption.
sums which may be agreed upon or judicially allowed him
4. In cases of caution juratoria. (Art. 587)
for such administration. (id)
What if the usufructuary failed to make inventory?
If the usufructuary who has not given security claims, by
The Civil Code did not provide any effect. We virtue of a promise under oath, the delivery of the
have to source it from foreign laws then. furniture necessary for his use, and that he and his family
be allowed to live in a house included in the usufruct, the
There are two conflicting views in this case: court may grant this petition, after due consideration of
1. FIRST VIEW (Adopted by the facts of the case. (Art. 587)
Argentina) – such failure does not The same rule shall be observed with respect to
affect the rights of the usufructuary implements, tools and other movable property necessary
to enjoy the property and its fruits, for an industry or vocation in which he is engaged. (id)
but a prima facie presumption arises
that the property was received by If the owner does not wish that certain articles be sold
usufructuary in good condition and because of their artistic worth or because they have a
even if he is already in possession, he sentimental value, he may demand their delivery to him
may still be required to make an upon his giving security for the payment of the legal
inventory. The presumption arises interest on their appraised value. (id)
even when the usufructuary enter
After the security has been given by the usufructuary, he
upon the possession with the consent
shall have a right to all the proceeds and benefits from the
of the naked owner. (8 Llerena 123)
day on which, in accordance with the title constituting the
Tolentino submits that this
usufruct, he should have commenced to receive them.
consequence is the one acceptable in
(Art. 588)
the Philippines. (see 2 Tolentino 335)
2. SECOND VIEW (According to The effect of the security is retroactive. (2 Tolentino 337)
Sanchez Roman) – the effect of the
The usufructuary shall take care of the things given in
failure to make an inventory is that of
usufruct as a good father of a family. (Art. 589)
the failure to give security, and that
article 586 should apply. (3 Sanchez A usufructuary who alienates or leases his right of
Roman 575-576) usufruct shall answer for any damage which the things in

PROPERTY
RECITS-NOTES-CASES
usufruct may suffer through the fault or negligence of the of the usufructuary for all the time that the usufruct lasts.
person who substitutes him. (Art. 590) (Art. 596)
If the usufruct be constituted on a flock or herd of The taxes which, during the usufruct, may be imposed
livestock, the usufructuary shall be obliged to replace directly on the capital, shall be at the expense of the
with the young thereof the animals that die each year from owner. (Art. 597)
natural causes, or are lost due to the rapacity of beasts of
If the latter has paid them, the usufructuary shall pay him
prey. (Art. 591)
the proper interest on the sums which may have been paid
If the animals on which the usufruct is constituted should in that character; and, if the said sums have been advanced
all perish, without the fault of the usufructuary, on by the usufructuary, he shall recover the amount thereof
account of some contagious disease or any other at the termination of the usufruct.
uncommon event, the usufructuary shall fulfill his
If the usufruct be constituted on the whole of a patrimony,
obligation by delivering to the owner the remains which
and if at the time of its constitution the owner has debts,
may have been saved from the misfortune. (id)
the provisions of articles 758 and 759 relating to
Should the herd or flock perish in part, also by accident donations shall be applied, both with respect to the
and without the fault of the usufructuary, the usufruct maintenance of the usufruct and to the obligation of the
shall continue on the part saved. (id) usufructuary to pay such debts. (Art. 598)
Should the usufruct be on sterile animals, it shall be The same rule shall be applied in case the owner is
considered, with respect to its effects, as though obliged, at the time the usufruct is constituted, to make
constituted on fungible things. (id) Treat it a periodical payments, even if there should be no known
capital. (id)
The usufructuary is obliged to make the ordinary repairs
needed by the thing given in usufruct. (Art. 592) The usufructuary may claim any matured credits which
form a part of the usufruct if he has given or gives the
By ordinary repairs are understood such as are required
proper security. If he has been excused from giving
by the wear and tear due to the natural use of the thing and
security or has not been able to give it, or if that given is
are indispensable for its preservation. Should the
not sufficient, he shall need the authorization of the
usufructuary fail to make them after demand by the
owner, or of the court in default thereof, to collect such
owner, the latter may make them at the expense of the
credits. (Art. 599)
usufructuary. (id.)
The usufructuary who has given security may use the
Extraordinary repairs shall be at the expense of the owner.
capital he has collected in any manner he may deem
The usufructuary is obliged to notify the owner when the
proper. The usufructuary who has not given security shall
need for such repairs is urgent. (Art. 593)
invest the said capital at interest upon agreement with the
If the owner should make the extraordinary repairs, he owner; in default of such agreement, with judicial
shall have a right to demand of the usufructuary the legal authorization; and, in every case, with security sufficient
interest on the amount expended for the time that the to preserve the integrity of the capital in usufruct. (id)
usufruct lasts. (Art. 594)
The usufructuary of a mortgaged immovable shall not be
Should he not make them when they are indispensable for obliged to pay the debt for the security of which the
the preservation of the thing, the usufructuary may make mortgage was constituted. (Art. 600)
them; but he shall have a right to demand of the owner, at
Should the immovable be attached or sold judicially for
the termination of the usufruct, the increase in value
the payment of the debt, the owner shall be liable to the
which the immovable may have acquired by reason of the
usufructuary for whatever the latter may lose by reason
repairs. (id.)
thereof. (id)
The owner may construct any works and make any
The usufructuary shall be obliged to notify the owner of
improvements of which the immovable in usufruct is
any act of a third person, of which he may have
susceptible, or make new plantings thereon if it be rural,
knowledge, that may be prejudicial to the rights of
provided that such acts do not cause a diminution in the
ownership, and he shall be liable should he not do so, for
value of the usufruct or prejudice the right of the
damages, as if they had been caused through his own
usufructuary. (Art. 595)
fault. (Art. 601)
The payment of annual charges and taxes and of those
considered as a lien on the fruits, shall be at the expense
PROPERTY
RECITS-NOTES-CASES
The expenses, costs and liabilities in suits brought with If the usufructuary shares with the owner the
regard to the usufruct shall be borne by the usufructuary. insurance of the tenement given in usufruct, the
(Art. 602) former shall, in case of loss, continue in the
enjoyment of the new building, should one be
EXTINGUISHMENT OF USUFRUCT
constructed, or shall receive the interest on the
Artice 603 provides the grounds that would extinguish a insurance indemnity if the owner does not wish to
usufruct. They are as follows: (DEM-ReLo-TP) rebuild. (Art. 608)
1. By the Death of the usufructuary, unless a
Should the usufructuary have refused to contribute to
contrary intention clearly appears;
the insurance, the owner insuring the tenement alone,
2. By the Expiration of the period for which it was
the latter shall receive the full amount of the
constituted, or by the fulfillment of any resolutory
insurance indemnity in case of loss, saving always
condition provided in the title creating the
the right granted to the usufructuary in the preceding
usufruct;
article. (id)
3. By Merger of the usufruct and ownership in the
same person;
Should the thing in usufruct be expropriated for public
4. By Renunciation of the usufructuary;
use, the owner shall be obliged either to replace it with
5. By the total Loss of the thing in usufruct;
another thing of the same value and of similar conditions,
6. By the Termination of the right of the person
or to pay the usufructuary the legal interest on the amount
constituting the usufruct;
of the indemnity for the whole period of the usufruct. If
7. By Prescription.
the owner chooses the latter alternative, he shall give
If the thing given in usufruct should be lost only in part, security for the payment of the interest. (Art. 609)
the right shall continue on the remaining part. (Art. 604)
A usufruct is not extinguished by bad use of the thing in
Usufruct cannot be constituted in favor of a town, usufruct; but if the abuse should cause considerable injury
corporation, or association for more than fifty years. If it to the owner, the latter may demand that the thing be
has been constituted, and before the expiration of such delivered to him, binding himself to pay annually to the
period the town is abandoned, or the corporation or usufructuary the net proceeds of the same, after deducting
association is dissolved, the usufruct shall be extinguished the expenses and the compensation which may be allowed
by reason thereof. (Art. 605) him for its administration. (Art. 610)
A usufruct granted for the time that may elapse before a A usufruct constituted in favor of several persons living
third person attains a certain age, shall subsist for the at the time of its constitution shall not be extinguished
number of years specified, even if the third person until the death of the last survivor. (Art. 611)
should die before the period expires, unless such
Upon the termination of the usufruct, the thing in usufruct
usufruct has been expressly granted only in
shall be delivered to the owner, without prejudice to the
consideration of the existence of such person. (Art. 606)
right of retention pertaining to the usufructuary or his
If the usufruct is constituted on immovable property of heirs for taxes and extraordinary expenses which should
which a building forms part, and the latter should be be reimbursed. After the delivery has been made, the
destroyed in any manner whatsoever, the usufructuary security or mortgage shall be cancelled. (Art. 612)
shall have a right to make use of the land and the
materials. (Art. 607)
Hemedes v. CA
Hemedes v. CA
The same rule shall be applied if the usufruct is G.R. No. 107132; October 8, 1999; Third Division
constituted on a building only and the same should J. Gonzaga-Reyes
be destroyed. But in such a case, if the owner should
Facts: An unregistered parcel of land, identified as Lot
wish to construct another building, he shall have a
No. 6, plan Psu-111331, with an area of 21,773 square
right to occupy the land and to make use of the
meters, situated in Sala, Cabuyao, Laguna was originally
materials, being obliged to pay to the usufructuary,
owned by the late Jose Hemedes, father of petitioner and
during the continuance of the usufruct, the interest
Enrique D. Hemedes. On March 22, 1947 Jose Hemedes
upon the sum equivalent to the value of the land and executed a document entitled "Donation Inter Vivos With
of the materials. (id) Resolutory Conditions" whereby he conveyed ownership
over the subject land, together with all its improvements,

PROPERTY
RECITS-NOTES-CASES
in favor of his third wife, Justa Kauapin, subject to the issued in favor of R & B Insurance and/or the
following resolutory conditions: a)Upon the death or reconveyance to Dominium of the subject property. The
remarriage of the donee, the title to the property donated CFI ruled in favor of the private respondents. The CA
shall revert to any of the children, or their heirs, of the affirmed the decision.
donor expressly designated by the donee in a public
Issue: Is R&B Insurance a mortgagee in good faith?
document conveying the property to the latter; or b) In
absence of such an express designation made by the donee Ruling: Yes. It is a well-established principle that every
before her death or remarriage contained in a public person dealing with registered land may safely rely on the
instrument as above provided, the title to the property correctness of the certificate of title issued and the law
shall automatically revert to the legal heirs of the donor in will in no way oblige him to go behind the certificate to
common. Pursuant to the first condition above mentioned, determine the condition of the property. An innocent
Justa Kausapin executed on September 27, 1960 a "Deed purchaser for value is one who buys the property of
of Conveyance of Unregistered Real Property by another without notice that some other person has a right
Reversion" conveying to Maxima Hemedes the subject to or interest in such property and pays a full and fair price
property except the possession and enjoyment of the said for the same at the time of such purchase or before he has
property which shall remain vested to Justa Kausapin notice of the claim of another person. The annotation of
until she remarries or dies. Maxima Hemedes, through her usufructuary rights in favor of Justa Kausapin upon
counsel, filed an application for registration and Maxima Hemedes' OCT dose not impose upon R & B
confirmation of title over the subject unregistered land. Insurance the obligation to investigate the validity of its
Subsequently, an OCT was issued with the annotation that mortgagor's title. Usufruct gives a right to enjoy the
Justa Kausapin shall have the usufructuary rights over the property of another with the obligation of preserving its
parcel of land herein described during her lifetime or form and substance. The usufructuary is entitled to all the
widowhood. Maxima Hemedes and her husband Raul natural, industrial and civil fruits of the property and may
Rodriguez constituted a real estate mortgage over the personally enjoy the thing in usufruct, lease it to another,
subject property in its favor to serve as security for a loan or alienate his right of usufruct, even by a gratuitous title,
which they obtained in the amount of P6,000.00 to R&B but all the contracts he may enter into as such
Insurance. On February 22, 1968, R & B Insurance usufructuary shall terminate upon the expiration of the
extrajudicially foreclosed the mortgage since Maxima usufruct. Clearly, only the jus utendi and jus fruendi over
Hemedes failed to pay the loan even after it became due the property is transferred to the usufructuary. The owner
on August 2, 1964. The land was sold at a public auction of the property maintains the jus disponendi or the power
on May 3, 1968 with R & B Insurance as the highest to alienate, encumber, transform, and even destroy the
bidder and a certificate of sale was issued by the sheriff in same. This right is embodied in the Civil Code, which
its favor. Nevertheless, the annotation of the usufruct was provides that the owner of property the usufruct of which
maintained in the new title. In 1971, Justa Kausapin is held by another, may alienate it, although he cannot
executed a "Kasunduan" on May 27, 1971 whereby she alter the property's form or substance, or do anything
transferred the same land to her stepson Enrique D. which may be prejudicial to the usufructuary. There is no
Hemedes, pursuant to the resolutory condition in the deed doubt that the owner may validly mortgage the property
of donation executed in her favor by her late husband Jose in favor of a third person and the law provides that, in such
Hemedes. In 1979, Enriques D. Hemedes sold the a case, the usufructuary shall not be obliged to pay the
property to Dominium Realty and Construction debt of the mortgagor, and should the immovable be
Corporation (Dominium). On April 10, 1981, Justa attached or sold judicially for the payment of the debt, the
Kausapin executed an affidavit affirming the conveyance owner shall be liable to the usufructuary for whatever the
of the subject property in favor of Enrique D. Hemedes. latter may lose by reason thereof.
On May 8, 1981, Maxima Hemedes also wrote a letter
addressed to Asia Brewery wherein she asserted that she The annotation of usufructuary rights in favor of Justa
is the rightful owner of the subject property and that, as Kausapin is not sufficient cause to require R & B
such, she has the right to appropriate Asia Brewery's Insurance to investigate Maxima Hemedes' title, contrary
constructions, to demand its demolition, or to compel to public respondent's ruling, for the reason that Maxima
Asia Brewery to purchase the land. In another letter of the Hemedes' ownership over the property remained
same date addressed to R & B Insurance, Maxima unimpaired despite such encumbrance. R & B Insurance
Hemedes denied the execution of any real estate mortgage had a right to rely on the certificate of title and was not in
in favor of the latter. On August 27, 1981, Dominium and bad faith in accepting the property as a security for the
Enrique D. Hemedes filed a complaint with the CFI of loan it extended to Maxima Hemedes. It is a well-settled
Biñan, Laguna for the annulment of TCT No. 41985 principle that where innocent third persons rely upon the

PROPERTY
RECITS-NOTES-CASES
correctness of a certificate of title and acquire rights over in particular is a privilege constituted by covenant or
the property, the court cannot just disregard such rights. granted by law to a person or class of persons to pass over
Otherwise, public confidence in the certificate of title, and anothers property when his tenement is surrounded by
ultimately, the Torrens system, would be impaired for realties belonging to others without an adequate outlet to
everyone dealing with registered property would still the public highway. The owner of the dominant estate can
have to inquire at every instance whether the title has been demand a right of way through the servient estate
regularly or irregularly issued. Being an innocent provided he indemnifies the owner thereof for the
mortgagee for value, R & B Insurance validly acquired beneficial use of his property. (Quimen v. CA, [257 SCRA
ownership over the property, subject only to the 163])
usufructuary rights of Justa Kausapin thereto, as this
Easement vs Lease
encumbrance was properly annotated upon its certificate
of title. EASEMENT LEASE
Always a real right. Real right only when it is
Decision appealed from reversed.
registered or when the
lease of real property
exceeds one year.
There is rightful limited There is rightful and
TITLE VII. – EASEMENTS use without possession or limited use & possession
ownership. without ownership
Define easement. Only applies to May involve real or
An easement or servitude is an encumbrance imposed immovables (Par. 1 Art. personal property.
415)
upon an immovable for the benefit of another immovable
belonging to a different owner. (Article 613, Civil Code)
Easement vs. Usufruct
OTHER DEFINITIONS OF EASEMENT
An easement is a real right, constituting on the corporeal EASEMENT USUFRUCT
immovable property by another, by virtue of which the Only applies to May involve real or
owner of the latter has to refrain from doing it or to allow immovables. personal property.
that someone do something on his property for the benefit Easement is limited to Usufructuary gets the
of another thing or person. (2 Valverde 338) particular use of the thing. right to use and the right
to fruits of the property.
An easement or servitude is a real right, constituted on the There is rightful limited The usufructuary has the
corporeal immovable property of another, by virtue of use without possession or right to possess the
which the owner has to refrain from doing, or must allow ownership. property.
someone to do, something on his property, for the benefit Death of the dominant Death of a usufructuary
of another thing or person. (De la Cruz v. Ramiscal, 450 owner does not extinguish extinguishes a usufruct
SCRA 449 [2005] easement. unless there is a contrary
stipulation.
The elements of easement are as follows: (EIBA) Distinguish easement from servitude.
1. It is an Encumbrance or burden; Although the law used them interchangeably, easements
2. It is Imposed on an immovable property; and servitudes are different, to wit:
3. The encumbrance is for the Benefit of another
immovable property, of a community, or of one EASEMENT SERVITUDE
or more persons ; and English law term Roman law term
4. If it is for the benefit of another property, the Easement is always a real Servitude may be a real or
other property must be owned by Another owner. right. personal right.
An easement is a real right on another’s property,

corporeal and immovable, whereby the owner of the latter Who are the parties in easement?
must refrain from doing or allowing somebody else to do The parties in an easement are the owner of the dominant
or something to be done on his property, for the benefit of estate and the owner of the servient estate. The
another person or tenement. It is jus in re aliena, immovable in favor of which the easement is established
inseparable, indivisible and perpetual, unless
extinguished by causes provided by law. A right of way
PROPERTY
RECITS-NOTES-CASES
is called the dominant estate; that which is subject thereto, 7) It is Perpetual (N.B. Other authorities note that there
the servient estate. (Article 613, Civil Code) are easements which are not perpetual in nature. Note
that easements can be made by will of the parties.)
Note that there could be two or more dominant or servient
estates in easements. Additional from DE LEON: (RCP)
What are the different classifications of 8) It is a right limited by the needs of the dominant
easements? owner or estate, without possession.
9) It cannot consist in the doing of an act unless the act
They are as follows: is an accessory in relation to a real easement.
1) As to recipient of benefit: 10) It is not presumed.
a) Real – If the easement is in favor of an
immovable; or
b) Personal – If the easement is in favor of a Mr. Manalastas, can you now tell me the
community or one or more persons. It may be modes of Acquiring Easements
public or private.
Easements can be acquired in the following modes:
2) As to its source:
a) Voluntary – when the easement is established by a. By Title – All easements
will or agreement of the parties or by a testator; 1. Continuous, whether apparent or non-apparent
b) Legal – when it is created or imposed by law 2. Discontinuous, whether apparent or non-
either for public use or in the interest of private apparent;
persons; b. By Prescription of ten years – continuous and
c) Mixed – when it is created partly by will and apparent easements only;
partly by law c. By deed of recognition;
3) As to the manner of its exercise: d. By final judgment; and
a) Continuous – those the use of which is or may be e. By apparent sign established by owner of two
incessant, without the intervention of any act of adjoining estates.
man.
b) Discontinuous – those which are used at intervals How do you acquire easement through
and depend upon the acts of man. prescription?
4) As to physical existence
Easements may be acquired by virtue of prescription.
a) Apparent – those which are made known and are
Under Article 621,
continually kept in view by external signs that
reveal the use and enjoyment of the same. If the easement is positive – the prescriptive period would
b) Non-apparent – those which show no external run from the date the owner of the dominant estate or the
indication of their existence. user began to exercise it upon the servient estate.
5) As to the Duty of the servient owner
a) Positive – one which imposes upon the owner of If the easement is negative – the prescriptive period would
the servient estate the obligation of allowing run from the date the owner of the dominant estate had
something to be done or of doing it himself. forbidden by “notarial prohibition” the owner of the
b) Negative – one which prohibits the owner of the servient estate from executing the act which will impede
servient estate from doing something which he the rising of the easement – which act could be lawfully
could lawfully do if the easement did not exist. done were it not for the easement.
Ratio on Negative Easements acquirable by prescription:
What are the characteristics of an easement?
Negative easements may be considered “apparent”
PARAS: (RIJ-LIn-InP) because of the notarial prohibition sent to the owner of the
servient estate and not because of existing visible signs
1) It is a Real right.
indicating their presence. (2 Castan 288)
2) It is Imposed on another’s property.
3) It is a Jus in re aliena.
4) It is a Limitation or encumbrance on a servient estate
for another’s benefit.
5) It is Inseparable from the estate which it belongs.
6) It is Indivisible.

