Property
b. Intangible.
PROPERTY
CHARACTERISTICS
GR: Those properties belonging to everyone.
While in particular no one owns common
property, still in another sense, res communes are
really owned by everybody in that their use and
enjoyment are given to all of mankind. (Paras,
2008) e.g. air, wind, sunlight.
All things which are or may be the object of
appropriation considered as either real or
personal property. (NCC, Art. 414)
It is an object or a right which is appropriated or
susceptible of appropriation by man, with
capacity to satisfy human wants and needs.
(Pineda, 1999)
NOTE: Property does not only cover material
things because it mentions of rights which could
either be classified as real or personal right.
Distinction between things and property
1. The term thing is broader in scope than
property. All kinds of property are things
but not all things are property;
2. Things refer to all objects that exist
including those which could not be
appropriated by man. Property refers to
objects already possessed by man or are in
their possession;
3. Things involve only corporeal objects.
Property may refer to intangible matters.
(Pineda, 2009)
Q: Are the rights under the Bill of Rights
considered as property?
A: NO. They are not susceptible of
appropriation.
Requisites for a thing to be considered as
property (USA)
1. Utility It can serve as a means to satisfy
human needs;
2. Substantivity/Individuality It has a
separate and autonomous existence and not
simply a part of a whole.
3. Appropriability - Susceptibility to
ownership/possession, even if not yet
actually appropriated.
171
irrespective of its ownership;
Properties NOT susceptible of appropriation
1. Common things (res communes)
XPN: Those that may be appropriated
under certain conditions in a limited way.
e.g. electricity, oxygen, distilled water
2. Not susceptible due to physical impossibility
e.g. sun, moon, and other heavenly bodies
3. Not susceptible due to legal impossibility
e.g. human body while the person is alive
The human body is NOT a property
It is neither real nor personal property, whether
alive or dead. It is not even property at all, in that
it generally cannot be appropriated.
While a human being is alive, he cannot, as such,
be the object of a contract, for he is considered
outside the commerce of man. He may donate
part of his blood, may even sell part of his hair,
but he cannot sell his body. (Paras, 2008)
Under the R.A. 7170 or the Organ Donation Act
of 1991, donation of all or a part of a human body
i.e., the
irreversible cessation of circulatory and
respiratory functions or the irreversible
cessation of all functions of the entire brain,
including the brain system) [Sec. 2(j), RA 7170, as
amended]
CLASSIFICATIONS OF PROPERTY
1. As to nature/mobility
a. Immovable or real property; and
b. Movable or personal property.
2. As to ownership
a. Public dominion; and
b. Private ownership.
3. As to alienability
a. Alienable or within the commerce of
men; and
b. Inalienable or outside the commerce
of men.
4. As to individuality
a. Specific property; and
b. Generic property.
5. As to susceptibility to touch
a. Tangible; and
Civil Law
6. As to susceptibility to substitution
a. Fungible; and
b. Non-fungible.
7. As to accession dependence or importance
a. Principal; and
b. Accessory
8. As to existence
a. Existing or present property (res
existentes); and
b. Future property (res futurae)
9. As to consumability
a. Consumable; and
b. Non-consumable
10. As to divisibility
a. Divisible; and
b. Indivisible
CLASSIFICATIONS OF THINGS
1. Res nullius belonging to no one
Those objects which have not yet been
appropriated, or have been abandoned by
the owner with the intention of no longer
owning them.
2. Res communes belonging to everyone
Things which are used and enjoyed by all of
mankind. (e.g. sunlight, starlight, and wind)
3. Res alicujus belonging to someone
Objects, whether tangible or intangible,
which are privately owned, either in a
collective or individual capacity
CLASSIFICATION OF PROPERTY BY MOBILITY
REAL OR IMMOVABLE PROPERTY
(1995, 1997, 2007 BBAR)
Categories of immovable property:
Real properties are categorized by: (NIDA)
1. Nature Those which by their essence and
nature are immovable or cannot be moved
from one place to another;
2. Incorporation Those which are attached to
an immovable in a fixed manner and
considered as an integral part thereof,
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
3. Destination Things placed in buildings or
on lands by the owner of the immovable or
his agent in such a manner that it reveals the
intention to attach them permanently
thereto; and
4. Analogy Classified by express provision of
law or those which are not actually tangible
properties but are rights and interests over
existing immovable properties.