PROPERTY
RECITS-NOTES-CASES
Suppose that A is the dominant owner and B
is the servient owner. A demanded that an
easement of drainage be built in favor of his
estate. The drainage was built. Later on A built
a building over the drainage. Is that allowed?
No. Where the purpose if the easement or the manner or
mode of its title creating it, the exercise of the easement
must be consistent with such purpose or manner. (1
Capistrano 560)
Figure 9.
Thus, if the purpose of the easement is for drainage of
Refer to Figure 9. X owned a parcel of hilly waters, then A cannot build a building above the drainage
land. X sold Lot A to A. X then sold Lot B to B. for covering it with the building is inconsistent with such
B wants to build a tall building that A purpose or manner.
opposed, arguing that he already had Now what are the rights and obligations of
easement of light and view. Is A’s contention the Dominant estate and the Servient estate?
correct?
Rights of the Dominant Rights of the Servient
Yes. If one or both of them is alienated by the owner with Estate: Estate:
the result that the ownership thereof is divided, the a. To exercise the a. To retain ownership and
easement will continue actively and passively, unless the easement and all possession of the
contrary is stated in the deed of alienation of either of necessary rights for its portion of his land
use including accessory affected by the
them, or the sign is made to disappear before the
easement. (Art. 625). easement (Art. 630)
instrument is executed. The dominant owner can oppose b. To make on the servient even if indemnity for the
the owner of the servient estate from doing anything estate all works right is given, unless the
which would be inconsistent with the obligation to respect necessary for the use contrary has been
the easement. (Garganton v. Tan Yanon 108 Phil 888 and preservation of the stipulated.
[1960]) servitude, however, b. To make use of the
1. this must be at his easement, unless
It should be noted, however, that while the law declares own expense; deprived by stipulation
2. he must notify the provided that the
that the easement is to "continue" the easement actually
servient owner; exercise of the easement
arises for the first time only upon alienation of either 3. select convenient is not adversely affected
estate, inasmuch as before that time there is no easement time and manner; (Art. 630) and provided
to speak of, there being but one owner of both estates (Id.) 4. he must not alter further that he
the easement nor contributes to the
What are the requisites for Article 624 to render it more expenses in proportion
apply? burdensome. (Art. to benefits received,
627). unless there is a contrary
For Article 624 to apply the following are its requisites: c. To ask for a mandatory stipulation.(Art 628,
injunction to prevent par. 2)
1. There must be two estates belonging to one impairment or c. To change the location
owner; obstruction in the of a very inconvenient
2. The owner sold either or both of the two estates exercise of the easement easement provided that
as when the owner of an equally convenient
to different persons; the servient estate substitute is made,
3. There is an apparent visible easement (an obstructs the right of without injury to the
outward indication that the easement exists) way by building a wall dominant estate. (Art.
4. There arises an easement UNLESS: or fence. 629, par. 2).
i) There is a contrary agreement; or d. To renounce totally the
ii) The sign is removed; easement if he desires
exemption from
contribution to
expenses. (Art. 628).
Obligations of the Obligations of the
Dominant Estate: Servient Estate:
a. He cannot alter the
easement. (Art. 627).

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RECITS-NOTES-CASES
b. He cannot make it more a. He cannot impair the (1) Discontinuous easement – From the time
burdensome. (Art. 627). use of the easement. it ceased to be used;
1. He cannot use the (Art. 629, par.1). (2) Continuous easement – from the day an
easement except for b. He must contribute to
movable originally the expenses in case he act contrary to the same took pace.
contemplated. (Art. uses the easement,  The basis of non-use is presumptive
626). unless there is a contrary renunciation. The proof of non-use must be
2. In the easement of stipulation. (Art. 628, indubitable. (Benedicto v. CA)
right of way, he par. 2). 3. When either or both of the estates fall into such
cannot increase the c. In case of impairment,
agreed width of the to restore conditions to condition that the easement cannot be used; but it
path, nor deposit the status quo at his shall revive if the subsequent condition of the
soil or materials expense plus damages. estates or either of them should again permit its
outside of the d. To pay for the expenses use, unless when the use becomes possible,
boundaries agreed incurred for the change sufficient time for prescription has elapsed, in
upon but he may of location or form of
allow others to use the easement. (Art. 629,
accordance with the provisions of the preceding
the path (this really e. par. 2). number;
does not increase  This merely suspends since possibility of use
the burden) except revives the easement.
if the contrary has  However, if the impossibility of use goes
been stipulated.
(Valderrama v. beyond ten years or when the use becomes
North Negros permanently impossible (ex. farmland
Sugar Co., 48 Phil. flooded with lahar and volcanic ash), then the
492). easement is extinguished.
c. If there be several 4. By the expiration of the term or the fulfillment of
dominant estates, each
the condition, if the easement is temporary or
must contribute to
necessary repairs and conditional;
expenses in proportion  Applies only to voluntary easements.
to the benefits received 5. By the renunciation of the owner of the dominant
by each estate and not in estate;
proportion to the value
of each estate). (In the
 The renunciation or waiver must must be
absence of proof, we express, clear, and specific.
should presume the  Non-use does not give a presumption of
benefits to be equal). (4 waiver.
Manresa 650-651). 6. By the redemption agreed upon between the
owners of the dominant and servient estates.
How do you extinguish an easement?  Applies only to voluntary easements.
7. Other cases for extinguishment. (Not mentioned
1. By merger in the same person of the ownership of in the Civil Code)
the dominant and servient estates;  Some examples:
 The merger must be absolute, complete, not (1) Expropriation of the servient estate;
temporary. (4 Manresa 567) (2) Abandonment of the servient estate;
 If the sale is a new sale (not a pacto de retro (3) Annulment, rescission, or cancellation of
sale), no easement was created by a virtue of the title that constituted the easement.
the sale.
2. By nonuser for ten years; with respect to The form or manner of using the easement may prescribe
discontinuous easements, this period shall be as the easement itself, and in the same way. (Article 632,
computed from the day on which they ceased to NCC)
be used; and, with respect to continuous If the dominant estate belongs to several persons in
easements, from the day on which an act contrary common, the use of the easement by any one of them
to the same took place; prevents prescription with respect to the others. (Article
 Non-user refers to an easement that has once 633, NCC)
been used because one cannot discontinue
using what one has never used. (Francisco v.
Paez, 54 Phil. 239 [1930]).
 From what time to compute:
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RECITS-NOTES-CASES
Now let’s proceed to legal easement. What is without the intervention of man flow from the higher
it? estate, as well as the stone or earth which they carry with
them. The owner of the lower estate cannot construct
They are the easements imposed by the law, and which works which will impede this natural flow, unless he
have for their object — either for public use or the interest provides an alternative method of drainage.
of private persons. (Paras)
Thus, B cannot build a fence blocking the flow of waters,
Legal Easements are easements imposed or mandated by unless he made an alternative method of drainage.
law and which have for their object either public use or
the interest of private persons, and thereby become a Note that Article 637 has been repealed by the Water
continuing property right. (De leon) Code, before when the Water Code took effect, the
provision on the alternative method of drainage is absent.
Legal easements can be those of:
Note: Under Article 50 of the Water Code there are three
a. For public use; or easements, to wit:
b. For private interest.
1. The owner of the lower estate is bound to receive
What law would govern legal easements? waters from higher estates;
For legal easements for public or communal use, they are 2. The owner of the lower estate is not allowed to
governed by: make works that would impede the flow of
waters unless he made an alternative method of
1. Special laws and regulations. drainage; and
2. The Civil Code applies suppletorily. 3. The owner of the higher estate cannot make
works which will increase this natural flow.
For legal easements for private interests, they are
governed by: Distinguish Article 638 from Article 51 of the
1. Agreement of the parties provided not prohibited Water Code.
by law nor prejudicial to a third persons;
2. In the absence thereof, general or local code and
ordinances for the general welfare; and Article 51 repealed Article 638 of the Civil Code.
3. In the absence of both, the Civil Code
ARTICLE 638, CIVIL ARTICLE 51, WATER
CODE CODE
The banks of rivers and The banks of rivers and
streams, even in case they streams and the shores of
are of private ownership, the seas and lakes
are subject throughout throughout their entire
their entire length and length and within a zone
within a zone of three (3) of:
meters along their  three (3) meters in
margins, to the easement urban areas;
of public use in the  twenty (20) meters
general interest of: in agricultural
areas and
1. Navigation;  forty (40) meters in
2. Floatage; forest areas,
3. Fishing; and along their margins are
4. Salvage. subject to the easement of
public use in the interest
Figure. 10 Estates adjoining the of:
banks of navigable or 1. recreation;
Refer to Figure 10. A is the owner of a higher floatable rivers are, 2. navigation;
lot. B is the owner of the lower lot. Suppose furthermore, subject to the 3. floatage;
easement of towpath for 4. fishing; and
that B, to prevent rainwater from flowing in the exclusive service of 5. salvage.
his estate, made a fence. Is that allowed? river navigation and
floatage. No person shall be
No. Under Article 50 of the Water Code, the lower estates
are obliged to receive the waters which naturally and allowed to stay in this
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RECITS-NOTES-CASES
If it be necessary for such zone longer than what is 2. That the water is sufficient for intended use;
purpose to occupy lands necessary for recreation, 3. That the proposed right of way where the
of private ownership, the navigation, floatage, water would pass through is the most
proper indemnity shall fishing or salvage or to convenient and the least onerous to the
first be paid. build structures of any servient estates; and
kind. 4. That the indemnity is paid.
The absence of any one of these requisites would prevent
Do you steel need payment for indeminity the imposition of the easement.
under Article 51 of the Water Code?
The existence of an easement of right of way does not
No more. The last paragraph of Article 638 has been necessarily include the easement of an aqueduct. (San
removed. Rafael Ranch Co. v. Rogers Co., 154 C 76 p.1092)
Possible reason: The second paragraph of Article 50 of If the easement of an aqueduct is for PRIVATE interests,
the Water Code in fact prohibits the occupation of said it cannot be imposed on:
lands for use other than those which are enumerated
therein. 1. Buildings;
2. Courtyards;
What is an easement of drawing water and 3. Annexes or Outhouses;
watering animals? 4. Orchards; or
5. Gardens
Under Article 640, these two easements are personal
easements. They are for public use. It presupposes the Ratio: Allowing such would result to invasion of privacy
availability of water within the property of the servient of the premises of the owners thereof.
estate.
If the easement of aqueduct is for the benefit of the
- On easement of drawing water, the use of PUBLIC, it can be imposed on the said enumerated
the water is in favor of the general properties. Public Interest prevails over private interest.
community. (Pineda)
- On easement of watering animals, the use
of the water is in favor for the farm The owner of the servient estate may close or fence the
animals of the community. property or build something on the property provided that:
Note that this easement is only in favor of a town or a a. No damage would result to the aqueduct; and
village. They can only use the waters when an appropriate b. The repairs and cleaning shall not be rendered
indemnity has been paid to the servient owner. impossible.
This easement comes with an implied easement of right Under the law, an easement of an aqueduct is a continuous
of way, which the width, under Article 657, should not and apparent easement.
exceed 10 meters. NOTE: Obligations of the dominant owner:
What is an easement of an aqueduct? 1. To keep the aqueduct in proper use and care; and
Arts. 642-646 deals with the easement of an aqueduct. 2. To keep on hand necessary materials in use.
(Spanish law of waters)
An aqueduct is a conduit or artificial channel for
conducting water from a distance. What in an easement of stop lock and sluice
gate?
It is a right to make one’s water run and flow through
intervening estates for his own use. However, he is An easement if stop lock or sluice gate is one where the
obliged to pay indemnity to the intervening owners or dominant owner, upon indemnity, would be allowed to
owners of the lower estates where the water may build such lock or gate to another estate for the purposes
pass/descend through. (see Gonzales v. De Dios, 88 Phil of irrigation or improvement.
770) Requisites:
The owner of the dominant estate has to establish the 1. The purpose must be for irrigation or
following requisites: improvement;
1. That he can dispose of the water; 2. The construction must be on the estate of another;
PROPERTY
RECITS-NOTES-CASES
3. That the damages must be paid; and Inc., 154 SCRA 703, See Tolentino, Civil Code of the
4. That third persons should not be prejudiced Philippines, Vol. II, 2nd ed., 1972, p. 371)
Article 648. Where the easement may be established on any of several

tenements surrounding the dominant estate, the one where
Article 648 had already been repealed by Article 52 of the
the way is shortest and will cause the least damage should
Water Code.
be chosen. However, as elsewhere stated, if these two (2)
Article 52 of the Water Code states: circumstances do not concur in a single tenement, the way
which will cause the least damage should be used, even if
Article 52. The establishment, extent, form, and it will not be the shortest. (2 Castan 275)
conditions of easements of water not expressly
determined by the provisions of this Code shall be As between a right of way that would demolish a store of
governed by the provisions of the Civil Code. strong materials to provide egress to a public highway,
Other than those enumerated in Article 52, the Water and another right of way which although longer will only
Code is now the prevailing law on waters. require an avocado tree to be cut down, the second
alternative should be preferred. (Quimen v. CA, 257 SCRA
What is an easement of right of way? What 163)
are its requisites? Inasmuch as the easement is a legal or compulsory and
An easement of right of way is an easement or privilege not a mere voluntary easement, its existence does not
by which one person or a particular class of persons is depend on the consent of the co-owners. (Jariol v. CA,
allowed to pass over another’s land, usually thru one 117 SCRA 913)
particular path or line. (See Ballard v. Titus, 157 C 673).
Notwithstanding the lack of an annotation, a public
The term right of way may refer to: highway had already been a legal encumbrance on said lot
adjoining It because the street was already existing long
1. The easement itself; or before the issuance of the title. (see Velasco v. Cusi, Jr.,
2. To the strip of land used as a passageway. 105 SCRA 616)
(Anderson v. Wilseon, 48 CA 289, 191 P 1016)
(a) If the passage is permanent, the indemnity is
Requisites for the easement of right of way: equivalent of the value of land occupied by the path
1. The dominant estate must be surrounded by plus damages.
other immovables, and which has no (b) If temporary, the indemnity is equivalent of the
adequate outlet to a public highway; the damages caused.
2. There must be payment of proper indemnity;
3. The isolation must not be due to the If the isolation was due to the acts of the owner of the
proprietor’s own acts; and dominant estate, the easement is not compulsory.
4. The right of way claimed is at point least
If the outlet to a highway is through water, like a river,
prejudicial to the servient estate, and insofar
and the same is not dangerous to cross not do they pose
as consistent with this rule, the distance of the
grave inconvenience, the right of way should not be
dominant estate to a public highway may be
granted. Otherwise, if such is dangerous and to build a
the shortest. (Francisco v. IAC, 177 SCRA
bridge would be expensive, a right of way is grantable.
527)
(Pineda)
Because the parties did not agree on this matter and
The width of the pathway may be adjusted to meet the
neither was a hearing conducted thereon, verily, the lower
needs of the dominant owner but always subject to the
court may not arrogate upon itself the right to fix said
rule that the rights of the servient owner are not abused.
compensation as well as the amount of damages for the
crops and other improvements that may have to be Where the dominant owner was granted the right of way
destroyed to give effect to the easement. (Mascariña, et (footpath), he cannot be denied the use of car. In this age,
al. v. Eastern Quezon College, et al., G.R. No. L-48974, the dominant owner has a right to demand a driveway for
November 29, 1988) his car, and not just a mere lane or pathway. (Larracas v.
Del Rio, 37 O.G. 287)
The mere convenience for the dominant estate is not
enough to serve as its basis. To justify the imposition of
this servitude, there must be a real, not a fictitious or
artificial, necessity for it. (Ramos v. Gatchalian Realty
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RECITS-NOTES-CASES
Who pays necessary repairs?
The dominant estate should pay for:
1. Repairs; and
2. Proportionate share of taxes to the servient
estate
The servient estate is responsible for the payment of taxes
of the estate, for after all, he is still the owner of the
property
Figure 11.
How do you extinguish the right of way?
Refer to Figure 11. A and C were siblings.
Suppose that the parcel of land co-owned by Right of way may be extinguished by:
A and C was partitioned. Can A demand a new 1. Opening of a new road;
easement against E? 2. Joining the dominant estate to another, which
No. A cannot demand a right of way against E. The abuts, and therefore has access to the public
established rule is that the easement of right of way shall highway.
be established at the point least prejudicial to the servient NB: The new access must be adequate and convenient.
estate. In this case, the existing easement to C and E
would cause lesser prejudice to the servient owners than The extinguishment of right of way is not automatic,
opening a new easement which would be prejudicial to because the law says that the servient owner “may
the use of E’s property. The rule on distance is merely demand.’’ It follows that if he chooses not to demand, the
permissive. The rights of the servient owner in using the easement remains and he has no duty to refund the
property must be respected. indemnity. (4 Manresa 751).
This article applies only to the legal or compulsory
easement of right of way, NOT to a voluntary one. (Duran
Suppose that A and C went into an and Villaroman v. Ramirez and Escolar, [CA] G.R. No.
altercation. Now, can A demand E to 1824-R, June 27, 1949; 47 O.G. 4247).
open up a new right of way? If the easement is temporary, the indemnity does not have
Still no. A may still demand right of way from C and E by to be returned since the damage had already been caused.
traversing the old path for opening a new right of way
directly to the road would be prejudicial to E’s use of his
You say indemnity. What do you mean with
property. regard with right of way?
If the servient owner demanded the extinguishment of the
What are the rules in right of way with respect
easement, he must return what he may have received by
to Article 652 and 653? What if there was way of indemnity.
donation instead?
However, the interest on the indemnity shall be deemed
Whenever a piece of land acquired by: to be in payment of rent for the use of the easement.
1. Sale;
What does Article 656 mean?
2. Exchange; or
3. Partition, Under Article 656, it provides for the temporary easement
of right of way. The servient owner is obliged, after
Is surrounded by other estates of the vendor, exchanger, receipt of the proper indemnity, to allow the passage of
or co-owner, he shall be obliged to grant a right of way construction materials on his land to the construction site,
without indemnity. or to the building under repair or renovation, or to allow
In case of a simple donation, the donor shall be the raising of the scaffoldings or other objects necessary
indemnified by the donee for the establishment of the for the work. (Pineda)
right of way. The phrase “indispensable” under this article should not
If the enclosed estate is that of the grantor (Except Donor), be construed literally. It is enough that there is
the grantor must pay indemnity. inconvenience to be suffered without the establishment of
the easement. (Tolentino)
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RECITS-NOTES-CASES
Now tell me about the rules on the right of (3) In fences, walls and live hedges dividing rural
way regarding on the passage of livestock. lands
The easement of right of way for Unless there is:
(1) The passage of livestock; and 1. a title; or