IMMOVABLE BY NATURE AND
INCORPORATION
Par. 1, Art. 415. Land, buildings, roads and
constructions of all kinds adhered to the soil.
Land
By its very nature is immovable property. In
whatever transaction land is involved, it is
always immovable.
A truck full of soil taken from the land (like
garden soil) becomes a personal property
because it is no longer adhered to the land.
However, the moment it is used to cover a land
for ornamentation or gardening, it becomes
immovable again. (Pineda, 2009)
Building
GR: A building is always immovable whether
built i
XPN: When a building is merely superimposed
on the soil or is sold for immediate demolition,
in which case it may be considered as movable
or personal property. (e.g. Barong-barongs are
not permanent structures but mere
superimpositions on land.)
Effect of demolition of a house
Once a house is demolished, its character as an
immovable ceases because a house is classified
as an immovable property by reason of its
adherence to the soil on which it is built.
(Bicerra v. Teneza, G.R. No. L-16218, November
29, 1962)
Mortgage of a building erected on a land
belonging to another
A building, by itself, may be mortgaged apart
from the land on which it was built even if a
172
 Property
mortgage of land necessarily includes, in the
absence of stipulation of the improvements
thereon, buildings. Such a mortgage would still
be a real estate mortgage (REM) for the building
would still be considered immovable property
even if dealt with separately and apart from the
land. (Yee v. Strong Machinery Company, G.R. No.
11658, February 15, 1918)
A building can be the subject of a chattel
mortgage
When the parties have so expressly designated,
especially when it is considered that the
property given as a security is a house of mixed
materials which by its very nature is considered
as personal property. (Luna v. Encarnacion, G.R.
No. L-4637, June 30, 1952)
Requisites for a building to be the subject of a
chattel mortgage
1. Parties mutually agreed to consider the
house a personal property; and
2. That no innocent third party is prejudiced.
NOTE: Under the doctrine of estoppel, parties to
a contract who agreed to treat as personal
property that which by nature would be real
property are prohibited from assuming
inconsistent positions and repudiating an
obligation voluntarily assumed.
Insofar as execution proceedings are considered,
the house or building is considered real
property.
A building subjected to a chattel mortgage
cannot be sold extrajudicially. For purposes of
sale at public auction on execution sales, the
building or house shall be treated as real
property. The requirements of the Rules of Court
on foreclosure of real estate mortgages must
therefore be followed. (Pineda, 2009)
Par. 2, Art. 415. Trees, plants and growing
fruits, while they are attached to the land or
form an integral part of an immovable.
Trees and Plants
1. A real property; or
a. By nature - If they are spontaneous
products of the soil; or
b. By incorporation - If they have been
planted through cultivation or labor.
173
2. A personal property.
The moment trees are detached or uprooted
from the land it is considered as personal
property.
NOTE: In case of uprooted timber, they are still
not considered as personal property because
timber is an integral part of the timber land.
Growing fruits
GR: Growing fruits are considered as real
property so long as they are still attached to the
soil. Once removed from the soil, they become
personal properties.
XPN: Growing fruits may be exceptionally
treated as personal property pursuant to the
provisions of Art. 416(2) of the New Civil Code.
(Rabuya, 2008)
E.g.
1. For the purposes of sale of the whole or part
of the crops;
2. For purposes of attachment and execution;
and
3. For applying the provisions of the Chattel
Mortgage Law.