(2) For watering and resting places of animal 2. exterior sign; or
folds- 3. proof to the contrary
Are governed by ordinances and regulations in the place. Some instances when no such presumption exists:
In the absence of such, the usages and customs of the
(1) Whenever in the dividing wall of buildings there
place would apply.
is a window or opening;
Maximum width: (2) Whenever the dividing wall is, on one side,
straight and plumb on all its facement, and on the
(1) Animal Path – 75 meters other, it has similar conditions on the upper part,
(2) Animal Trail – 37.5 meters but the lower part slants or projects outward;
(3) Cattle – 10 meters (3) Whenever the entire wall is built within the
What is an easement of a party wall? What boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of
governs it? the binding beams, floors and roof frame of one of
Easement of party wall refers to all those mass of rights the buildings, but not those of the others;\
and obligations emanating from the existence and (5) Whenever the dividing wall between courtyards,
common enjoyment of wall, fence, enclosures, or hedges, gardens, and tenements is constructed in such a
by the owners of adjacent buildings and estates separated way that the coping sheds the water upon only one
by such subjects. (2 Castan 532) of the estates;
(6) Whenever the dividing wall, being built of
A party wall is a common wall that separates two estates masonry, has stepping stones, which at certain
built by common agreement at the dividing line such that intervals project from the surface on one side only,
it occupies a portion of both estates on equal parts. but not on the other;
Although listed in easements, a party wall is a co- (7) Whenever lands inclosed by fences or live hedges
ownership for: adjoin others which are not inclosed.
1. Each owner owns part of the wall but it Note that the enumeration is not exclusive.
cannot be separated from other portions
belonging to others; and What is the presumptions under Article 661?
2. A co-owner may use the party wall to the
Under Article 661, ditches or drains opened between two
extent of his portion of his property.
estates are also presumed as common to both, if there is
Easement of party wall shall be governed by: no title or sign showing the contrary.
a. The provisions of Title VII, Civil Code; There is a sign contrary to the co-ownership whenever:
b. Local ordinances;
1. The earth or dirt removed to open the ditch; or
c. Customs insofar as they are not in conflict with
2. To clean it is only on one side thereof,
the Code and the ordinances; and
d. The rules of co-ownership. In which case the ownership of the ditch shall belong
exclusively to the owner of the land having this exterior
What are the presumptions in easement of a sign in its favor.
party wall? What disputes such
presumptions? What are the rules on repairs in easement of
a party wall? Can one renounce his right over
The existence of a party wall is presumed in:
the party wall?
(1) In dividing walls of adjoining buildings up to the
Under Article 662, the cost of repairs and construction of
point of common elevation;
party walls and the maintenance of fences, live hedges,
(2) In dividing walls of gardens or yards situated in
ditches, and drains owned in common, shall be borne by
cities, towns, or in rural communities;
all the owners of the lands or tenements having the party
wall in their favor, in proportion to the right of each.
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RECITS-NOTES-CASES
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-
ownership, except when the party wall supports a building
belonging to him.
The renounciation of part ownership must be total. (4
Manresa 784)
If the owner of a building, supported by a party wall
desires to demolish the building, he may also renounce his
part-ownership of the wall. However, the cost of:
1. all repairs; and
2. work necessary to prevent any damage which the
demolition may cause to the party wall,
Shall be borne by such owner who demolished the
building. Note that the liability of such owner for damages
is limited to those damages suffered simultaneously,
during, or immediately after, and by reason of the Figure 12.
demolition. (2 Sanchez Roman 627)
Refer to Figure 12. A and B’s buildings were in
Every owner may increase the height of the party wall: a wall-to-wall situation. Suppose that A
1. At his own expense;
opened a new window. Can B ask for the
2. After indemnifying the damages caused by the closure of the window?
work, even though such damage is temporary; Yes. Since the easement of light and view is a continuous
3. He must bear the cost of maintaining the portion and apparent easement, B can close it at anytime before
added; and the ten-year prescriptive period has lapsed.
4. He must pay the increased cost of preservation of
the wall. How about if B would build a new
storey after 10 years? Is that allowed?
However, if the party wall cannot bear the increased
height, the owner desiring to raise it shall be obliged to: No. For A has already acquired the easement of light and
view by prescription of 10 years, counted from the
1. Reconstruct it at his own expense; and opening of the window since this is positive easement. A
2. If for this purpose it be necessary to make it window on a party wall is something allowed by a co-
thicker, he shall give the space required from his owner to be done on his own property owned in common
own land. and may therefore give rise to a positive easement or
The other owners may acquire part ownership in the easement of sufferance. (Paras)
increased height, depth, thickness by paying
But can B still use the wall?
proportionally
With respect to the party wall, B can still use it in
1. The value of the work at the time of the proportion to the right he may have in the co-ownership,
acquisition; and without interfering with the common and respective uses
2. The land used for its increased thickness. by the other co-owners. (Article 666)
But with respect to the increased height, no more for first,
A had acquired an easement of light and view already, and
even if it falls within the prescriptive period, B did not pay
A for the increased thickness of the wall. Thus, no.
What is an easement of light and view?

An easement of light (jus luminum) is the right to admit
light from the neighboring estate by virtue of the opening
of a window or the making of certain openings. (2 Castan
536)
PROPERTY
RECITS-NOTES-CASES
An easement of view (jus prospectus) is the right to make were a service only, but as his own property." Coexistent
openings or windows, to enjoy the view through the estate with this right is the right of the owner of the adjacent
of another and the power to prevent all constructions and property to cover up such windows by building on his
works which would obstruct such view or make the same own land or raising a wall contiguously to the wall in
difficult. (id.) which the windows are opened, by virtue of the
reciprocity of rights which should exist between abutting
Explain the period of prescription, why is it owners, and which would cease to exist if one could do
different? what he pleased on his property and the other could not
The period of prescription for the acquisition of an do the same on his. Hence it is that the use of the windows
easement of light and view shall be counted: opened in a wall of one's own property, in the absence of
some covenant or express agreement to the contrary, is
1. From the time of the opening of the window, regarded as an act of mere tolerance on the part of the
if it is through a party wall; or owner of the abutting property, and does not create any
2. From the time of the formal prohibition upon right to maintain the windows to the prejudice of the
the proprietor of the adjoining land or latter. ( id.)
tenement, if the window is through a wall on
the dominant estate. The mere toleration of such an act does not imply on the
part of the abutting owner a waiver of his right to freely
On the first instance, the easement is a positive easement. build upon his land as high as he may see fit, nor does it
A party wall is not for building of windows. Its purpose is avail the owner of the windows for the effects of
to support the buildings of the part-owners. When a possession because it is a mere possession at will. From
window is created through a party wall, an apparent and all this it follows that the easement of light with respect to
continuous easement is created from such opening. (De the openings made in one's own edifice does not consist
Leon) precisely in the fact of opening them or using them,
inasmuch as they may be covered up at any time by the
The adjoining owner can order the closure of the window
owner of the abutting property, and, as Manresa, "there is
within ten years from the opening of the window.
no true easement as long as the right to impede its use
On the second instance, the easement is a negative exists." The easement really consists of in prohibiting or
easement. In this case, under Article 621, there must be a restraining the adjacent owner from doing anything which
notarial prohibition upon the adjoining owner. may tend to cut off or interrupt the light; in short, it is
limited to the obligation of not impeding the light (ne
A building may receive light in various manners in the luminibus officiatur). The latter coincides in its effects,
enjoyment of an easement of light, because the openings from this point of view, with the obligation of refraining
through which the light penetrates may be made in one's from increasing the height of a building (altius non
own wall, in the wall of one's neighbor, or in a party wall. tollendi), which, although it constitutes a special
The legal doctrine applicable in either one of these cases easement, has for its object, at times, the prevention of
is different, owing to the fact that, although anyone may any interruption of the light enjoyed by the adjacent
open windows in his own wall, no one has a right to do so owner. (id.)
in the wall of another without the consent of the owner,
and it is also necessary, in accordance with article 580 Explain the rules regarding on the light and
(667) of the Civil Code, to obtain the consent of the other view regarding on windows as provided in
coowner when the opening is to be made in a party wall. Arts. 669-673.
(Cortes v. Yu-Tibo, G.R. No. 911 [1903])
Under Article 670, it requires a distance of:
When a person opens windows in his own building he
does nothing more than exercise an act of ownership a. two meters for direct view windows; and
inherent in the right of property, which empowers him to b. sixty centimetres for indirect/oblique view.
deal with his property as he may see fit, with no The distance, as provided in Article 671, shall be
limitations other than those established by law. By reason measured:
of the fact that such an act is performed wholly on a thing
which is wholly the property of the one opening the FOR DIRECT VIEW: from the outer line of the wall
window, it does not in itself establish any easement, when the openings do not project – to the dividing line
because the property is used by its owner in the exercise between the two properties.
of dominion, and not as the exercise of an easement: "For
FOR OBLIQUE VIEW: from the boundary line – to the
a man, should not use that which belongs to him as if it
nearest edge of the window.
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RECITS-NOTES-CASES
It is permissible to build even up to the boundary line The object of the law in authorizing the opening of the
provided that no regular windows are opened. When the windows in question in all the stories of a building,
windows are opened without observing the required legal without any exception, is clear. Their purpose is to furnish
distances, the adjoining owner has a right to have them light to the rooms, and it is evident at a glance that the
closed for non-observance of the rule would not give rise rooms of the lower stories have as much need for light as
to the servitude by prescription. those of the top story. No good reason exists for having
one story in better condition than another, whichever it
However, since Article 670 refers to a negative easement,
may be, connection with this provision of law. (Choco v.
a notarial prohibition is required for prescription to settle
Santamaria, G.R. No. 6076 [1911])
in. Thus, the cause of action does not accrue to the mere
opening of a window. Explain the provisions related to the
Under Article 672, the distance provided in Article 670 is easement of drainage of buildings.
not compulsory where there is a public way or alley Easement of drainage of buildings is the right to divert or
provided that it is not less than three meters wide. empty the rain waters from one’s own roof or shed to the
However, the width may be subject to regulations and neighbor’s estate either drop by drop or by conduits. (2
local ordinances. (De Leon) A private alley opened for the Castan 539)
use of general public falls within the provision of Article
672. Under Article 674, the owner of a building is obliged to
construct its roof or covering in such manner that the rain
Article 673 imposes a true easement. The title under water shall fall on his own land or on a street or public
Article 673 refers to any of the modes acquiring place, and not on the land of his neighbor, even though
easements. the adjacent land may belong to two or more persons, one
of whom is the owner of the roof.
Under Article 673, whenever the easement of direct view
has been acquired in any title, the owner of the servient Even if it should fall on his own land, the owner shall be
estate cannot build thereon at less than a distance of three obliged to collect the water in such a way as not to cause
meters from the boundary line. damage to the adjacent land or tenement.
Such distance may be modified provided that the The distances prescribed should not correspond to the
minimum distance as provided in Article 670 are width and length of the roof of the house but to the
observed. Otherwise, it is void for it is contrary to public distance of the rain water falling inside the land of another
policy and general welfare. (See I Capistrano 588) because the encumbrance is not the roof itself but the rain
water falling inside the property of another. (Purugganan
Article 669 would apply if the measurements provided in
v. Paredes, G.R. L-23818 [1976])
Article 670 were not observed.
Under Article 675, the owner of a tenement or a piece of
Under Article 669, When the wall is not a party wall, the
land, subject to the easement of receiving water falling
owner of the wall may make an opening for the purpose
from roofs, may build in such manner as to receive the
of admitting light and air but not for view. The restrictions
water upon his own roof or give it another outlet in
are as follows:
accordance with:
1. The size must not exceed 30 sq.cm.
1. local ordinances; or
2. The opening must be at the height of ceiling
2. customs
joists or immediately under the ceiling;
3. There must be an iron grating embedded with In such a way as not to cause any nuisance or damage to
the wall; and the dominant estate.
4. It must be wire-screened.
Article 675 deals with voluntary easement to receive
However, if the wall becomes a party wall, the part owner rainwater falling from the roof on an adjoining building.
may order the closure of the opening or obstruct the same
UNLESS such easement has been acquired by Under Article 676, the easement of drainage may be
prescription, in which case the servient owner may not demanded subject to the following conditions:
impair the easement. (De Leon) 1. The yard or court of a house must be
If a house consists of more than one storey, each storey surrounded by other houses;
may have the same openings which are provided by law 2. There must be no adequate outlet to the
for one house. rainwater;

PROPERTY
RECITS-NOTES-CASES
3. The outlet to the water must be at the point the therein. The roots of the trees, though invasive, belongs to
egress is the easiest, and establishing a conduit the owner of the invaded estate.
for drainage; and
The rights given to the adjoining owner under Article 680
4. The indemnity must be paid.
do not prescribe by inaction unless a notarial prohibition
Explain the provisions related to the is made. Likewise, the owner of the adjoining estate has
easement of intermediate distances. no right to cut the branches of the trees by himself.
(Pineda) This is in consonance with the principle that no
Under Article 677, an easement is established in favor of one may take the law in his own hands.
the state for no constructions can be built or plantings be
made near fortified places or fortresses. This is in Article 681 provides the provision regarding on the rule
consonance with the interests of national security. on falling fruits. This is not a true easement. Fruits that
naturally fall over the adjacent land shall belong to the
However, such is allowed provided that the the conditions owner of the adjacent land. This rule is not based on
required in special laws, ordinances, and regulations occupation for the fruits are not res nullius, nor on
relating thereto are complied with. accession, but the mode of acquisition under this article is
Under Article 678, no person shall build any aqueduct, to be of law. The purpose of the law is to avoid suits
well, sewer, furnace, forge, chimney, stable, depository of arising from the same due to conflicting question of
corrosive substances, machinery, or factory which by ownership.
reason of its nature or products is dangerous or noxious Suppose that a fruit-bearing tree in A’s lot
unless the distances prescribed by 1) regulations, or 2)
customs are complied with.
had a branch that overarched to B’s lot. B used
a “sungkit” to gather fruits from the
The owner is likewise obliged to take the necessary overarching branches. Who would own the
protective works or other precautions prescribed by such fruits?
regulations to avoid damage to neighbouring estates.
A would still own the fruits. Under the law, the fruits
The provisions under Article 678 cannot be altered or would only be owned by B if they naturally fall in his
waived by stipulations because they involve estate. Moreover, B can be convicted with theft of fruits.
considerations of public policy or general welfare. (See 1
Capistrano 598) What is an easement against nuisance?
Under Article 679, no trees shall be planted near a On nuisance, see notes on nuisance.
tenement or piece of land belonging to another except at
This easement is a negative easement because the
the distance authorized by:
proprietor or possessor is prohibited to do something
1. Ordinances; or which he could lawfully do were it not for the existence
2. Customs of the place; and of the easement.
3. In the absence thereof, at a distance of at least:
The proprietor or possessor of the building or piece of
a. Two meters from the dividing line of the
land, who commits the nuisance thru noise, jarring,
estates if tall trees are planted; or
offensive odor, etc. is servient in an easement against
b. Fifty centimetres if shrubs or small trees
nuisance; in another sense, the building or the land itself
are planted.
is the servient estate, since the easement is inherent in
Article 679 is a negative easement. In case of violation, every building or land. (Report of the Code Commission,
every landowner shall have the right to demand that trees 51)
hereafter planted at a shorter distance from his land or
The dominant in this easement is the general public, or
tenement be uprooted. The right shall apply likewise to
anyone injured by such nuisance.
trees and shrubs that grew spontaneously.
Easement against nuisance is not really an easement. This
Under Article 680, in cases that the branches of a tree
easement is created by law and is inherent in every land.
overarched over the estate of another, the adjoining owner
It is a proper limitation upon ownership. It is a
must demand that the branches be cut-off by the owner of
manifestation of the principle that every person should so
the tree. However, with respect to the roots, the adjoining
use his property as not to cause damage or injury to others.
owner may cut it off by himself for under the principle of
(id.)
accession, the owner of the land owns all the accessions

PROPERTY
RECITS-NOTES-CASES
Explain the provisions related to the Explain the provisions on voluntary
easement of lateral and subjacent support. easements.
Recall that owner of a parcel of land is the owner of its Under Article 688, the owner has the right to enjoy and
surface and of everything under it, and he can construct dispose the thing subject to the limitations established by
thereon any works or make any plantations and law. Thus, every owner of a tenement or piece of land may
excavations which he may deem proper, without establish thereon the easements which he may deem
detriment to servitudes and subject to special laws and suitable, and in the manner and form which he may deem
ordinances. One of the limitations imposed by law is an best, provided such is not contrary to:
easement of lateral and subjacent support.
1. Laws;
No proprietor shall make such excavations upon his land 2. Public policy or
as to deprive any adjacent land or building of sufficient 3. Public order.
lateral or subjacent support. The objective is to maintain
Voluntary easements are NOT CONTRACTUAL in
the exact position of the adjoining tenements despite the
nature for they constitute an act of the owner. Only the
excavation works.
owner or someone else, in the name of and with the
Lateral support – is the support on the vertical side of the authority of the owner, may establish a voluntary predial
land, the removal of which may cause the land to crumble servitude on his estate, for this is an act of ownership.
or slide. (Pineda) (However so as not to prejudice the usufructuary, the
usufructuary’s consent is needed to create a “perpetual,
Subjacent support – is the horizontal support underneath
voluntary easement.’’ (see 2 Falcon 257).
a land or building the removal of which may cause the
sinking or crumbling of the land or building. (Pineda) If he exacts any condition, like the payment of a certain
indemnity for the use of the easement, any person who is
Should there be infraction, the remedies of the adjoining
willing to pay it may make use of the easement. If the
owners against dangerous excavations are:
contention be made that a contract is necessary, it may be
1. Injunction – before the excavation have been stated that a contract exits from the time all those who
consummated. Note that the injunction desire to make use of the easement are disposed to pay the
should not be too broad. It must cover only required indemnity. (North Negros Sugar Co. v. Hidalgo,
such excavation with potentiality to cause the G.R. No. L-4234 [1936])
removal, or attenuation of the support that
If a person is an owner with a resolutory title or an
keeps the property intact in its place.
annullable one, he can create an easement over the
(Pineda); and
property, but it is deemed extinguished upon resolution or
2. Claim for damages for the injuries sustained.
annulment of the right. (4 Manresa 836). The same may
– The defendant need not be the owner of the
be said of an easement created in good faith by the will
property excavated. (See Green v. Berge, 105
merely of the usufructuary or possessor in good faith.
Cal. 52)
Such easement naturally ends, when the usufruct or
Any stipulation or testamentary provision allowing possession terminates. (2 Falcon 257). From one
excavations that cause danger to an adjacent land or viewpoint, what had been granted was not really an
building shall be void. The reason is public safety. easement but merely a personal right. (4 Manresa 837)
The easement shall apply for present and future An owner of a subdivision may validly insert on its
constructions. contracts selling the lots to private owners a prohibition
that the buyers cannot build factories thereon. In a sense
Any proprietor intending to make any excavation this is an easement, and makes evident the intent to make
contemplated must give notice to all owners of adjacent the subdivision a residential zone. This is a valid
lands. contractual provision which, while it restricts the free use
Giving notice to the adjacent owners is merely an of the land by the owner is nonetheless not contrary to
additional precaution. It is not a substitute for one’s duty public policy. (Trias v. Araneta, L-20786 [1965])
to exercise reasonable care to avoid injury to the adjacent Under Article 689, the naked owner may create easements
lands and buildings. (Walker v. Stronider, 67 W. Va. 67 thereon without the consent of the usufructuary provided
S.E. 1087) that such will not injure the right of usufruct.