IMMOVABLE BY INCORPORATION
Par. 3, Art. 415. Everything attached to an
immovable in a fixed manner, in such a
way that it cannot be separated therefrom
without breaking the material or
deterioration of the object.
An incorporated thing is considered as real
property when in cases of separation, the injury,
breakage, or deterioration is substantial.
Res vinta
These are immovables by incorporation, which
when separated from the immovable, regain
their condition as movable.
Steel towers are personal properties
They are not buildings adhered to the soil [(NCC,
Art. 415(1)]; they are not attached to an
immovable in a fixed manner; they can be
separated without substantial damage or
deterioration, and they are not machineries
intended for works on the land. (Board of
Civil Law
Assessment Appeals v. Meralco, G.R. No. L- 15334,
January 31, 1964) 1. The industry or work must be Carried on in
a building or on a piece of land;
IMMOVABLE BY INCORPORATION & BY
DESTINATION 2. The machinery must:
Par. 4, Art. 415. Statues, reliefs, paintings a. Be placed by the Owner of the
or other objects for use or ornamentation, tenement or his agent;
placed in buildings or on lands by the b. Tend directly to meet the needs of
owner of the immovable in such a manner the said industry or work; and
that it reveals the intention to attach them
permanently to the tenements. 3. Be Essential and principal to the industry or
work, and not merely incidental thereto.
Machinery placed by a tenant or by a
usufructuary is NOT real property.
This means that the objects must be placed by
the owner of the immovable and not necessarily
Since it is placed by a person having only a
the owner of the object.
temporary right, it does not become
immobilized. (Valdez v. Central Altagracia, 225
Requisites
U.S. 58, 1912)
1. Placed in buildings or on lands by the owner
Where a tenant places the machinery under the
of the immovable or by his agent; and
express provision of lease that it shall become a
2. Placed there in a manner that it reveals the
part of the land belonging to the owner upon the
intention to attach them permanently to the
termination of the lease without compensation
tenements.
to the lessee, the tenant acts as an agent of the
owner and the immobilization of the
Par. 3 distinguished from Par. 4
machineries arises from the act of the owner in
PAR. 3 PAR. 4
giving by contract a permanent destination to
Cannot be Can be separated
the machinery. (Ibid.)
separated from the from the
immovable immovable without
Equipment and living quarters of the crew
without breaking breaking or
permanently attached are immovable
or deterioration. deterioration.
properties
Need not be placed Must be placed by It is intended to meet the needs of the industry
by the owner. the owner of the
being undertaken by MPC. The equipment
immovable, or by partakes of the nature of the immovable upon
his agent whether which it has been placed.
express or implied.
The living quarters, if attached to the immovable
platform with permanence, becomes an
Real property by Real property by
immovable as well. Permanence means they
incorporation. incorporation and cannot be separated without destroying the
destination.
platform or the quarters. If the attachment is not
permanent, or not merely superimposed on the
platform, then the living quarters are movable
Par. 5, Art. 415. Machinery, receptacles,
properties. (2007 BAR)
instruments or implements intended by the
owner of the tenement for an industry or Equipment of a transportation business
works which may be carried on in a
classified as personal property
building or on a piece of land & which tend
directly to meet the needs of the said
A transportation business is not carried on in a
industry or works.
building or on a specified land. Hence,
equipment destined only to repair or service a
Requisites for machinery to be considered transportation business may not be deemed real
real property (COTE) property, but personal property.
UNIVERSITY OF SANTO TOMAS 174
2021 GOLDEN NOTES
 Property
Machines must be essential and principal
elements in the industry and must directly meet
the needs of said industry. It does not include
movables which are merely incidentals, without
which the business can still continue or carry on
their functions.
Cash registers, typewriters, etc. usually found
and used in hotels and restaurants are merely
incidentals not considered immobilized by
destination because these businesses can carry
on their functions without this equipment.
(Mindanao Bus Co. v. City Assessor and Treasurer,
G.R. No. L-17870, September 29, 1962)
Machineries bolted or cemented on real
property mortgaged
It is NOT considered an immovable property.
The fact that machineries were bolted or
cemented on real property mortgaged does not
make them ipso facto immovable under Art. 415
into.
When immovable property by nature may be
treated as a chattel
Even if the properties appear to be immovable
by nature, nothing detracts the parties from
treating them as chattels to secure an obligation
under the principle of estoppel. (Tsai v. CA, G.R.
No. 120098, October 2, 2001)
Effect of temporary separation of movables
from the immovables to which they are
attached
There are two views:
1. They continue to be regarded as
immovables; and
2. Fact of separation determines the condition
of the objects thus recovering their
condition as movables.
Machines though essential and principal
elements of the industry are personal
properties when provided in the lease
agreement
deemed personal property pursuant to the Lease
Agreement is good only insofar as the
contracting parties are concerned. Hence, while
the parties are bound by the Lease Agreement,
175
third persons acting in good faith are not
affected by its stipulation characterizing the
subject machinery as personal.
Inc. v. PCI Leasing and Finance, Inc., G.R. No.
137705, August 22, 2000)
Par. 6, Art. 415. Animal houses, pigeon-
houses, beehives, fish ponds or breeding
places of similar nature, in case their
owner has placed them or preserves them
with the intention to have them
permanently attached to the land, and
forming a permanent part of it; the
animals in these places are included.
Animal Houses, Pigeon Houses, Etc.
These are immovables by destination or by
incorporation. The Code requires that they be
placed by the owner of the land in order to
acquire the nature of real property. However,
they are still considered as real property even if
not placed by the owner if such structures are
adhered to the soil in a permanent manner.
Beehives, Fishponds or Breeding Places of
Similar Nature Are Real Property; Animals
Contained Therein, Included
When purposely constructed or attached to the
ground or on another immovable (like a tree-
wall), fishponds and other similar breeding
places, like cemented container where breeding
of fishes or crustaceans is done, are considered
immovable property if the owner of the land or
tenement intended them to be permanent
The animals in the animal houses, the pigeons in
the pigeon houses, the bees in the beehives, the
fish in the fishponds are included and
considered part of the immovable property.
(Pineda, 2009)
Cages are not included
It will be considered as personal property since
they can be moved from one place to another.
Par. 7, Art. 415. Fertilizer actually used on a
piece of land.
Fertilizers in sacks are not included
Fertilizers which are still in the sacks, although
there is intention to place them or use them on
land, are movable. Only fertilizers actually used
on a piece of land are deemed immovable since
Civil Law
it is already placed in the land and can never be
separated from it.
Par. 8, Art. 415. Mines, quarries and slag
dumps, while the matter thereof forms part
of the bed, and waters either running or
stagnant.
By their nature, mines quarries and slag dumps
are immovable property.
Mines - These are mineral lands where
excavations are done to extract minerals such as
gold, ores etc.
Quarries - These are lands where stones are
chipped of or where sand is being extracted.
Slag dumps - They consist of waste and dirt
taken from a mine and mounted on the surface
of the ground under excavation
Running or Stagnant Waters These waters
refer to waters still running through the soil or
ground in mines and quarries. (Pineda, 2009)
Par. 9, Art. 415. Docks and structure which,
though floating, are intended by their
nature and object to remain at a fixed place
on a river, lake or coast.
When power barges are classified as real
properties
Power barges are categorized as immovable
property by destination, being in the nature of
machinery and other implements intended by
the owner for an industry or work which may be
carried on in a building or on a piece of land and
which tend directly to meet the needs of said
industry or work. (Fels Energy, Inc. v. Province of
Batangas, G.R. No. 168557, February 19, 2007)
Floating platform is an immovable property
The platform is an immovable property by
destination. It was intended by the owner to
remain at a fixed place on a river or coast. Art.
415 (9) of the NCC considers as real property
intended by their nature and object to remain at a
fixed (Fels
Energy, Inc. v. The Province of Batangas, G.R. No.