PROPERTY
RECITS-NOTES-CASES
Under Article 690, the usufructuary is allowed to make a Fajardo Jr. v. Freedom to Build, Inc.
voluntary temporary easement. However, if the easement
Fajardo Jr. v. Freedom to Build Inc.
is perpetual, the consent of BOTH the naked owner and
G. R. No. 134692; August 1, 2000; Third Division
the usufructuary is required.
J. Vitug
Under Article 691, to constitute a voluntary easement on
a co-owned property, the consent of ALL the co-owners Facts: Freedom to Build Inc., sold to petitioner-spouses a
are required. The reason is such is an act of alteration and house and lot in the De La Costa Homes. The Contract to
an act of ownership. Generally, the consent is irrevocable sell contained a Restrictive Covenant providing certain
UNLESS such consent was vitiated. prohibitions. The restrictions were also contained in
Transfer Certificate of Title No. N-115384 covering the
The consent given by some only, must be held in lot issued in the name of petitioner-spouses. The
abeyance until the last one of all the co-owners shall have controversy arose when the petitioners despite repeated
expressed his conformity. But the consent given by one of demands from the respondent, extended the roof of their
the co-owners separately from the others shall bind the house to the property line and expanded the second floor
grantor and his successors not to prevent the exercise of of their house to a point directly above the original front
the right granted. wall. Respondent filed before the RTC an action to
Under Article 692, the relation of the dominant and the demolish the unauthorized structures.
servient estate in so far their rights are concerned are
The RTC rendered a judgment against the petitioner
governed by:
ordering them to immediately demolish and remove the
1. Title which constituted the easement; and extension of their expanded housing unit that exceeds the
2. Manner and form of the possession, if it was limitations imposed by the Restrictive Covenant,
acquired thru prescription. otherwise the Branch Sheriff of this Court will execute
3. The Civil Code shall apply suppletorily. this decision at the expense of the defendants. On appeal,
the CA affirmed the decision of the RTC.
In the absence of 1 and 2, the Civil Code shall apply.
Under Article 693, if the owner of the servient estate Issues:
should have bound himself to bear the cost of the work
1. Are restrictive covenants easements?
required for the use and preservation thereof upon the
2. Are the restrictive covenants valid?
establishment of the easement, he may free himself from
this obligation by renouncing his property to the owner of Ruling:
the dominant estate.
In the contract or title, the servient owner may have or 1. No. Restrictive covenants are not, strictly
speaking, synonymous with easements. While it
may not have bound himself to pay for the maintenance
may be correct to state that restrictive covenants
(use and preservation) of the easement. The article applies on the use of land or the location or character of
only when he has so bound himself. (Paras) buildings or other structures thereon may broadly
If the servitude is upon the whole estate, the whole be said to create easements or rights, it can also
be contended that such covenants, being
property must be renounced. (2 Navarro Amandi 343-
limitations on the manner in which one may use
344)
his own property, do not result in true easements,
If the servitude affects only a part of the estate, then only but a case of servitudes (burden), sometimes
that part affected by the easement — the passageway characterized to be negative easements or
should be renounced. This is true even if it is well-known reciprocal negative easements. Negative
easement is the most common easement created
that the easement is indivisible. The lawmaking body
by covenant or agreement whose effect is to
could not have intended otherwise. (Paras)
preclude the owner of the land from doing an act,
The one who would abandon his rights must comply with which, if no easement existed, he would be
the proper juridical form for the transmission of the entitled to do.
ownership of real property. Hence implied or tacit 2. Yes. The provisions in a restrictive covenant
prescribing the type of the building to be erected
abandonment cannot be allowed. (4 Manresa 843)
are crafted not solely for the purpose of creating
easements, generally of light and view, nor as a
restriction as to the type of construction, but may
also be aimed as a check on the subsequent uses
PROPERTY
RECITS-NOTES-CASES
of the building conformably with what the owners of the land on which the connecting Tudtud road
developer originally might have intended the is found. It is not possible to determine whether the estates
stipulations to be. Viewed accordingly, the which would be least prejudiced by the easement would
statement of petitioners that their immediate be those of the owners of the Opone and Tudtud
neighbors have not opposed the construction is properties because they have not been heard. Although
unavailing to their cause, the subject restrictive evidence concerning the condition of their estates has
covenant not being intended for the benefit of
been presented by private respondents, it is impossible to
adjacent owners but to prescribe the uses of the
determine with certainty which estate would be least
building to prevent overcrowding and promote
privacy among subdivision dwellers. The prejudiced by the establishment of an easement for
argument then of petitioners that expansion is petitioner until these parties have been heard. Any
necessary in order to accommodate the individual decision holding them liable to bear the easement would
families of their two children must fail for like not be binding on them since they are not parties to this
reason. Nor can petitioners claim good faith; the action.
restrictive covenants are explicitly written in the
Contract to Sell and annotated at the back of the This is the reason why the case has been ordered
Transfer Certificate of Title. remanded for further proceedings.
Case remanded.
Almendras v. CA
Almendras v. CA
G.R. No. 110067; August 3, 1998; Second Division
J. Mendoza TITLE VIII. – NUISANCE
Facts: Private respondents seek a reconsideration of the
same decision rendered by the Court in 1997 remanding
NOTES ON NUISANCE
the case to the trial court. They contend that the Court
should have dismissed the complaint in view of its finding A nuisance is any act, omission, establishment, business,
that petitioner failed to prove that she has a right to the condition of property, or anything else which: (IASOH)
establishment of such an easement through private
(1) Injures or endangers the health or safety
respondents’ property.
of others; or
Issue: Is the contention of the respondents correct? (2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or
Ruling: No. While it is undisputed that a right of way morality; or
through private respondents’ property is the shortest (4) Obstructs or interferes with the free
distance to the provincial road, there is no proof that passage of any public highway or street,
making the easement pass that way will cause the least or any body of water; or
damage as provided in Art. 650 of the Civil Code. Thus, (5) Hinders or impairs the use of property.
it has been held that where the easement may be
established on any of several tenements surrounding the The enumeration provided is incapable of exact and
dominant estate, the one where the way is shortest and exhaustive definition which will fit all cases. Technically,
will cause the least damage should be chosen. However, nuisance can be everything that is the harm caused or that
if these two (2) circumstances do not concur in a single would cause harm.
tenement, the way which will cause the least damage
A nuisance is one of the most serious hindrances to the
should be used, even if it will not be the shortest. In the
enjoyment of life and property. (Report of the Code
case at bar, the trial court ruled that the easement should
Commission, p. 51).
be constituted through the land of private respondents on
the eastern side because it would be the shortest way to The nuisance doctrine operates as a restriction upon the
the provincial road, being only 17.45 meters long, right of the owner of the property to make such use as he
compared to 149.22 meters if the easement was pleases.
constituted on the Opone and Tudtud roads on the western
and southern sides of petitioner’s land. On the other hand, NUISANCE TRESPASS
as already pointed out, the Court of Appeals, in pointing There is no actual There is a direct
to the longer way, considered the fact that this was already physical invasion of the infringement of another’s
property. right of property.
existing and does not preclude its use by other parties than
The injury is The injury is direct and
the individual owners of Lot 1-A to Lot 1-G and the
consequential. immediate.
PROPERTY
RECITS-NOTES-CASES
nature, but which may become a nuisance by
reason of circumstances, location, or
NUISANCE NEGLIGENCE surroundings. Ex. a piggery in an enclosed
The liability of the person The liability of the person
uptown subdivision.
does not depend on the arises from his failure to
degree of care or skill observe due diligence. DOCTRINE OF ATTRACTIVE NUISANCE
exercised to avoid such An attractive nuisance is a dangerous instrumentality
injury. or appliance which is likely to attract children at play.
The creation and Negligence is a violation (65 C.J.S. 455) Under this Doctrine, one who maintains
maintenance of a nuisance of a relative duty. on his estate or premises an attractive nuisance without
is a violation of an exercising due care to prevent children from playing
absolute duty. therewith or resorting thereto, is liable to a child of
Where the acts or omissions constituting negligence are tender years who is injured thereby, even if the child is
identical acts which, it is asserted, give rise to a cause technically a trespasser in the premises. (Jarco
of action for nuisance, the rules applicable to Marketing Corp v. CA)
negligence will be applied. (58 Am Jur. 2d 557-558) The attractiveness is an invitation to children. Thus, an
owner is bound to set up safeguards to prevent danger
and avoid liability.
Classification of nuisance:
1. As to the extent/scope of injurious effects;
A swimming pool or a water tank is not an attractive
i) Public Nuisance - A public nuisance affects a
nuisance. Nature has created streams, lakes and pools
community or neighborhood or any
which attract children. Lurking in their waters is always
considerable number of persons, although the
the danger of drowning. Against this danger children are
extent of the annoyance, danger or damage
early instructed so that they are sufficiently presumed to
upon individuals may be unequal.
know the danger; and if the owner of private property
ii) Private Nuisance - A private nuisance is one
creates an artificial pool on his own property, merely
which violates only private rights and
duplicating the work of nature without adding any new
produces damage to but one or a few persons,
danger,(he) is not liable because of having created an
and cannot be said to be public.
"attractive nuisance." (Hidalgo Enterprises, Inc. v.
iii) Mixed Nuisance – This is a kind of nuisance
Balandan G.R. No. L-3422 [1952])
which is both public and private in character.
 Example: A house built on the top of a Every successive owner or possessor of property who
railway track. It is a private nuisance to fails or refuses to abate a nuisance in that property started
the railroad company and a public by a former owner or possessor is liable therefor in the
nuisance to the community because it same manner as the one who created it. In order to render
endangers the lives of the passengers. the new owner or possessor liable, it is necessary that he
2. As to nature; has actual knowledge of the existence of the nuisance and
i) Nuisance per se – is an act, occupation, or that he has the power to abate the same. The liability of
structure which unquestionably is nuisance at both is solidary.
all times and under any circumstances,
The abatement of a nuisance does not preclude the right
regardless of location or surroundings. Ex.
of any person injured to recover damages for its past
house of prostitution.
existence. Thus, in case of lease, if the lessee has abated
 The thing becomes a nuisance as a matter
the nuisance, the lessor is not entitled to compensation
of law. Thus, although street peddling is
unless he can show that the abatement is unjustified.
not a nuisance, when an ordinance
prohibiting street peddling was passed, Suppose that the lessee abated the nuisance created by the
street peddling becomes a nuisance per lessor and due to that nuisance, a third person was injured.
se. Against whom can the injured claim for damages?
 But suppose that no law was passed
and suppose a person is peddling  The answer is the lessor. The lessee is not liable
goods on the street, it is then a for he abated the nuisance. Even if the nuisance
nuisance per accidens since peddling has already been abated, under the law, the lessor
is not prohibited by law. cannot escape from the liability arising from the
ii) Nuisance per accidens – is an act, occupation, nuisance that he had created.
or structure which is not a nuisance in its
PROPERTY
RECITS-NOTES-CASES
Lapse of time cannot legalize any nuisance, whether (2) If an alleged nuisance is later declared by
public or private. the courts to be not a real nuisance.
 EXCEPTION: On easements, which expressly Farrales v. City Mayor of Baguio
prescribes that easements are extinguished by
Farrales v. The City Mayor of Baguio
OBSTRUCTION and NON USE for 10 years.
G.R. No. L-24245; April 11, 1972; EN BANC
(See Ongsiaco v. Ongsiaco, 101 Phil 1196 [1957]
J. Makalintal
The remedies against a public nuisance are:
Facts: Plaintiff was the holder of a municipal license to
(1) A prosecution under the Penal Code or any local sell liquor and sari-sari goods. When the temporary
ordinance: or building where she had her stall was demolished in order
(2) A civil action; or that the city might construct a permanent building,
(3) Abatement, without judicial proceedings. Plaintiff was ordered to move her goods to another
temporary place until the permanent building was
The act of abatement is an exercise of police power by the
completed. She did not like the location pointed out by
state. Thus, the owner of the nuisance thing would not be
city officials where she could install her temporary stall.
entitled to any compensation, unless the alleged nuisance
Instead, taking the law into her own hands, Plaintiff built
is later declared by the court to be not a real nuisance.
a temporary shack at one end of the Rice Section, Baguio
The remedies by the state is not exclusive, but cumulative. City Market without seeking prior permit or permission
The district health officer shall take care that one or all of from any city official. When the police threatened to
the remedies against a public nuisance are availed of he demolish this shack, which was built on the cement
shall likewise determine whether or not abatement, passageway at the end of the Rice Section building,
without judicial proceedings, is the best remedy against a Plaintiff came to the CFI of Baguio seeking an injunction.
public nuisance. The CFI refused to issue the same. Plaintiff could not do
so, so the police demolished the shack, brought the
If a civil action is brought by reason of the maintenance materials and goods to the City Hall and subsequently
of a public nuisance, such action shall be commenced by delivered both materials and goods to Plaintiff. Plaintiff
the city or municipal mayor. However, any private person filed a case of contempt against the police officers but the
may file an action on account of a public nuisance, if it is same was denied. Plaintiff amended his complaint but the
specially injurious to himself. same was dismissed on the ground that Plaintiff had not
A private individual may even abate a nuisance which is permit to build the shack and this shack was built in the
injurious to him by removing, or if necessary, by passageway where people pass when going to the hangar
destroying the thing which constitutes the same, without market building and that the police officers properly
committing a breach of the peace, or doing unnecessary demolished the shack for it had been built in defiance of
injury. But it is necessary: orders from City Hall officials. Hence, this appeal.
(1) That demand be first made upon the Issue: Did the lower court erred in dismissing the case of
owner or possessor of the property to the plaintiff?
abate the nuisance; Ruling: No. The appellant's contention is that the shack or
(2) That such demand has been rejected; temporary stall put up by her inside the premises of the
(3) That the abatement be approved by the Baguio City Market was not a nuisance or if it was a
district health officer and executed with nuisance at all it was one per accidens and not per se and
the assistance of the local police; and therefore could be abated only after the corresponding
(4) That the value of the destruction does not judicial proceeding. The uncontradicted evidence does
exceed P3000.00. not support the appellant's contention. In the first place
The remedies against a private nuisance are: she had no permit to put up the temporary stall in question
in the precise place where she did so. In the second place,
(1) A civil action; or its location on the cement passageway at the end of the
(2) Abatement, without judicial proceedings. Rice Section building was such that it constituted an
obstruction to the free movement of people. Judging by
A private person or a public official extrajudicially
these photographs presented as evidence, it cannot even
abating a nuisance shall be liable for damages:
be said that what the appellant constructed was a
(1) If he causes unnecessary injury; or temporary stall. It was nothing more than a lean-to,
improvised with pieces of used scrap iron roofing sheets.

PROPERTY
RECITS-NOTES-CASES
It was obviously not a "building" within the meaning of covered by Torrens title shall be considered as
the Charter of the City of Baguio relied upon by the unregistered lands.
appellant and under which the power "to cause buildings, Hereafter, all instruments affecting lands originally
dangerous to the public, to be made secure or torn down, registered under the Spanish Mortgage Law may be
is vested in the City Engineer, subject to the approval of recorded under Section 113 of this Decree, until the
the City Mayor. land shall have been brought under the operation of the
Torrens system.
It is true that under Article 702 of the Civil Code "the
District Officer shall determine whether or not abatement, The books of registration for unregistered lands
without judicial proceedings, is the best remedy against provided under Section 194 of the Revised
public nuisance;" but in this case the failure to observe Administrative Code, as amended by Act No. 3344,
shall continue to remain in force; provided, that all
this provision is not in itself a ground for the award of
instruments dealing with unregistered lands shall
damages in favor of the appellant and against the
henceforth be registered under Section 113 of this
appellees. According to Article 707 of the same Code, a Decree.
public official extrajudicially abating a nuisance shall be
liable for damages in only two cases: (1) if he causes Jurisdiction in a land registration cases being a proceeding
unnecessary injury, or (2) if an alleged nuisance is later in rem, is acquired by constructive seizure of the land
declared by the courts to be not a real nuisance. Here no through publication, mailing and posting of the notice of
unnecessary injury was caused to the appellant, and not hearing. Persons named in the application are not
only was there no judicial declaration that the alleged summoned but merely notified of the date of initial
nuisance was not really so but the trial court found that it hearing on the petition. (Phil Women’s Christian
was in fact a nuisance. Temperance Union v. Yangco, 720 SCRA 522 [2014])
Decision appealed from affirmed. Registration means any entry made in a book or public
registry of deeds. To register means to enter in a register;
to record formally or distinctly; to enrol; to enter a list.
TITLE IX. – REGISTRY OF
PURPOSE OF REGISTRATION:
PROPERTY
1. To give true notice of the true status of real property
NOTES ON REGISTRY OF PROPERTY and real rights thereto;
Generally, only immovables are subject to registration, 2. To bind third persons;
however, save for some exceptions: 3. To record acts or contracts;
4. To make the title indefeasible and imprescriptible;
1. Movables under the Chattel Mortgage Law; 5. To prevent the commission of frauds, thus insuring
2. Ships; the effectivity of real rights over real property.
3. Aircraft; and
4. Land Vehicles EFFECTS OF REGISTRATION:
There used to be three systems of registration with respect 1) It operates as a constructive notice;
to immovables, each being governed by special law. 2) It does not validate or cure defective instrument
3) It does not vest title
1) The system under the Spanish Mortgage Law; 4) Cannot bind property where it is legally ineffective.
2) The Torrens System under Act No. 496, as amended;
3) The system provided for in Section 194 under the Registration is NOT a mode of acquiring ownership.
Revised Administrative Code, as amended by Act No. The entry of instruments in the Primary Entry Book is
3344, covering neither from 1 and 2. equivalent to registration despite even the failure to
PD 892 discontinued the Spanish Mortgage law annotate said instruments in the corresponding certificates
of title. (Durawood Construction and Lumber Supply Inc.
In present, land registration system is governed by PD v. Bona, 664 SCRA 204 [2012]
1529 or the Property Registration Decree of 1978
In cases of double sale, a subsequent sale that is registered
Under Section 3 of PD 1529: may defeat a prior unregistered sale of land. Thus, the
Section 3. Status of other pre-existing land purchaser who first recorded his deed of sale in good faith
registration system. The system of registration under in the registry of property acquires the ownership thereof.
the Spanish Mortgage Law is hereby discontinued and (Article 1544)
all lands recorded under said system which are not yet
PROPERTY
RECITS-NOTES-CASES
It is a fundamental principle in Land Registration that the merely confirms or records title already existing and
Certificate of Title serves as evidence of an indefeasible vested.
title to the property in favor of the person whose name
Mere possession of a certificate of title is not necessarily
appears therein. After the expiration of the one-year
conclusive of a holders true ownership of property. If a
period from the issuance of the decree of registration upon
person obtains title that includes land to which he has no
which it is based, it becomes incontrovertible. (Jacob v.
legal right, that person does not, by virtue of said
CA, 224 SCRA 189 [1993])
certificate alone, become the owner of the land illegally
Under the rule of notice, it is presumed that the purchaser or erroneously included. (Sps Bejoc v. Caberos; G.R. No.
has examined every instrument of record affecting the 145849. [2005])
title. Such presumption is irrebutable. He is charged with
A person who wrongfully or illegally registers property in
notice of every fact shown by the record and is presumed
his name is deemed to hold the same in trust for the real
to know every fact which an examination of the record
owner. In this situation, the real owners has the right to
would have disclosed. This presumption cannot be
file an action for the reconveyance of the property even
overcome by proof of innocence or good faith. Otherwise
beyond the one year period under Act No. 496 because
the very purpose and object of the law requiring a record
such an action is imprescriptible. (Javier v. CA, G.R. No.
would be destroyed. Such presumption cannot be defeated
96086 [1993])
by proof of want of knowledge of what the record
contains any more than one may be permitted to show that A person dealing with registered land is not required to go
he was ignorant of the provisions of the law. The rule that behind the register to determine the condition of the
all persons must take notice of the facts which the public property. He is only charged with notice of the burdens on
record contains is a rule of law. The rule must be absolute. the property which are noted on the face of the register or
Any variation would lead to endless confusion and useless the certificate of title. To require him to do more is to
litigation. (Legarda vs. Saleeby, 31 Phil. 590 [1915]). defeat one of the primary objects of the Torrens system.
However, it would not apply if the property in dispute is
A title, once registered under the Torrens System of land
unregistered. The issue of good faith or bad faith of a
registration, cannot be defeated, even by adverse, open
buyer is relevant only where the subject of the sale is a
and notorious possession, neither can it be defeated by
registered land but not where the property is an
prescription. A certificate of title, once registered, is
unregistered land. One who purchases an unregistered
notice to the world and as such all persons are bound by
land does so at his peril. (Acabal v. Acabal, 454 SCRA 555
such notice and no one can plead ignorance of the
[2005])
registration. (id)
Ownership is different from a certificate of title. The TCT
A certificate of title is a conclusive evidence of ownership
is only the best proof of ownership of a piece of land.
of the land described therein; the validity of which shall
Besides, the certificate cannot always be considered as
not be subject to a collateral attack, especially in an
conclusive evidence of ownership. Mere issuance of the
ejectment case which is summary in nature. (Rodriguez v.
certificate of title in the name of any person does not
Rodriguez, 532 SCRA 642 [2007])
foreclose the possibility that the real property may be
A title issued under the Torrens system is entitled to all under co-ownership with persons not named in the
the attributes of property ownership, which necessarily certificate or that the registrant may only be a trustee or
includes possession. (Corpuz v. Agustin, 663 SCRA 350 that other parties may have acquired interest subsequent
[2012]) to the issuance of the certificate of title. To repeat,
registration is not the equivalent of title, but is only the
The prohibition against collateral attack does not apply to
best evidence thereof. Title as a concept of ownership
spurious or non-existent titles, since such titles do not
should not be confused with the certificate of title as
enjoy indefeasibility. "Well-settled is the rule that the
evidence of such ownership although both are
indefeasibility of a title does not attach to titles secured by
interchangeable. (Pineda v. CA, G.R. No. 114172 [2003])
fraud and misrepresentation. In view of these
circumstances, it was as if no title was ever issued in this The rule is that a void title may be the source of a valid
case to the petitioner and therefore this is hardly the title in the hands of an innocent purchaser for value. An
occasion to talk of collateral attack against a title." innocent purchaser for value is one who buys the property
(Oliveros v. SMC G.R. No. 173531 [2012]) of another, without notice that some other person has a
right to, or interest in, such property and pays a full and
Registration does not by itself create or vest title, it is
fair price for the same at the time of such purchase, or
merely evidence of title over a particular property or
before he has notice of the claims or interest of some other