168557, February 16, 2007)
Vessels are considered personal property under
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
the civil law and common law and occasionally
referred to as peculiar kind of personal property.
It is essential that a record of documents affecting
the title to a vessel be entered in the record of
the Collector of Customs at the port of entry.
(Code of Commerce, Art.585)
Par. 10, Art. 415. Contracts for public works
and servitudes and other real rights over
immovable property.
Immovable by Analogy
These properties refer to contracts for public
works, servitudes and real rights over
immovable property (like usufruct). They are
inseparable from their sources which are
immovable, Hence, for convenience, they are
considered immovable not by their nature,
destination or incorporation but by analogy.
While no tangible, they have the characteristics
of real property. (Pineda, 2009)
e.g. Contract over a construction of a bridge
Art. 416. The following things are deemed
to be personal property:
(1) Those movables susceptible of
appropriation which are not included in
the preceding article;
(2) Real property which by any special
provision of law is considered as
personality;
(3) Forces of nature which are bought
under control by science; and
(4) In general, all things which can be
transported from place to place without
impairment of the real property to which
they are fixed.
Art. 417 The following are also considered
as personal property:
(1) Obligations and actions which have
for their object movables or demandable
sums; and
(2) Shares of stock of agricultural,
commercial and industrial entities,
although they may have real estate
PERSONAL OR MOVABLE PROPERTY
(1995 BAR)
Movable properties (SOFTSS)
1. Movables Susceptible of appropriation
176
 Property
which are not included in Art. 415;
2. Real property which by any Special
provision of law considers as personality;
e.g. Growing crops under the Chattel
Mortgage Law
3. Forces of nature which are brought under
the control of science;
e.g. Electricity generated by electric
powers, solar light for batteries power.
4. In general, all things which can be
Transported from place to place without
impairment of the real property to which
they are fixed (NCC, Art. 416);
5. Obligations and actions which have for their
object movables or demandable sums; and
6. Shares of stock of agricultural, commercial
and industrial entities, although they have
real estate. (NCC, Art. 417)
Special Kind of Personal Property
The author, composer, painter, sculptor,
inventor have rights over their works. These
rights are personal property. (Pineda, 2009)
Interest in business is a personal property
With regard to the nature of the property
mortgaged which is one-half interest in the
business, such interest is a personal property
capable of appropriation and not included in the
enumeration of real properties in articles 335 of
the Civil Code, and may be the subject of
mortgage. (Strochecker v. Ramirez, G.R. No.
18700, September 26, 1922)
The business of providing
telecommunication is a personal property
The business of providing telecommunication or
telephone service is likewise personal property
which can be the object of theft under Art. 308 of
the RPC.
Indeed, while it may be conceded that
international long-distance calls, the matter
alleged to be stolen in the instant case, take the
form of electrical energy, it cannot be said that
such international long-distance calls were
personal properties belonging to PLDT since the
latter could not have acquired ownership over
such calls. PLDT merely encodes, augments,
177
enhances, decodes and transmits said calls using
its complex communications infrastructure and
facilities. (Laurel v. Abrogar, G.R. No. G.R. No.
155076, January 13, 2009)
Tests to determine whether a property is a
movable property (MES)
1. Test of Exclusion Everything not included
in Art. 415 of NCC; e.g. ships or vessels or
interest in a business
2. By reason of a Special law Immovable by
nature but movable for the purpose of the
special law; e.g. Growing crops for purposes
of the Chattel Mortgage Law
3. Test of Mobility If the property is capable of
being carried from place to place without
injuring the real property to which it may in
the meantime be attached.
Art. 418. Movable property is either
consumable or non-consumable. To the first
class belong those movables which cannot
be used in a manner appropriate to their
nature without their being consumed; to the
second class belong all others.