PROPERTY
RECITS-NOTES-CASES
person in the property.(Tan v. de la Vega, G.R. No 168809 The titles of ownership, or of other rights over immovable
[2006]) property, which are not duly inscribed or annotated in the
Registry of Property shall not prejudice third persons.
A motion to intervene in a land registration case cannot
be allowed. A party wishing to be heard should ask for the If the land is not registered, it is not binding to third
lifting of the order of general default, and then if lifted, persons unless such has knowledge of the transaction
file an opposition to the application for registration. This involving the subject land.
is so because proceedings in land registration are in rem
A fraudulent or forged document of sale may give rise to
and not in personam, the sole object being the registration
a valid title.
applied for, not the determination of any right connected
with the registration. (Dolfo v. Register of Deeds, G.R. No. Registration is useless when what is registered is
133465 [2000]) insufficient to grant such a right as in the case of a
fictitious or simulated sale, or a forged deed, or a sale
A certificate of title is not conclusive evidence of title if it
without compliance with the legal formalities.
is shown that the same land had already been registered
and an earlier certificate for the same is in existence. The basic elements for the allowance of the reopening of
(MWSS v. CA, G.R. No 103558 [1992]) review of a decree, are:
The existence of the earlier valid title renders the (1) the petitioner has real or dominical right;
subsequent title void because a single property cannot be (2) that he has been deprived thereof through
registered twice. The holder of the earlier title has the fraud;
burden to prove the alleged existence of his title.(Oliveros (3) that the petition is filed within one year
v. SMC, supra) from the issuance of the decree; and
(4) that the property has not yet been
If two certificates of title purport to include the same land,
transferred to an innocent purchaser.
whether wholly or partly, the better approach is to trace
the original certificates from which the certificates of However, the action to annul a judgment, upon the ground
titles were derived. The one who holds the earlier title of fraud would be unavailing unless the fraud be extrinsic
may prevail only in the absence of any anomaly or or collateral and the facts upon which it is based have not
irregularity in the process of its registration. (Bangis v. been controverted or resolved in the case where the
Heirs of Adolfo, G.R. No. 190875, [2012]) judgment sought to be annulled was rendered. Review of
the decree demands a showing of actual, not constructive,
The purpose of registration is merely to notify and protect
fraud. Any title issued on non-disposable lots even in the
the interests of strangers to a given transaction, who may
hands of an alleged innocent purchaser for value, shall be
be ignorant thereof, and the non-registration of the deed
cancelled. (Republic v. CA, G.R. No. 40402 [1987])
evidencing said transaction does not relieve the parties
thereto of their obligations thereunder.(Casica vs. A petition for review of the decree of registration will not
Villaseca, G.R. No. L-9590, [1957]) prosper even if filed within one year from the entry of the
decree if the title has passed into the hands of an innocent
If the land is mortgaged to a rural bank under RA 720, as
purchaser for value. (National Grains Authority v. IAC,
amended, the mortgagor may redeem the property within
G.R. No. 68741 [1988])
2 years from the date of foreclosure or from the
registration of the sheriff’s certificate of sale at such The books in the Registry of Property shall be public for
foreclosure if the property is not covered or is covered, those who have a known interest in ascertaining the status
respectively by a Torrens title. If the mortgagor fails to of the immovables or real rights annotated or inscribed
exercise such right, he or his heirs may still repurchase the therein.
property within 5 years from the expiration of the 2-year
redemption period pursuant to Sec. 119 of the Public Land The duty of the register is merely ministerial. Thus, a
Act. (Commonwealth Act 141). If the land is mortgaged petition for mandamus would be the remedy if the register
to parties other than rural banks, the mortgagor may refused to perform its duties.
redeem the property within 1 year from the registration of
the certificate of sale pursuant to Act 3135. If he fails to
do so, he or his heirs may repurchase the property within
5 years from the expiration of the redemption period also
pursuant to Sec. 119 of the Public Land Act. (Heirs of
Canque v. CA; Commentary by Paras)

PROPERTY
RECITS-NOTES-CASES
Suppose that a parcel of land was sold to the sons of Henry Siagan and their successors-in-interest are
buyer. The sale was unrecorded. Later, the the contending parties in this case, claiming ownership of
seller mortgaged the same to a third person the land in question. Cagaoay Camiling died in
December, 1939; Henry Siagan in 1943, Dagaoan
and the mortgage was registered. Who Sawadan in September, 1965 and Augusto Siagan on
would be preferred? October 4,1975. Petitioners claim that Dagaoan Sawadan
The sale would be preferred for the reason that if the acquired ownership over subject land by means of
original owner had parted with his ownership of the thing continuous, adverse and peaceful possession thereof since
sold, he no longer had the ownership and free disposal of time immemorial or since 1908. Dagaoan Sawadan died
that thing so as to be able to mortgage it. Thus, registration in 1965. Augusto Siagan inherited Lot 1494 but his son
of the mortgage under Act No. 3344 would, in such case, Constante sold the lot in question to the Pasimio spouses
be of no moment, since it is understood to be without and registered said instrument under Act 3344. The
prejudice to the better right of third parties. Nor would it Pasimio spouses in turn sold the same lot to the Roman
avail the mortgagee to assert that he is in actual possession Catholic Bishop of Bangued, Inc. who bought the same
of the property for the execution of the conveyance in a for the sole purpose of disposing the same at cost to the
public instrument earlier was equivalent to the delivery of actual occupants-tenants thereon in the furtherance of the
the thing sold to the vendee. (Reyes v. De Leon, G.R. No. Land Reform Program of the government and had it
L-22331 [1967]) registered under Act 3344. Said tenants are now the
petitioners herein. Petitioners allege that they have been
Note that it would seem that this ruling is not accurate in possession and have tilled Lot 1494 as tenants of
because the mortgagor should really still be considered Dagaoan Sawadan from 1949 to 1965 and thereafter they
the owner insofar as innocent third parties are concerned, occupied and tilled the same lot from 1965 to date. The
the sale not having been registered. This comment Roman Catholic Bishop of Bangued, in confirmation
however holds true only if somehow the land — even if thereof, stated in its complaint dated June 3, 1976, that
not registered under the Torrens System was in the name said petitioners tilled the aforesaid parcel of land from
of the mortgagor — as when for instance he had 1968 to the present, openly, publicly, adversely and
previously registered his purchase of it from someone. continuously in the concept of owners.
(Paras)
On the other hand, private respondents maintain that Lot
Suppose that a house was sold a retro to the 1494 was originally owned by Henry Siagan who died
buyer. The sale a retro was unrecorded. Later, intestate in May 1943, that as early as 1958 the ownership
the seller mortgaged the same to a third of said lot was already the subject of litigation. Elpidio
person and the mortgage was registered. Siagan applied in September, 1967 for Free Patent over
said Lot 1494 amd a free patent was issued. Subsequently,
Who would be preferred?
an OCT was issued in the name of Elpidio Siagan. In
The third person is preferred because the mortgage in his 1973, Elpidio Siagan sold Lot 1494 to the spouses
favor was registered. It would have been different had the Alfonso Cadiam and Ognay Cullawit, by virtue to which
equitable mortgage been registered. (Reyes v. De Leon, OCT No. P-392 was cancelled and in lieu thereof, TCT
id.) No. T-338 was issued in the name of the Cadiam spouses.
Following their purchase, said spouses took possession of
Note that the pacto de retro sale was really an equitable
the land, fenced it and planted it with rice but herein
mortgage.
petitioners on August 5. 1974, forcibly dispossessed them
Bernales v. IAC therefrom, uprooting the plants of said couple who then
brought a criminal complaint for theft of rice plants
Bernales v. IAC against the petitioners. This led to the referral of the
G.R. No. 71490-91; June 28, 1998; Second Division criminal charge to the Court of Agrarian Relations but
J. Paras because petitioners claimed ownership in their answer
Facts: The lot in question was originally public land, before the CAR, spouses Cadiam and Ognay Cullawit
cadastrally surveyed under the Manabo Cadastre No. 327- filed a civil case for recovery of ownership of the same
D and was designated as Lot No. 1494. Henry Siagan is lot, in the CFI of Abra against said petitioners. In turn,
the father of both Elpidio Siagan whose mother is Constante Siagan and his co-petitioners instituted Civil
Cagaoay Camiling and Augusto Siagan whose mother is Case No. 976 for the "Annulment and Cancellation of
Dagaoan Sawadan. Augusto Siagan has a son named Certificate of Title, Declaration of Ownership and
Constante Siagan, one of the petitioners in this case. Both Damages and Reconveyance" claiming that the OCT
covering the suit was fraudulently searched. The lower
PROPERTY
RECITS-NOTES-CASES
court rendered a decision in favor of the petitioners. The
CA reversed the decision of the lower court.
Issue: who has a better title over Lot No. 1494?
Ruling: It is private respondents who have better title over
the said lot. It has been established beyond dispute that
Elpidio and Augusto Siagan mutually recognizing each
other as the only heirs of Henry Siagan filed a Joint
Motion to Terminate Special Proceedings executed the
"Memorandum of Agreement" which stipulated among
other things that Augusto Siagan renounced, quit-
claimed, waived, ceded and conveyed any interest and
right he had over three lots which include Lot No. 1494 in
exchange of fourteen (14) other parcels of land of the
decedent which Elpidio Siagan quit-claimed, waived,
ceded and conveyed in favor of Augusto Siagan. Because
of such waiver and quit claim, Elpidio Siagan became the
sole claimant of Lot 1494. He applied for and was granted
Free Patent and Original Certificate of Title No.P-392 for
said lot. In the case at bar, the Free Patent was granted to
Elpidio Siagan, the very person who as successor-in-
interest of Augusto Siagan with a claim of continuous and
adverse possession in the concept of owner since time
immemorial or since 1908 through the latter's
predecessors-in-interest, is entitled to subject land. An
Original Certificate of Title was issued in favor of Elpidio
Siagan. Once a homestead patent granted in accordance
with the Public Land Act is registered under the Torrens
System, the certificate of title issued in virtue of said
patent has the force and effect of a Torrens Title under the
Land Registration Act. Corollary thereto, the Director of
Patents, being a public officer, has in his favor the
presumption of regularity in issuing the questioned
homestead patent.The Cadiam spouses to whom a
Transfer Certificate of Title was issued after the purchase
of the lot from Elpidio Siagan for a valuable consideration
as stated in the Deed and who had no knowledge of any
flaw or defect of the title at the time of the purchase, are
evidently as ruled by the Court of Appeals, innocent
purchasers for value and above all considerations, are
entitled to the protection of the law. In the case at bar, the
Cadiam spouses who were found by the Court of Appeals
as innocent purchasers for value with a Transfer
Certificate of Title under the Torrens System in their
names, have evidently a better right than herein
petitioners.Decision appealed from affirmed.

PROPERTY
RECITS-NOTES-CASES
BOOK III TITLE I

OCCUPATION
DIFFERENT MODES
NOTES
OF ACQUIRING Things appropriable by nature which are without an
OWNERSHIP owner, such as animals that are the object of hunting and
fishing, hidden treasure and abandoned movables, are
acquired by occupation. (Art. 713)
Occupation is a mode of acquiring dominion by the
PRELIMINARY PROVISION seizure of things corporeal which have no owner, with the
NOTES intention of acquiring them, and according to the rules
laid down by law. (3 Sanchez Roman 210)
DIFFERENT MODES OF ACQUIRING OWNERSHIP:
Requisites of Occupation:
1. Original
a. Occupation; 1. There must be seizure of thing;
b. Intellectual Creation 2. That the thing is a corporeal personal
2. Derivative property;
a. Law 3. That the thing must be susceptible of
b. Donation appropriation by nature;
c. Succession 4. That there is an intention to appropriate;
d. Tradition – in consequence of certain and
contracts; and 5. That the requisites laid down by law must
e. Prescription be complied with.
Mode vs Title Occupation only applies to res nullius.
MODE TITLE A thing lost or taken by force is not ipso facto converted
Directly and immediately Gives merely the occasion into res nullius, and it may thus be recovered from
produces a real right. for the acquisition of its whoever has it later in his possession, unless said
existence. possessor can show he has acquired it by any of the modes
Proximate cause Remote cause of acquiring ownership. (Narciso v. Ortiz, [CA] 45 O.G.
The process The justification for the 162, [1949])
process
The ownership of a piece of land cannot be acquired by
occupation. (Art. 714)
Real right vs personal right
All lands, other than those privately owned, belong to the
REAL RIGHT PERSONAL RIGHT state under the regalian doctrine.
Definite Active Subject – Definite Active Subject –
Indefinite Passive SubjectDefinite Passive Subject Under the torrens system of registration, no one can
(against the whole world) (only between partes) acquire ownership over registered land by occupation.
Enforced over a specific Since it’s only between
object. Thus, such is parties, it is exercised thru Under Article 716, the owner of a swarm of bees shall
created over a thing. another person whom the have a right to pursue them to another's land.
action may be brought.
If he exercised such right, he is bound indemnify the
The subject matter is The subject matter is
possessor of the property where the swarm was found for
corporeal incorporeal
the damages that he may cause.
Can be created by both Can only be created with
mode and title. title. (ETR: Succession) If the owner has not pursued the swarm, or ceases to do
Extinguished by loss or Not extinguished by loss so within two consecutive days, the possessor of the land
destruction of the thing. or destruction. may occupy or retain the same.
The owner of domesticated animals may also claim them
within twenty days to be counted from their occupation
PROPERTY
RECITS-NOTES-CASES
by another person. This period having expired, they shall Facts: On August 14, 1970, then President Ferdinand E.
pertain to him who has caught and kept them. Marcos issued Proclamation No. 739, "Establishing as
Reservation for the Purpose of the Exploration,
Note that domestic (tame) animals cannot be acquired by
Development, Exploitation and Utilization of Geothermal
prescription unless the owner had abandoned the same.
Energy, Natural Gas and Methane Gas a Parcel of Land
A domesticated animal cannot be acquired by occupation in the Province of Albay, Island of Luzon, Philippines."
when the person claiming was entrusted with its custody. Lot No. 4094 of the Malinao Cadastre, consisting of
(see Catabian v. Tunocul, 11 Phil. 49) 15,520 square meters, is covered by the said
proclamation. On May 6, 1994, private respondent, a
Pigeons and fish which from their respective breeding retired public school teacher, filed an application with the
places pass to another pertaining to a different owner shall RTC of Albay for the confirmation and registration of her
belong to the latter, provided they have not been enticed alleged title over Lot No. 4094. The Republic opposed the
by some article or fraud. (Art. 717) application stating that, among others, that the parcel
He who by chance discovers hidden treasure in another's applied for is a portion of the public domain belonging to
property shall have the right granted him in article 438 of the Republic of the Philippines not subject to private
this Code. (Art. 718) appropriation. Private respondent appended to her
application the tracing cloth plan of the property under the
If a thing is not a hidden treasure, article 719 provides that name of Sotero Bondal. The RTC rendered a decision in
the finder must return it to its previous possessor. favor of the applicant. The CA affirmed the decision.
However, if the latter is unknown, the finder shall Issue: Did the lower courts erred in granting the
immediately deposit it with the mayor of the city/ application of Socorro Jacob registering the said parcel of
municipality where the finding has taken place. land belonging to the public domain?
The finding shall be publicly announced by the mayor for Ruling: Yes. Under the Regalian doctrine, all lands not
two consecutive weeks in the way he deems best. otherwise appearing to be clearly within private
ownership are presumed to belong to the State. The
If the movable cannot be kept without deterioration, or
presumption is that lands of whatever classification
without expenses which considerably diminish its value,
belong to the State. Unless public land is shown to have
it shall be sold at public auction eight days after the
been reclassified as alienable or disposable to a private
publication.
person by the State, it remains part of the inalienable
Six months from the publication having elapsed without public domain. Property of the public domain is beyond
the owner having appeared, the thing found, or its value, the commerce of man and not susceptible of private
shall be awarded to the finder. appropriation and acquisitive prescription. Occupation
thereof in the concept of owner no matter how long cannot
The finder and the owner shall be obliged, as the case may ripen into ownership and be registered as a title. No public
be, to reimburse the expenses. land can be acquired by private persons without any grant
One who finds lost property is guilty of theft if he does from the government, whether express or implied. It is
not give it to the owner or to the authorities concerned, indispensable that there be a showing of a title from the
whether or not he knows who the owner is. (People v. State. In the case at bar, when private respondent filed her
Panotes, 36 O.G. 1008). RATIO: They are not yet application with the RTC on May 6, 1994, Lot No. 4094
abandoned. was no longer alienable and disposable property of the
public domain, since as of August 14, 1970, by virtue of
If the owner should appear in time, he shall be obliged to Proclamation No. 739, it was segregated from the public
pay, as a reward to the finder, one-tenth of the sum or of domain and declared part of the reservation for the
the price of the thing found. (Art. 720) Note that the finder development of geothermal energy. Private respondent
is likewise entitled to be reimbursed for the necessary filed her application for confirmation 24 years after the
expenses that he had made when the thing was in his said proclamation was issued; thus, the period of her
custody. (Pineda) possession and occupancy after such proclamation can no
longer be tacked in favor of the claimant.
Republic v. Jacob
Petition granted.
Republic v. Jacob
G.R. No. 146874; July 20, 2006; First Division
J. Callejo Sr.