CLASSIFICATION OF PROPERTY BY NATURE
Properties classified according to
consumability
1. Consumable property That which cannot be
used according to its nature without being
consumed or being eaten or used up;
e.g. cigarette, glass of wine
2. Non-consumable property That which can
be used according to its nature without
being consumed or being eaten or used up.
e.g. eyeglasses, book
Properties classified according to
susceptibility to substitution
1. Fungible property That property which
belongs to a common genus permitting its
substitution; and
2. Non- fungible property That property
which is specified and not subject to
substitution.
NOTE: As to whether a property is fungible or
non-fungible is determined by the agreement of
Civil Law
the parties and not on the consumability of the
thing.
Art. 419. Property is either of public
dominion or of private ownership
CLASSIFICATION OF PROPERTY
BY OWNERSHIP
1. In relation to the State
a. Public Dominion; and
b. Patrimonial.
2. In relation to political subdivisions/local
government unit
a. Public use; and
b. Patrimonial.
3. In relation to private persons
a. Owned individually; and
b. Owned collectively.
NOTE: Sacred and religious objects are
considered outside the commerce of man. They
are neither public nor private party. (Barlin v.
Ramirez, G.R. No. L-2832, November 24, 1906)
PUBLIC DOMINION
It means ownership by the public in general, in
that not even the State or subdivisions thereof
may make them the object of commerce as long
as they remain properties for public use. (Paras,
2008)
Properties classified as public dominion cannot
be alienated but are not totally outside the
commerce of man as the Constitution allows the
State to enter into co-production, joint ventures
or production-sharing agreements with private
individuals or corporations for their exploration,
development and utilization.
NOTE: In order to be classified as property of
public dominion, an intention to devote it to
public use or to public service is sufficient and it
is not necessary that it must actually be used as
such.
Art. 420. The following things are property
of public dominion:
(1) Those intended for public use, such
as roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks,
shores, roadsteads, and others of similar
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
character;
(2) Those which belong to the State,
without being for public use, and are
intended for some public service or for the
development of the national wealth.
Kinds of property of public dominion (USD)
1. For public Use may be used by anybody;
2. Intended for public Service and not for
public use may be used only by duly
authorized persons; and
3. For the Development of the national wealth
like our natural resources. (NCC, Art. 420)
Characteristics of properties of public
dominion (ULEP-ROB)
1. In general, they can be Used by everybody;
2. Cannot be Levied upon by execution or
attachment;
3. May Either be real or personal property;
4. Cannot be acquired by Prescription;
5. Cannot be Registered under Land
Registration Law and be the subject of
Torrens Title;
6. Outside the commerce of man cannot be
alienated or leased or be subject of any
contract;
7. Cannot be Burdened by voluntary
easement.
Art. 421. All other property of the State,
which is not of the character stated in the
preceding article, is a patrimonial property.
Patrimonial Property
This is a property pertaining to the State which
is not intended for public use, public service, or
for the development of the national wealth. It is
intended rather for the attainment of the
economic ends of the State, that is, for its
subsistence.
NOTE: The patrimonial property of the State or
any of its subdivisions may be acquired by
private individuals or juridical persons through
prescription. It can be the object of an ordinary
contract. (Cebu Oxygen & Acetylene Co., Inc. v.
Bercilles, 66 SCRA 481 [1975])
Art. 422. Property of public dominion, when
no longer intended for public use or for
public service, shall form part of the
178
 Property
patrimonial property of the State.
Conversion From Property of Public
Dominion To Patrimonial Property, How
Effected.
When no longer intended or operated for public
use or public service, a property of public
patrimonial property as of the date the
Government, through the Executive or
Legislative Departments, has formally declared
that it is no longer needed for said purposes.
(Ignacio vs. Director of Land [S.C], 58 Off. Gaz.
2403 [1960]; Cebu Oxygen Acetylynne Co. vs.
Bercilles, 66 SCRA 481)
Art. 423. The property of provinces, cities,
and municipalities is divided into property
for public use and patrimonial property.