PROPERTY
RECITS-NOTES-CASES
See: RA 8293
TITLE II
INTELLECTUAL CREATION Asia Brewery Inc. v. CA
Asia Brewery, Inc. v. CA
G.R. No. 103453; July 5, 1983; EN BANC
By intellectual creation, the following persons acquire J. Griño- Aquino
ownership:
Facts: On September 15, 1988, San Miguel Corporation
1) The author with regard to his literary, dramatic, (SMC) filed a complaint against Asia Brewery Inc. (ABI)
historical, legal, philosophical, scientific or other for infringement of trademark and unfair competition on
work; account of the latter's BEER PALE PILSEN or BEER NA
2) The composer; as to his musical composition; BEER product which has been competing with SMC's
3) The painter, sculptor, or other artist, with respect to SAN MIGUEL PALE PILSEN for a share of the local
the product of his art; beer market. The trial court dismissed the case because
4) The scientist or technologist or any other person with ABI "has not committed trademark infringement or unfair
regard to his discovery or invention. competition against" SMC. SMC appealed to the Court of
It is a mode based on the constitutional provision that Appeals where it reversed the decision of the trial court.
“The State shall protect and secure the exclusive rights of The CA found that ABI was guilty of infringement of
gifted citizens to their intellectual property and creations, trademark and unfair competition.
particularly when beneficial to the people, for such period Issue: Was there trademark infringement?
as may be provided by law.’’ (Sec. 13, Art. XIV, 1987
Constitution) Ruling: No. Infringement of trademark is a form of unfair
competition. Sec. 22 of Republic Act No. 166, otherwise
The author and the composer … shall have the ownership known as the Trademark Law, defines what constitutes
of their creations even before the publication of the same. infringement:
Once their works are published, their rights are governed
by the Copyright laws. (Art. 722) Sec. 22. Infringement, what constitutes. — Any person
who shall use, without the consent of the registrant,
Even before the author or composer has published the any reproduction, counterfeit, copy or colorable
work, he is already the owner of the creation. To protect imitation of any registered mark or trade-name in
his right, however, he must ask for a copyright if he connection with the sale, offering for sale, or
intends the work to be published. (Paras) advertising of any goods, business or services on or in
connection with which such use is likely to cause
Unless the copyright is obtained, the ownership by him confusion or mistake or to deceive purchasers or
will be lost. Mere circulation among close friends and others as to the source or origin of such goods or
associates, notwithstanding, is not considered publication. services, or identity of such business; or reproduce,
counterfeit, copy or colorably imitate any such mark
(id.)
or trade-name and apply such reproduction,
An employee who wrote a poem during his free time or counterfeit, copy, or colorable imitation to labels,
during the office hours is the owner of the poem that he signs, prints, packages, wrappers, receptacles or
created. (see Callaghan v. Myers, 128 US 617) advertisements intended to be used upon or in
connection with such goods, business or services, shall
However, if he was employed SPECIFICALLY to make be liable to a civil action by the registrant for any or
a poem for his employer, his employer is the owner of the all of the remedies herein provided.
poem that he created. (Paras) This definition implies that only registered trade marks,
Under Art. 723, the letter (ideas, opinions, etc.) belongs trade names and service marks are protected against
to the sender. The letter (material thing) belongs to the infringement or unauthorized use by another or others.
receiver. The use of someone else's registered trademark, trade
name or service mark is unauthorized, hence, actionable,
The recipient cannot publish or disseminate the letter if it is done "without the consent of the registrant.
unless: Infringement is determined by the "test of dominancy"
1) the writer or the writer’s heirs consent; or rather than by differences or variations in the details of
2) the public good or the interest of justice so requires. one trademark and of another. Under such test, similarity
in size, form and color, while relevant, is not conclusive.
Special laws govern copyright and patent. If the competing trademark contains the main or essential
or dominant features of another, and confusion and
PROPERTY
RECITS-NOTES-CASES
deception is likely to result, infringement takes place. Especial and the Efes Pale Pilsen use the "steinie" bottle.
Duplication or imitation is not necessary; nor it is Petitioner ABI has neither infringed SMC's trademark nor
necessary that the infringing label should suggest an effort committed unfair competition with the latter's SAN
to imitate. The question at issue in cases of infringement MIGUEL PALE PILSEN product. While its BEER PALE
of trademarks is whether the use of the marks involved PILSEN admittedly competes with the latter in the open
would be likely to cause confusion or mistakes in the market, that competition is neither unfair nor fraudulent.
mind of the public or deceive purchasers.
Petition granted.
There is hardly any dispute that the dominant feature of
SMC's trademark is the name of the product: SAN
MIGUEL PALE PILSEN, written in white Gothic letters
with elaborate serifs at the beginning and end of the letters TITLE III
"S" and "M" on an amber background across the upper
portion of the rectangular design. On the other hand, the
DONATION
dominant feature of ABI's trademark is the name: BEER
PALE PILSEN, with the word "Beer" written in large
amber letters, larger than any of the letters found in the
NOTES
SMC label. Donation is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another, who
The fact that the words pale pilsen are part of ABI's
accepts it. (Art. 725)
trademark does not constitute an infringement of SMC's
trademark: SAN MIGUEL PALE PILSEN, for "pale Donation inter vivos is a contract.
pilsen" are generic words descriptive of the color ("pale"),
of a type of beer ("pilsen"), which is a light bohemian beer Requisites for donations inter vivos:
with a strong hops flavor that originated in the City of 1) The essential requisites of contract (COC)
Pilsen in Czechoslovakia and became famous in the a) Consent;
Middle Ages. The words "pale pilsen" may not be b) Object; and
appropriated by SMC for its exclusive use even if they are c) Cause;
part of its registered trademark: SAN MIGUEL PALE 2) The necessary form provided by law;
PILSEN, any more than such descriptive words as 3) The acceptance by the donee which must be received
"evaporated milk," "tomato ketchup," "cheddar cheese," by the donor during his lifetime;
"corn flakes" and "cooking oil" may be appropriated by 4) Irrevocability, save for some exceptions; and
any single manufacturer of these food products, for no 5) The intent to benefit the donee;
other reason than that he was the first to use them in his 6) There must be a resultant decrease in the assets or
registered trademark. patrimony of the donor.
Unfair competition is the employment of deception or any Donation is an act of liberality and never obligatory.
other means contrary to good faith by which a person shall (Tuazon v. CA, 212 SCRA 739 [1992])
pass off the goods manufactured by him or in which he
deals, or his business, or services, for those of another Classification of donations:
who has already established goodwill for his similar 1) As to the viewpoint: (SiReCO)
goods, business or services, or any acts calculated to a) Simple
produce the same result. The universal test question is b) Remuneratory – as reward for previous services
whether the public is likely to be deceived. Nothing less c) Compensatory / Modal – in consideration for
than conduct tending to pass off one man's goods or future services the value of which is LESS than
business as that of another will constitute unfair the value of donation; and
competition. Actual or probable deception and confusion d) Onerous – the burden is EQUAL to the thing
on the part of the customers by reason of defendant's donated.
practices must always appear. The use of ABI of the 2) As to the time of taking event:
steinie bottle, similar but not identical to the SAN a) Inter vivos
MIGUEL PALE PILSEN bottle, is not unlawful. As b) In praesenti delivered in futuro
pointed out by ABI's counsel, SMC did not invent but c) Mortis causa
merely borrowed the steinie bottle from abroad and it 3) As of occasion
claims neither patent nor trademark protection for that a) Ordinary donation
bottle shape and design. (See rollo, page 55.) The Cerveza b) Donation propter nuptias
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RECITS-NOTES-CASES
4) As to the object donated Takes effect during the Takes affect after
a) Corporeal property lifetime of the donor. donor’s death
b) Incorporeal property (ex. donation of rights) Must comply with the Must comply with the
formalities of formalities of wills;
In remuneratory donations, it is necessary that the past donations;
services to be repaid do not constitute a demandable debt. Irrevocable – save for Revocable
Otherwise, the transfer becomes a payment, not a exceptions provided by
donation. (De Leon) law;
Preferred in case of Not preferred.
While a donation may technically be different from a impairment of legitime;
gratuity, in substance they are the same. They are even Right is completely Right not transferred to
similar to a pension. Thus, it was said that "A pension is transferred to the donee; done while donor is
a gratuity only when it is granted for services previously and alive.
rendered, and which at the time they were rendered gave Acceptance by the Acceptance by done
rise to no legal obligation. (Pirovano v. De La Rama donee must be made muse be made after the
Steamship Co., G.R. No. L-5377, [1954]) during the lifetime of donor’s death.
the donor.
A donation given by the corporation to the minor children
of its late president because he "was to a large extent
responsible for the rapid and very successful development When the donor intends that the donation shall take effect
and expansion of the activities of this company" is during the lifetime of the donor, though the property shall
remunerative in nature in contemplation of law. not be delivered till after the donor's death, this shall be a
(Pirovano v. De La Rama Steamship Co., G.R. No. L- donation inter vivos. The fruits of the property from the
5377, [1954]) time of the acceptance of the donation, shall pertain to the
donee, unless the donor provides otherwise. (Art. 729)
A donation with provision that the done “defray the
expenses of the subsistence and burial” of the donor is a The donation “in praesenti to be delivered in futuro,’’
conditional donation. (Castillo v. Castillo, 23 Phil 364 referred to in Art. 729 is considered as a donation inter
[1912]) vivos, and all the characteristics referred to above, of
donations intervivos are applicable to it. (Paras)
Onerous donations are governed by the rule in contracts.
(Paras) Example: Donor gave a parcel of land but maintained the
usufruct until his death. (See Bonsato, et. al. v CA 50 OG
In an onerous donation, even if real property is involved, 3568, [1954], Castro v. CA, G.R. L-20122, [1969])
it is not essential to have a public instrument. (Manalo v.
De Mesa, 20 Phil. 496). The fixing of an event or the imposition of a suspensive
condition, which may take place beyond the natural
A gift of land to the City of Manila requiring the latter to expectation of life of the donor, does not destroy the
erect schools, construct a children’s playground and open nature of the act as a donation inter vivos, unless a
streets on the land was considered an onerous donation. contrary intention appears. (Art.730)
(Central Philippine University v. CA, 246 SCRA 511)
The donation is perfected from the moment the donor
In donations propter nuptias, express acceptance is not knows of the acceptance by the donee.(Art. 733)
necessary. It is valid as long as there is an implied
acceptance. (Valencia v. Locquiao, 412 SCRA 600 All persons who may contract and dispose of their
[2003]) property may make a donation. (Art. 735)
Illegal or impossible conditions in simple and An emancipated minor can make a donation mortis causa
remuneratory donations shall be considered as not for a person of sound mind can make a valid will. (Paras)
imposed. (Art. 727)
A husband/wife can donate his or her separate property.
Art. 727 is different from the rule in contracts where the But as regards on the conjugal property of the two, a
presence of impossible or illegal conditions renders the spouse cannot donate such without the consent of the
obligation itself void. (Paras) other spouse, save for some certain exceptions. To wit:
Donations inter vivos vs mortis causa 1. Moderate donations from the conjugal
partnership property for charity or on occasions
INTER VIVOS MORTIS CAUSA of family rejoicing or family distress. (Art. 125,
Family Code)
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RECITS-NOTES-CASES
2. The value of what is donated or promised by both other save for exceptions as provided in Art. 125 of the
spouses in favor of their common legitimate Family Code.
children for the exclusive purpose of
commencing or completing a professional or Common law spouses are likewise prohibited from
vocational course or other activity for self- donating to each other except as provided in Art. 125 of
improvement. (Art 121 [8], id) the Family Code. (Agapay vs. Palang, 276 SCRA 340,
[1997])
A co-owner cannot donate specific lot by metes and
bounds but only an aliquot part of the whole properties on
co-ownership. (Hagosojos v. CA, 155 SCRA 175 [1987]) The following donations shall be void:
In donations made by a corporation, where the donation 1. Those made between persons who were
made by the corporation has not only been granted in guilty of adultery or concubinage at the time
several resolutions duly adopted by its board of directors of the donation;
but also it has been formally ratified by its stockholders, 2. Those made between persons found guilty of
with the concurrence of its only creditor, and accepted by the same criminal offense, in consideration
the donee, the donation -has reached the stage of thereof;
perfection which is valid and binding upon the 3. Those made to a public officer or his wife,
corporation and as such cannot be rescinded unless there descendants and ascendants, by reason of his
exist legal grounds for doing so. (Pirovano v. De La Rama office.
Steamship Co., G.R. No. L-5377, [1954])
It is submitted that the donations made by incapacitated In the case referred to in No. 1, the action for declaration
persons as contemplated by Article 38 of the Civil Code of nullity may be brought by the spouse of the donor or
and not under Article 739 are merely voidable. (Paras) donee; and the guilt of the donor and donee may be proved
by preponderance of evidence in the same action. (Art.
Guardians and trustees cannot donate the property 739)
entrusted to them. (Art. 736)
Under the first paragraph of Art. 739, the act of adultery
In prohibiting a trustee from donating properties entrusted or concubinage need not be proven in a criminal action.
to him, the New Civil Code does so for the protection of Mere preponderance of evidence is sufficient. (Paras)
the trust beneficiaries and evidently contemplates gifts of
pure beneficence, that is, those which are supported by no Those donations made after the act of adultery are valid
other cause than the liberality of the donor. When the except if the consideration thereof the commission of the
donation is clearly in the interest of the beneficiaries, to act. But it is submitted that if the consideration thereof is
say it cannot be done would be contrary to the spirit and to end such adulterous relationship, then it is valid.
(Paras, citing Decision of the Tribunal Supreme of Spain,
intent of the law. (Araneta, vs. Perez, 17 SCRA 643
April 2, 1941)
[1966])
Article 739 of the New Civil Code does not apply to a
Trustees who acquired ownership by prescription are
case where the concubine did not know that.the man was
allowed to donate said properties. (Paras)
married. To be guilty of concubinage, the woman must
The prohibition is not absolute. With respect to the know the man to be married. (SSS v. Davac, 17 SCRA 863,
trustee, donation is permitted notwithstanding that the citing 5 Viada, Codigo. Penal, 217)
trustee receives nothing in exchange directly, if the
Under the second paragraph of Art. 739, there must be a
donation is onerous and is beneficial to the beneficiary.
prior criminal conviction in a criminal action. It applies
(De Leon)
particularly to co-principals and to principals and
The donor's capacity shall be determined as of the time of accomplices or accessories of the same crime. (De Leon)
the making of the donation. (Art. 737) This is an onerous donation, and it applies regardless
whether the donation is made before or after the
Making must be interpreted to mean as “perfection” of the commission of the offense. (Paras)
donation. (Paras)
Under the third paragraph of Art. 739, the purpose is to
All those who are not specially disqualified by law prevent bribery. An exception to this provision is that if
therefor may accept donations. (Art. 738) the donation is made to conceived and unborn children as
The phrase “specially disqualified” does not refer Art. 38 contemplated under Art. 742 of the Civil Code.
but to Art. 739 and donations made by spouses to each

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RECITS-NOTES-CASES
Incapacity to succeed by will shall be applicable to (6) Any person who by fraud, violence,
donations inter vivos. (Art. 740) intimidation, or undue influence should cause
the testator to make a will or to change one
The provisions on incapacity to succeed by will are found already made;
in Arts. 1027 and 1032, to wit: (7) Any person who by the same means prevents
another from making a will, or from revoking
Article 1027. The following are incapable of one already made, or who supplants,
succeeding: conceals, or alters the latter's will;
(1) The priest who heard the confession of the (8) Any person who falsifies or forges a
testator during his last illness, or the minister supposed will of the decedent.
of the gospel who extended spiritual aid to Minors and others who cannot enter into a contract may
him during the same period; become donees but acceptance shall be done through their
(2) The relatives of such priest or minister of the parents or legal representatives. (Art. 741)
gospel within the fourth degree, the church,
order, chapter, community, organization, or Minors may be donees. If the donation is simple, they may
institution to which such priest or minister accept the donation by themselves. However, if the
may belong; donation is onerous, the validity of the donation depends
(3) A guardian with respect to testamentary on the acceptance by the parent.
dispositions given by a ward in his favor
before the final accounts of the guardianship A conditional donation in favor of a minor is not perfected
have been approved, even if the testator unless it is duly accepted by his legal representative. The
should die after the approval thereof; acceptance made by the mother of said minor is not
nevertheless, any provision made by the ward sufficient for the perfection of the donation, unless said
in favor of the guardian when the latter is his mother had been appointed by a competent court as
ascendant, descendant, brother, sister, or guardian of the property of her minor child to whom the
spouse, shall be valid; donation was made. (Di Siock Jian vs. Sy- Lioc Suy, 43
(4) Any attesting witness to the execution of a
Phil. 562 [1922])
will, the spouse, parents, or children, or any
one claiming under such witness, spouse, Donations made to conceived and unborn children may be
parents, or children; accepted by those persons who would legally represent
(5) Any physician, surgeon, nurse, health officer them if they were already born. (Art. 742)
or druggist who took care of the testator
during his last illness; Donations made to incapacitated persons shall be void,
(6) Individuals, associations and corporations though simulated under the guise of another contract or
not permitted by law to inherit. through a person who is interposed. (Art. 743)
Article 1032. The following are incapable of
The provision under Art. 743 applies to those prohibited
succeeding by reason of unworthiness:
under Arts. 739 and 740. (De Leon)
(1) Parents who have abandoned their children or
Donations of the same thing to two or more different
induced their daughters to lead a corrupt or
donees shall be governed by the provisions concerning the
immoral life, or attempted against their
virtue; sale of the same thing to two or more different persons.
(2) Any person who has been convicted of an (Art. 744)
attempt against the life of the testator, his or The provision of Art. 1544 would apply. To wit:
her spouse, descendants, or ascendants;
(3) Any person who has accused the testator of a Article 1544. If the same thing should have been
crime for which the law prescribes [donated] to different [donees], the ownership
imprisonment for six years or more, if the shall be transferred to the person who may have
accusation has been found groundless; first taken possession thereof in good faith, if it
(4) Any heir of full age who, having knowledge should be movable property.
of the violent death of the testator, should fail
to report it to an officer of the law within a Should it be immovable property, the ownership
month, unless the authorities have already shall belong to the person acquiring it who in
taken action; this prohibition shall not apply good faith first recorded it in the Registry of
to cases wherein, according to law, there is no Property.
obligation to make an accusation;
(5) Any person convicted of adultery or Should there be no inscription, the ownership
concubinage with the spouse of the testator; shall pertain to the person who in good faith was
PROPERTY
RECITS-NOTES-CASES
first in the possession; and, in the absence thereof, A donation made in writing must have the acceptance of
to the person who presents the oldest title, the same be made in writing. Otherwise, the donation
provided there is good faith. shall be void.
An ordinary donee of land who causes the donation to be Article 749 provides that in order that the donation of an
recorded in the Mortgage Law Register in bad faith or immovable may be valid, it must be:
with notice of the rights of an adverse claimant acquires
1. Made in a public document;
no additional rights against such claimant through the
2. Specifying therein the property donated; and
inscription in the registry. (Cagaoan vs. Cagaoan and
3. The value of the charges which the donee must
Register of Deeds of Pangasinan, 43 Phil 554 [1922]) satisfy.
A person who bases his claim to title on an ordinary The acceptance may be made in the same deed of
donation does not improve his position as against an donation or in a separate public document, but it shall not
adverse claimant by recording his title in the mortgage take effect unless it is done during the lifetime of the
register if he, before doing so, has notice of the rights of donor.
such adverse claimant. (Fernandez vs. Mercader and
Noel [1922]) If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and
The donee must accept the donation personally, or this step shall be noted in both instruments.
through an authorized person with a special power for the
purpose, or with a general and sufficient power; For a donation to be valid, the delivery by the donor and
otherwise, the donation shall be void. (Art. 745) the acceptance by the donee must be simultaneous, and
the acceptance by a person other than the true donee must
Kinds of acceptance: be authorized by a proper power of attorney set forth in a
public document. (Genato vs. De Lorenzo, 23 SCRA 618
1. Personal acceptance by the donee himself;
2. Acceptance by an authorized person with a [1968])
general and sufficient power; or Assignments, if any, made by the deceased of real
3. Acceptance by an authorized person with a property for which there was no material consideration,
special power.
should be made in a public document and must be
Acceptance must be made during the lifetime of the donor accepted either in the same document or in a separate one
and of the donee. (Art. 746) (Art. 633, old Civil Code). Assignments or donations
which lack this essential formality have no valid effect.
Persons who accept donations in representation of others
(Uson vs. Del Rosario, et al., 92 Phil 530, [1953])
who may not do so by themselves, shall be obliged to
make the notification and notation of which article 749 If the property was only intended for petitioners, at the
speaks. (Art. 747) time of its writing, the property had not yet been disposed
of in their favor. There is no evidence in the record that
Article 747 applies when the following requisites are
such intention was effectively carried out after the writing
present:
of the note. Inasmuch as the mere expression of an
1. That the acceptance is made through the parents, intention is not a promise, because a promise is an
legal representatives, or authorized agent of the undertaking to carry the intention into effect (17 Am. Jur.
done; 2d, p. 334), the Supreme Court cannot, conclude that
2. That the thing donated is an immovable; and the deceased promised, much less did convey, the
3. That the acceptance is not made in the deed of property in question to the petitioners. (Aldaba v.
donation but in a separate public instrument. (De
CA, 27 SCRA 263 [1969])
Leon)
Article 748 provides the rules on donation of movables: Note that under Art. 749, the donation must be
made on a PUBLIC document. Otherwise, it is
If the value exceeds P5,000.00, then the donation must be void.
in writing. Note that it need not be in a public instrument.
A daughter, as sole heir of her deceased father, executed
If the value is not more than P5,000.00, then the donation a public document recognizing and ratifying a donation
may be made orally or in writing. made by him in life, which donation was void for lack of
An oral donation, to be valid requires the simultaneous compliance with statutory requisites. Held: That though
delivery of the thing or of the document representing the ratification by the heir did not operate retroactively to
right donated. perfect the imperfect donation, yet being supported by a
PROPERTY
RECITS-NOTES-CASES
good consideration, it had the effect of a quitclaim deed Being liberalities, .they remain subject to reduction for
and as such prevented the heir from asserting thereafter inofficiousness upon the donor's death, if they should
any right to the subject of the donation.(Abragan vs. G. de infringe the legitime of a forced heir. (Mateo v. Lagua, 29
Centenera, 46 Phil 213 [1924]) SCRA 864)
But if the donation is void, the donee may still acquire the The action to revoke or reduce the inofficious donation
property by prescription. must be brought by the donor’s compulsory heirs within
five years after the donor’s death. (Art. 1149)
The donation may comprehend all the present property of
the donor, or part thereof, provided he reserves, in full Public policy requires that limitations of the character
ownership or in usufruct, sufficient means for the support mentioned should be imposed upon the owner, but a law
of himself, and of all relatives who, at the time of the which would impose restrictions further than such as are
acceptance of the donation, are by law entitled to be required by public policy may well be regarded unjust and
supported by the donor. Without such reservation, the tending in a contrary direction, as destroying the incentive
donation shall be reduced in petition of any person to acquire property, and as subduing the generous impulse
affected. (Art. 750) of the heart. (Martinez v. Martinez, 1 Phil 182 [1902])
Donations cannot comprehend future property. (Art. 751) When a donation is made to several persons jointly, it is
understood to be in equal shares, and there shall be no
By future property is understood anything which the
right of accretion among them, unless the donor has
donor cannot dispose of at the time of the donation. (id.)
otherwise provided. (Art. 753)
Reason: one cannot give away what he does not have.
The preceding paragraph shall not be applicable to
(Paras)
donations made to the husband and wife jointly, between
A donation of future property is considered null and void. whom there shall be a right of accretion, if the contrary
However, the Civil Code allows the donation of future has not been provided by the donor. (id)
property in what authors generally refer to as “contractual
Instances when accretion is proper: (RIP)
succession.’’ This occurs when in a marriage settlement,
the would-be spouses are allowed to donate mortis causa 1) In case of refusal or repudiation by the donee;
to each other “future property” to the extent permitted 2) In case of incapacity of the donee;
under the rules of testamentary succession. It should be 3) In case of predecease of the donee prior to perfection
observed, however, that strangers cannot donate to the of donation.
future spouses a donation inter vivos of future property,
It’ the donation was a joint one to both donees, one could
the privilege thereto being limited to the future spouses.
not accept independently of his co-donee, for there is no
(Paras, citing Art. 94, Family Code)
accretion among donees unless expressly so provided.
A promise made by a candidate for election that he will, (Genato vs. De Lorenzo, 23 SCRA 618 [1968])
if elected, donate his salary for the education of indigent
The donee is subrogated to all the rights and actions which
but deserving students, is not prohibited. (Collado v.
in case of eviction would pertain to the donor. The latter,
Alonzo, 15 SCRA 562 [1965])
on the other hand, is not obliged to warrant the things
The provisions of article 750 notwithstanding, no person donated, save when the donation is onerous, in which case
may give or receive, by way of donation, more than he the donor shall be liable for eviction to the concurrence of
may give or receive by will. The donation shall be the burden. The donor shall also be liable for eviction or
inofficious in all that it may exceed this limitation. (Art. hidden defects in case of bad faith on his part. (Art. 754)
752)
“Eviction shall take place whenever by a final judgment
The limitation is really on the giver and not on the based on a right prior to the sale (donation) or an act
recipient, despite the misleading phrase “may give or imputable to the vendor (donor), the vendee (donee) is
receive.” (Paras) deprived of the whole or of a part of the thing purchased
(donated).” (Art. 1548)
A person may not give by donation more than what he can
give by will and he may not receive by way of donation Instances when warranty exists: (BOnE-Pro)
more than what the giver may give by virtue of a will. (id)
a) If the donor is in Bad faith;
Donations propter nuptias (by reason of marriage) are b) If the donation is Onerous;
without onerous consideration, the marriage being merely c) If warranty is Expressly made; or
the occasion or motive for the donation, not its causa.
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RECITS-NOTES-CASES
d) If the donation is Propter nuptias unless a Every donation inter vivos, made by a person having no
contrary is stipulated. children or descendants, legitimate or legitimated by
subsequent marriage, or illegitimate, may be revoked or
The right to dispose of some of the things donated, or of
reduced as provided in the next article, by the happening
some amount which shall be a charge thereon, may be
of any of these events: (BAR)
reserved by the donor; but if he should die without having
made use of this right, the property or amount reserved 1. If the donor, after the donation, should have
shall belong to the donee. (Art. 755) legitimate or legitimated or illegitimate children,
even though they be posthumous (Birth);
The ownership of property may also be donated to one 2. If the child of the donor, whom the latter believed
person and the usufruct to another or others, provided all to be dead when he made the donation, should
the donees are living at the time of the donation. (Art. 756) turn out to be living (Reappeance);
3. If the donor subsequently adopt a minor child.
Reversion may be validly established in favor of only the (Adoption) (Art. 760)
donor for any case and circumstances, but not in favor of
other persons unless they are all living at the time of the In the cases referred above, the donation shall be revoked
donation. (Art. 757) or reduced insofar as it exceeds the portion that may be
freely disposed of by will, taking into account the whole
Any reversion stipulated by the donor in favor of a third estate of the donor at the time of the birth, appearance or
person in violation of what is provided in the preceding adoption of a child. (Art. 761)
paragraph shall be void, but shall not nullify the donation.
(id) ARTICLE 760 ARTICLE 771
Applies where the donor Applies where the donor
When the donation imposes upon the donee the obligation at the time of donation had at least one child
to pay the debts of the donor, if the clause does not contain either had no children or already at the time he
any declaration to the contrary, the former is understood thought he had no more made the donation. It does
to be liable to pay only the debts which appear to have not matter whether the
been previously contracted. In no case shall the donee be child is acknowledged or
responsible for the debts exceeding the value of the unacknowledged by the
donor.
property donated, unless a contrary intention clearly
Does not apply to May apply to
appears.(Art. 758)
grandchildren grandchildren.
There being no stipulation regarding the payment of Seeks to protect the Seeks to protect the actual
debts, the donee shall be responsible therefor only when presumptive legitime. legitime.
the donation has been made in fraud of creditors. (Art. REASON: The law presumes that had the donor known
759) he would have (or adopt) a child or that the child he
thought was dead was really alive, he would not have
Article 758 deals with the donation where it is stipulated made the donation or at least he would have made a
that the done should pay the donor’s debts; Article 759 smaller one, because then his own child would have been
deals in cases without stipulation. the object of his affection and generosity. (id)
When there is a stipulation to pay debts, the following Article 760 does not apply to grandchildren. Article 771
rules must apply: may apply instead in those cases.
1) The donee should pay for prior debts unless a Under Par. 2 of Art. 760, the adoption must be that of
stipulation covering the future debts has been agreed minor child (dependent for support), and that the adoption
upon by the parties; and must be with judicial approval.
2) The donee for debts up to the value of the property
donated unless the contrary is stipulated or intended. Article 760 does not apply to:
When there is no stipulation, the donee is not required to a) Donations propter nuptias – revocable under the
pay unless the donation is made in fraud of creditors. family code;
b) Onerous donations – they are contracts;
The donation is always presumed to be in fraud of c) Donations mortis causa. – they are revocable.
creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to the The value of the estate is:
donation. (Art. 759) - The value at the time of B-A-R, plus

PROPERTY
RECITS-NOTES-CASES
- The value of the donation at the time it In this case, the property donated shall be returned to the
was made by the donor. donor, the alienations made by the donee and the
mortgages imposed thereon by him being void, with the
In so far as the free disposal is concerned, the donation
limitations established, with regard to third persons, by
will remain valid up to that extent. In other words, if the
the Mortgage Law and the Land Registration laws. (id)
entire donation can be covered by the free disposal; it
should remain untouched. (Paras) This action shall prescribe after FOUR years from the
noncompliance with the condition, may be transmitted to
Upon the revocation or reduction of the donation by the
the heirs of the donor, and may be exercised against the
birth, appearance or adoption of a child, the property
donee's heirs. (id)
affected shall be returned or its value if the donee has sold
the same. (Art. 762) “Conditions” must be understood to mean the charges or
burdens imposed over. (3 Castan 107), or it may also refer
If the property is mortgaged, the donor may redeem the
to resolutory conditions. (Paras)
mortgage, by paying the amount guaranteed, with a right
to recover the same from the donee. (id) But, it cannot refer to suspensive conditions for if the
condition is not fulfilled, the donation never becomes
When the property cannot be returned, it shall be
effective, and therefore, there will be nothing to revoke.
estimated at what it was worth at the time of the donation.
(id)
(id)
If the parties did not stipulate a period, the courts must fix
If the donee has the property with him, he must return the
a reasonable term. (id)
same.
Where the time within which the condition should be
- If it has been sold, he must return the
fulfilled depends upon the exclusive will of the donee, its
value to the donor;
absolute acceptance and the acknowledgment of its
- If it has been mortgage, and the donor
obligation provided in the deed of donation are sufficient
paid off the debt, he must reimburse the
to prevent the statute of limitations from barring the action
donor;
for annulment of donation. (Central Philippine University
- If the property cannot be returned; he
v. CA, 246 SCRA 511 [1995])
must return the value at the time of
perfection of donation to the donor. When the donee fails to comply with any of the conditions
imposed by the donor, it is the donor who has the right to
The action for revocation or reduction on the grounds set
impugn the validity of the transaction affecting the
forth in article 760 shall prescribe after FOUR years from
donated property, conformably with Art. 764 of the Civil
the birth of the first child, or from his legitimation,
Code, which provides that the right to revoke may be
recognition or adoption, or from the judicial declaration
transmitted to the heirs of the donor and may be exercised
of filiation, or from the time information was received
against the heirs of the donee, and the action prescribes
regarding the existence of the child believed dead. (Art.
four years after the violation of the condition. (Garrido v.
763)
CA and Suplemento, 236 SCRA 450 [1994])
This action cannot be renounced, and is transmitted, upon
If the thing is in the possession of the donee, he must
the death of the donor, to his legitimate and illegitimate
return it back to the donor. If the donee had conveyed it
children and descendants. (id)
already, the conveyance to the third person is void
“First child” refers to first legitimate child. (Paras) UNLESS such third person is an INNOCENT
PURCHASER FOR VALUE.
Mere birth of a natural child is not a ground; it is the
recognition (voluntary or by judicial compulsion) that is If the donor has multiple heirs, and the property donated
the ground for reduction. Therefore, the period of 4 years is divisible,
should start from the time of such recognition or
- Each heir can ask for revocation of his
acknowledgment. (Paras)
own ideal share. (Paras)
Should the cause or ground disappears, it is believed that
But if the property donated is indivisible,
the donation should remain valid. (3 Navarro Amandi 59)
- Each heir can ask for the cash value of his
The donation shall be revoked at the instance of the donor,
share. (id)
when the donee fails to comply with any of the conditions
which the former imposed upon the latter. (Art. 764)
PROPERTY
RECITS-NOTES-CASES
If there is no fulfillment or compliance with the resolutory which he cannot recover from third persons, or the sum
condition, the donation may now be revoked and all rights for which the same has been mortgaged. The value of said
which the donee may have acquired under it shall be property shall be fixed as of the [perfection of] the
deemed lost and extinguished. (Central Philippine donation. (Art. 767)
University v. CA, 246 SCRA 511 [1995])
Article 767 applies when:
The donation may also be revoked at the instance of the
a) Recovery cannot be had from INNOCENT
donor, by reason of ingratitude in the following cases:
PURCHASERS FOR VALUE; or
1. If the donee should commit some offense against b) The thing is mortgaged.
the person, the honor or the property of the donor,
or of his wife or children under his parental Examples in 766-767
authority; 1) Suppose that Tumboy donated a parcel of land to
 [This is purely personal to the acts of the
Buboy on January 1. Buboy sold the thing to Mumoy
donee himself, not to his relatives.]
on January 10. Buboy tried to kill Tumboy on January
 [The enumeration on the relatives of the
12. Tumboy filed a case for revocation on January 15.
donor is exclusive.]
The complaint for annotation was made on January
 [The offense may or may not be a
criminal act. Thus, no criminal 20. Can Tumboy recover the thing?
conviction is required, revocation is  No. For Mumoy is an innocent purchaser for
sufficient by mere preponderance of value. However, he can recover the value of the
evidence.] property from Buboy.
 [Children under parental authority refers 2) Suppose that based on the question above, the sale
to those who are below 18 years of age.] happened in January 22. Same question.
2. If the donee imputes to the donor any criminal  Yes. For Mumoy is not an innocent purchaser for
offense, or any act involving moral turpitude, value. Thus, Tumboy may recover the property.
even though he should prove it, unless the crime 3) Suppose that the sale is made on January 19. Same
or the act has been committed against the donee question.
himself, his wife or children under his authority;
 It depends.
 [This only apply if the donee imputes a
i) IF THE BUYER HAS KNOWLEDGE OF
criminal offense to the donor
PERSONALLY.] THE ACTS = Yes. For actual knowledge is
 [The enumeration on the relatives of the equivalent to registration. Mumoy then is not
donee is exclusive.] an innocent purchaser for value. Thus,
3. If he unduly refuses him support when the donee Tumboy can recover it from Mumoy.
is legally or morally bound to give support to the ii) IF THE BUYER HAS NO KNOWLEDGE
donor. (Art. 765) OF THE ACTS = No. Thus, Tumboy cannot
 [The word or means that if the donee is recover it from Mumoy. But he may recover
bound to give support outside the the value from Buboy.
contemplation of the law but agreed to by 4) What if, based on problem 1, Buboy is insolvent?
the parties, he must render so otherwise,  Tumboy will have the same rights as those
the same is revocable.] possessed by a creditor over an insolvent debtor.
 [The support should not exceed the value 5) What if, based on problem 1, the parcel of land
of the thing donated.]
submerged into the ocean due to global warming?
 [Support ceases when the minor becomes
 Buboy is still bound to respond with damages.
emancipated.]
The principle of res perit domino applies.
This provision applies to:
When the donation is revoked for any of the causes stated
1) Donations inter vivos; and
in article 760, or by reason of ingratitude, or when it is
2) Donations propter nuptias. (Art. 107, Family Code)
reduced because it is inofficious, the donee shall not
Although the donation is revoked on account of return the fruits except from the filing of the complaint.
ingratitude, nevertheless, the alienations and mortgages (Art. 768)
effected before the notation of the complaint for
revocation in the Registry of Property shall subsist. Later If the revocation is based upon noncompliance with any
ones shall be void. (Art. 766) of the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof
In the case [of Art. 766], the donor shall have a right to
demand from the donee the value of property alienated
PROPERTY
RECITS-NOTES-CASES
which he may have received after having failed to fulfill The action for revocation as a rule cannot be transmitted
the condition. (id.) because the right is purely personal and exclusive to the
donor. If however, he has already instituted the action, but
Instances when the fruits may be returned:
dies before its termination, his heirs are allowed to
a) The fruits accruing from the time the action is continue the suit. If, upon the other hand, the donor is
filed must be returned if the ground is: killed by the donee, it follows that the donor never had a
i) BAR; or chance to revoke, in this case the heir may institute the
ii) Inofficiousness under Art. 761; or action within the proper prescriptive period. (5 Manresa
iii) Ingratitude. 183). In the same manner, the heirs may begin the action
b) The fruits received after failure to fulfill the if the donor died without having known of the act of
condition must be returned if the ground is non- ingratitude. (5 Manresa 184).
compliance with any of the conditions imposed.
Donations which in accordance with the provisions of
If the property donated was MONEY, fruits thereof shall article 752, are inofficious, bearing in mind the estimated
be the legal rate of interest (6%) unless a contrary is net value of the donor's property at the time of his death,
agreed upon by the parties. shall be reduced with regard to the excess; but this
reduction shall not prevent the donations from taking
The action granted to the donor by reason of ingratitude effect during the life of the donor, nor shall it bar the
cannot be renounced in advance. This action prescribes donee from appropriating the fruits. (Art. 771)
within one year, to be counted from the time the donor
had knowledge of the fact and it was possible for him to Donations inter vivos are preferred over donations mortis
bring the action. (Art. 769) caua
The right to revoke because of ingratitude cannot be Note that the value of the estate is that which it had, not
renounced in advance. However, if the act of ingratitude at the time of donation, but at the time of the donor’s
has already been committed, the right to revoke may be death. The property left minus debts and charges plus the
renounced for this would be merely an act of forgiveness. value of the donation equals the net hereditary estate.
(Paras) (Paras)
Requisites for valid renunciation: Inofficious donations may not only be reduced; they may
be completely cancelled. Since the inofficiousness of the
1) The donor is aware of the act causing the ingratitude; donation cannot be determined till after the donor’s death,
and it follows that in the meantime, the donation is valid and
2) The donor has the capacity to dispose his property at ownership is transmitted to the donee during the donor’s
the time the waiver is made. lifetime.(id)
The renunciation may be made may be made expressly or If real estate has been donated, and it is inconvenient to
impliedly. However, when express renunciation is made, divide it (in case a reduction is to be made), then it will go
it is believed that this must comply with formalities of to the donee if the reduction is less than 60%, otherwise it
donations. Hence, if the property donated was land, the goes to the compulsory heirs; but in either case there must
renunciation of past ingratitude, should, it is believed, be be a reimbursing of each other. (id, citing Art. 912)
in the form of public instrument. (Paras)
Only those who at the time of the donor's death have a
The action to revoke must be exercise within one year, right to the legitime and their heirs and successors in
provided that: interest may ask for the reduction or inofficious
1) The donor is aware of the act causing the ingratitude; donations. They cannot renounce their right during the
and lifetime of the donor, either by express declaration, or by
2) It was possible for him to bring the action. consenting to the donation. (Art. 772)
This action shall not be transmitted to the heirs of the Who may ask for reduction?
donor, if the latter did not institute the same, although he - The compulsory heirs of the donor;
could have done so, and even if he should die before the - The heirs, and successors in interests of
expiration of one year. (Art. 770) the compulsory heirs of the donors.
Neither can this action be brought against the heir of the Who cannot ask for reduction?
donee, unless upon the latter's death the complaint has
been filed. (id.)
PROPERTY
RECITS-NOTES-CASES
- The donor himself (you cannot determine Santos City, which approved them. Consequently, 16
whether the donation is inofficious original certificates of title (OCTs) covering Lot X were
during the lifetime of the donor. issued in the names of respondents-intervenors and
- Voluntary heirs of the donor; several others. In September 1997, these 16 titles were
- Devisees; simultaneously conveyed to herein respondent AFP-
- Legatees; Retirement and Separation Benefits System (AFP-RSBS),
- Creditors of the deceased. resulting in the issuance of 16 new titles (the AFP-RSBS
titles). On September 11, 1998, herein petitioner Republic
The action prescribes for FIVE years.
of the Philippines instituted a Complaint for reversion,
The donees, devisees and legatees, who are not entitled to cancellation and annulment of the AFP-RSBS titles, on
the legitime and the creditors of the deceased can neither the thesis that they were issued over a public park which
ask for the reduction nor avail themselves thereof. (id.) is classified as inalienable and non-disposable public
land. The RTC ruled in favor of the Republic. The CA
If the donee happens to be a compulsory heir, he must reversed the decision of the RTC.
collate the property donated, for its value is considered
already an advance of his legitime or inheritance. The Issue: Did the CA erred in reversing the decision of the
donee’s share of the estate shall be reduced by an amount RTC?
equal to that already received by him; and his co-heirs
Ruling: Yes. Respondents-intervenors no longer had any
shall receive an equivalent, as much as possible, in
right to Lot X – not by acquisitive prescription, and
property of the same nature, class, and quality.
certainly not by sales patent. In fact, their act of applying
If, there being two or more donations, the disposable for the issuance of miscellaneous sales patents operates as
portion is not sufficient to cover all of them, those of the an express acknowledgment that the State, and not
more recent date shall be suppressed or reduced with respondents-intervenors, is the owner of Lot X. It is
regard to the excess. (Art. 773) erroneous to suppose that respondents-intervenors
possessed title to Lot X when they applied for
Republic v. AFP Retirement and Separation miscellaneous sales patents, for the premise of such grant
Benefits System or privilege is precisely that the State is the owner of the
land, and that the applicant acknowledges this and
Republic v. AFP Retirement and Separation Benefits
surrenders to State ownership. Under the law,
System
respondents-intervenors are charged with knowledge of
G.R. No. 180463; January 16, 2013; Second Division
the law; they cannot feign ignorance. In fact, they could
J. Del Castillo
not claim to be unaware of Proc. 168, for precisely they
Facts: Lots X, Y-1 and Y-2 – lands of the public domain hid under its protective mantle to seek the invalidation of
consisting of 52,678 square meters located in Barrio a donation claimed to have been made by them to one Jose
Dadiangas, General Santos were reserved for recreation Tayoto. Thus, an alleged donee (Tayoto) of property
and health purposes by virtue of Proclamation No. 168 located within Lots X, Y-1, and Y-2 filed a case for
issued in 1963. In 1983, Proclamation No. 2273 was quieting of title against the donors – herein respondents-
issued amending Proc. 168, and removing and intervenors – to protect the property which they allegedly
segregating Lots Y-1 and Y-2 from the reservation and donated to him, which was then in danger of being lost for
declaring them open for disposition to qualified the reason that respondents-intervenors supposedly
applicants. As a result, only Lot X – which consists of reneged on the donation. Respondents-intervenors filed
15,020 square meters – remained part of the reservation an urgent motion to dismiss the Complaint claiming,
now known as Magsaysay Park. Respondents-intervenors among others, the "invalidity of the donation as the
waged a campaign – through petitions and pleas made to subject thereof had not yet been excluded from the
the President – to have Lots Y-1 and Y-2 taken out of the Magsaysay Park." Be that as it may, the donation is void.
reservation for the reason that through their predecessor There are three essential elements of donations: [1] the
Cabalo Kusop (Kusop), they have acquired vested private reduction of the patrimony of the donor, [2] the increase
rights over these lots. This campaign resulted in Proc. in the patrimony of the donee, and [3] the intent to do an
2273, which re-classified and returned Lots Y-1 and Y-2 act of liberality (animus donandi). Granting that there is
to their original alienable and disposable state. In 1997, an animus donandi, we find that the alleged donation
respondents-intervenors filed applications for the lacks the first two elements which presuppose the donor's
issuance of individual miscellaneous sales patents over ownership rights over the subject of the donation which
the whole of Lot X with the Department of Environment he transmits to the donee thereby enlarging the donee's
and Natural Resources (DENR) regional office in General estate. This is in consonance with the rule that a donor
PROPERTY
RECITS-NOTES-CASES
cannot lawfully convey what is not his property. In other Minors and other incapacitated persons may acquire
words, a donation of a parcel of land the dominical rights property or rights by prescription, either personally
of which do not belong to the donor at the time of the or through their parents, guardians or legal
donation, is void. This holds true even if the subject of the representatives. (1931a)
donation is not the land itself but the possessory and
proprietary rights over said land. In this case, although Article 1108. Prescription, both acquisitive and
they allegedly declared Magsaysay Park as their own for extinctive, runs against:
taxation purposes, the heirs of Cabalo Kusop did not have
any transmissible proprietary rights over the donated (1) Minors and other incapacitated persons
property at the time of the donation. In fact, with respect who have parents, guardians or other legal
to Lot Y-2, they still had to file a free patents application representatives;
to obtain an original certificate of title thereon. This is
because Proclamation No. 2273 declaring as ‘open to (2) Absentees who have administrators,
disposition under the provisions of the Public Land Act’ either appointed by them before their
some portions of the Magsaysay Park, is not an operative disappearance, or appointed by the courts;
law which automatically vests rights of ownership on the
heirs of Cabalo Kusop over their claimed parcels of land. (3) Persons living abroad, who have
The interpretation of said proviso should even be more managers or administrators;
stringent in this case considering that with respect to Lot
Y-1, the heirs of Cabalo Kusop do not appear to have (4) Juridical persons, except the State and its
taken even the initial steps mandated by the Public Land subdivisions.
Act for claimants of the land excluded from the public
domain. The alleged donation was therefore no more than Persons who are disqualified from administering
an exercise in futility. their property have a right to claim damages from
their legal representatives whose negligence has
Petition granted. been the cause of prescription. (1932a)
Article 1109. Prescription does not run between

husband and wife, even though there be a separation
TITLE V of property agreed upon in the marriage settlements
PRESCRIPTION or by judicial decree.
Neither does prescription run between parents and

Compiler’s note: This should be in Obligations and children, during the minority or insanity of the latter,
Contrancts and not in Property. Hence, no further notes and between guardian and ward during the
will be added here. continuance of the guardianship. (n)
CODAL PROVISIONS Article 1110. Prescription, acquisitive and
extinctive, runs in favor of, or against a married
CHAPTER 1 woman. (n)
General Provisions
Article 1111. Prescription obtained by a co-
Article 1106. By prescription, one acquires proprietor or a co-owner shall benefit the others.
ownership and other real rights through the lapse of (1933)
time in the manner and under the conditions laid
down by law. Article 1112. Persons with capacity to alienate
property may renounce prescription already
In the same way, rights and conditions are lost by obtained, but not the right to prescribe in the future.
prescription. (1930a)
Prescription is deemed to have been tacitly
Article 1107. Persons who are capable of acquiring renounced when the renunciation results from acts
property or rights by the other legal modes may which imply the abandonment of the right acquired.
acquire the same by means of prescription. (1935)
PROPERTY
RECITS-NOTES-CASES
Article 1113. All things which are within the The old possession is not revived if a new possession
commerce of men are susceptible of prescription, should be exercised by the same adverse claimant.
unless otherwise provided. Property of the State or (1944a)
any of its subdivisions not patrimonial in character
shall not be the object of prescription. (1936a) Article 1122. If the natural interruption is for only
one year or less, the time elapsed shall be counted in
Article 1114. Creditors and all other persons favor of the prescription. (n)
interested in making the prescription effective may
avail themselves thereof notwithstanding the express Article 1123. Civil interruption is produced by
or tacit renunciation by the debtor or proprietor. judicial summons to the possessor. (1945a)
(1937)
Article 1124. Judicial summons shall be deemed not
Article 1115. The provisions of the present Title are to have been issued and shall not give rise to
understood to be without prejudice to what in this interruption:
Code or in special laws is established with respect to
specific cases of prescription. (1938) (1) If it should be void for lack of legal
solemnities;
Article 1116. Prescription already running before the
effectivity of this Code shall be governed by laws (2) If the plaintiff should desist from the
previously in force; but if since the time this Code complaint or should allow the proceedings to
took effect the entire period herein required for lapse;
prescription should elapse, the present Code shall be
applicable, even though by the former laws a longer (3) If the possessor should be absolved from
period might be required. (1939) the complaint.
CHAPTER 2 In all these cases, the period of the interruption shall

Prescription of Ownership and Other Real be counted for the prescription. (1946a)
Rights
Article 1125. Any express or tacit recognition which
Article 1117. Acquisitive prescription of dominion the possessor may make of the owner's right also
and other real rights may be ordinary or interrupts possession. (1948)
extraordinary.
Article 1126. Against a title recorded in the Registry
Ordinary acquisitive prescription requires possession of Property, ordinary prescription of ownership or
of things in good faith and with just title for the time real rights shall not take place to the prejudice of a
fixed by law. (1940a) third person, except in virtue of another title also
recorded; and the time shall begin to run from the
Article 1118. Possession has to be in the concept of recording of the latter.
an owner, public, peaceful and uninterrupted. (1941)
As to lands registered under the Land Registration
Article 1119. Acts of possessory character executed Act, the provisions of that special law shall govern.
in virtue of license or by mere tolerance of the owner (1949a)
shall not be available for the purposes of possession.
(1942) Article 1127. The good faith of the possessor
consists in the reasonable belief that the person from
Article 1120. Possession is interrupted for the whom he received the thing was the owner thereof,
purposes of prescription, naturally or civilly. (1943) and could transmit his ownership. (1950a)
Article 1121. Possession is naturally interrupted Article 1128. The conditions of good faith required
when through any cause it should cease for more than for possession in articles 526, 527, 528, and 529 of
one year. this Code are likewise necessary for the
determination of good faith in the prescription of
ownership and other real rights. (1951)
PROPERTY
RECITS-NOTES-CASES
Article 1129. For the purposes of prescription, there (1) The present possessor may complete the
is just title when the adverse claimant came into period necessary for prescription by tacking
possession of the property through one of the modes his possession to that of his grantor or
recognized by law for the acquisition of ownership predecessor in interest;
or other real rights, but the grantor was not the owner
or could not transmit any right. (n) (2) It is presumed that the present possessor
who was also the possessor at a previous
Article 1130. The title for prescription must be true time, has continued to be in possession
and valid. (1953) during the intervening time, unless there is
proof to the contrary;
Article 1131. For the purposes of prescription, just
title must be proved; it is never presumed. (1954a) (3) The first day shall be excluded and the last
day included. (1960a)
Article 1132. The ownership of movables prescribes
through uninterrupted possession for four years in
good faith.
CHAPTER 3
The ownership of personal property also prescribes Prescription of Actions
through uninterrupted possession for eight years,
without need of any other condition. Article 1139. Actions prescribe by the mere lapse of
time fixed by law. (1961)
With regard to the right of the owner to recover
personal property lost or of which he has been Article 1140. Actions to recover movables shall
illegally deprived, as well as with respect to prescribe eight years from the time the possession
movables acquired in a public sale, fair, or market, or thereof is lost, unless the possessor has acquired the
from a merchant's store the provisions of articles 559 ownership by prescription for a less period,
and 1505 of this Code shall be observed. (1955a) according to articles 1132, and without prejudice to
the provisions of articles 559, 1505, and 1133.
Article 1133. Movables possessed through a crime (1962a)
can never be acquired through prescription by the
offender. (1956a) Article 1141. Real actions over immovables
prescribe after thirty years.
Article 1134. Ownership and other real rights over
immovable property are acquired by ordinary This provision is without prejudice to what is
prescription through possession of ten years. (1957a) established for the acquisition of ownership and
other real rights by prescription. (1963)
Article 1135. In case the adverse claimant possesses
by mistake an area greater, or less than that expressed Article 1142. A mortgage action prescribes after ten
in his title, prescription shall be based on the years. (1964a)
possession. (n)
Article 1143. The following rights, among others
Article 1136. Possession in wartime, when the civil specified elsewhere in this Code, are not
courts are not open, shall not be counted in favor of extinguished by prescription:
the adverse claimant. (n)
(1) To demand a right of way, regulated in
Article 1137. Ownership and other real rights over article 649;
immovables also prescribe through uninterrupted
adverse possession thereof for thirty years, without (2) To bring an action to abate a public or
need of title or of good faith. (1959a) private nuisance. (n)
Article 1138. In the computation of time necessary Article 1144. The following actions must be brought
for prescription the following rules shall be within ten years from the time the right of action
observed: accrues:
PROPERTY
RECITS-NOTES-CASES
(1) Upon a written contract; Article 1151. The time for the prescription of actions
which have for their object the enforcement of
(2) Upon an obligation created by law; obligations to pay principal with interest or annuity
runs from the last payment of the annuity or of the
(3) Upon a judgment. (n) interest. (1970a)
Article 1145. The following actions must be Article 1152. The period for prescription of actions
commenced within six years: to demand the fulfillment of obligation declared by a
judgment commences from the time the judgment
(1) Upon an oral contract; became final. (1971)
(2) Upon a quasi-contract. (n) Article 1153. The period for prescription of actions
to demand accounting runs from the day the persons
Article 1146. The following actions must be who should render the same cease in their functions.
instituted within four years:
The period for the action arising from the result of
(1) Upon an injury to the rights of the the accounting runs from the date when said result
plaintiff; was recognized by agreement of the interested
parties. (1972)
(2) Upon a quasi-delict;
Article 1154. The period during which the obligee
However, when the action arises from or out of any was prevented by a fortuitous event from enforcing
act, activity, or conduct of any public officer his right is not reckoned against him. (n)
involving the exercise of powers or authority arising
from Martial Law including the arrest, detention Article 1155. The prescription of actions is
and/or trial of the plaintiff, the same must be brought interrupted when they are filed before the court,
within one (1) year. (As amended by PD No. 1755, when there is a written extrajudicial demand by the
Dec. 24, 1980.) creditors, and when there is any written
acknowledgment of the debt by the debtor. (1973a)
Article 1147. The following actions must be filed
within one year: -----
(1) For forcible entry and detainer;
(2) For defamation. (n)
Article 1148. The limitations of action mentioned in

articles 1140 to 1142, and 1144 to 1147 are without
prejudice to those specified in other parts of this
Code, in the Code of Commerce, and in special laws.
(n)
Article 1149. All other actions whose periods are not

fixed in this Code or in other laws must be brought
within five years from the time the right of action
accrues. (n)
Article 1150. The time for prescription for all kinds

of actions, when there is no special provision which
ordains otherwise, shall be counted from the day they
may be brought. (1969)


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Property Book Ii Property, Ownership, and ITS Modifications: Recits-Notes-Cases

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PROPERTY

ITS Things are classified into three groups:

1. Res communes – are things which belong to

Property is an object or right which is As to Mobility 1.Immovable/Real property

1|LEX PAEDAGOGUS – Bulacan State University – College of Law

(7) Fertilizer actually used on a piece of land;

4|LEX PAEDAGOGUS – Bulacan State University – College of Law

a. Classify the following properties: Who can own private property?

1. Public schools. Under Art. 425, private properties consists of:

1. Patrimonial property; and

4. Playgrounds. A parcel of land is owned by the state. It was

b. What if the state donated it to the LGU

6|LEX PAEDAGOGUS – Bulacan State University – College of Law

7|LEX PAEDAGOGUS – Bulacan State University – College of Law

Motion for reconsideration granted. Petition denied.

FELS Energy Inc. v. The Province of Batangas Soriano v. Sps Galit

10|LEX PAEDAGOGUS – Bulacan State University – College of Law

11|LEX PAEDAGOGUS – Bulacan State University – College of Law

cases shall proceed independently.

Can there be execution pending action in

Yes. The RTC can execute a judgment for unlawful

jurisdiction to order the execution of its final judgment

at the same time so long as they pursue different purposes

A is the owner of the lot. B is occupying a

against A. A won. A asked for execution of the

Yes it is possible. The question resolved in accion

14|LEX PAEDAGOGUS – Bulacan State University – College of Law

Define natural fruits. A is the owner of the lot. He made

A female cow owned by B was leased by A for

a. Who owns the calves?

17|LEX PAEDAGOGUS – Bulacan State University – College of Law

If both are in bad faith? If both are in bad faith?

Landowner in good Landowner in bad

does not remove or has been built,

Figure 1. Rights and duties of parties under Art. 447

18|LEX PAEDAGOGUS – Bulacan State University – College of Law

Art. 452 for the

19|LEX PAEDAGOGUS – Bulacan State University – College of Law

20|LEX PAEDAGOGUS – Bulacan State University – College of Law

What are the different classes of accession

Distinguish alluvium from avulsion.

21|LEX PAEDAGOGUS – Bulacan State University – College of Law

e. Can the government undertake the

Referring to Figure 6, suppose that due to the

The dry bed would belong to the state. Article 502 of

Suppose that a pond went dry and A & B’s land

22|LEX PAEDAGOGUS – Bulacan State University – College of Law

Pond – is a body of water without an outlet, larger than a 1. Inclusion;

Adjunction is the union of two or more movable things

23|LEX PAEDAGOGUS – Bulacan State University – College of Law

acquires the property upon accessory thing shall have

No. By express provision of law, quieting of title is

25|LEX PAEDAGOGUS – Bulacan State University – College of Law

What are the requisites for co-ownership? In co-ownership by

29|LEX PAEDAGOGUS – Bulacan State University – College of Law

As a co-owner, he may, by himself alone, bring an action B C

31|LEX PAEDAGOGUS – Bulacan State University – College of Law