Art. 424. Property for public use, in the
provinces, cities, and municipalities, consist
of the provincial roads, city streets,
municipal streets, the squares, fountains,
public waters, promenades, and public
works for public service paid by said
provinces, cities, or municipalities
All other property possessed by any of them
is patrimonial and shall be governed by this
Code, without prejudice to the provisions of
special laws.
Properties for public service and properties
for the development of national wealth
1. Public service It depends on who pays for
the service. If paid for by the political
subdivision, public; if for profit, patrimonial;
and
2. National wealth It is still property for
public use under the regalian doctrine.
Property of municipal corporations
1. Provincial roads;
2. City streets;
3. Municipal streets;
4. Squares;
5. Fountains;
6. Public waters;
7. Promenades; and
8. Public works for public service paid for by
said provinces, cities, or municipalities.
(NCC, Art. 424)
NOTE: All other property possessed by any of
179
them are patrimonial.
Charging of fees does not remove property as
public dominion
The charging of fees to the public does not
determine the character of the property whether
it is of public dominion or not. The airport lands
and buildings are devoted to public use because
they are used by the public for international and
domestic travel and transportation. The
terminal fees MIAA charges to passengers, as
well as the landing fees MIAA charges to airlines,
constitute the bulk of the income that maintains
the operations of MIAA. (Manila International
Airport Authority v. CA, G.R. No. 155650, July 20,
2006)
PRIVATE OWNERSHIP
Art. 425. Property of private ownership,
besides the patrimonial property of the
State, provinces, cities, and municipalities,
consists of all property belonging to private
persons, either individually or collectively.
Properties in private ownership of private
persons or entities
All properties not belonging to the State or its
political subdivision are properties of private
ownership pertaining to private persons, either
individually or collectively.
Patrimonial property of the State
It is the property intended for the attainment of
the economic ends of the State, that is, for
subsistence. It is owned by the State in its private
or proprietary capacity. It is the property not
devoted to public use, public service, or the
development of the national wealth.
An executive or legislative act is necessary to
reclassify property into patrimonial. The
conversion cannot be inferred from non-use.
NOTE: It may be disposed of by the State in the
same manner that private individuals dispose of
their own property subject, however, to
administrative laws and regulations.
The fact that the Roppongi site has not been
used for a long time for actual Embassy service
does not automatically convert it to patrimonial
property. An abandonment of the intention to
use the Roppongi property for public service and
Civil Law
to make it patrimonial property must be definite.
Abandonment cannot be inferred from the non-
use alone. (Laurel vs Garcia, G.R. No. 92013, July
25, 1990)
Any such conversion happens only if the
property is withdrawn from public use.
Accordingly, the withdrawal of the property in
question from public use by the City of Cebu and
its subsequent sale to the petitioner is valid.
(Cebu Oxygen and Acetylene Co. v. Bercilles, 66
SCRA 481, August 29, 1975)
Sewage system of a city is a patrimonial
property
It is property of the city, purchased with private
funds and not devoted to public use (it is for
profit). It is therefore patrimonial under the Civil
Code.
such classification is qualified by ejusdem
generis; it must be of the same character as the
preceding items. (City of Cebu v. NAWASA, G.R.
No. 12892, April 20, 1960)
Q: The Delfin Spouses claimed that they were
the owners of a 28,800 square meter parcel
of land in Iligan City. They had been
declaring the Iligan Property in their names
for tax purposes since 1952, and had been
planting it with mangoes, coconuts, corn,
seasonal crops, and vegetables. They alleged
that NHA took possession of a 10,798 square
meter portion of the property. Despite their
repeated demands for compensation, the
National Housing Authority failed to pay the
value of the property.
The NHA alleged that the Delfin Spouses'
property was part of a military reservation
area. It reserved the area in which property
is situated for Iligan City's slum improvement
and resettlement program as cited in
Proclamation No. 2143, and the relocation of
families who were dislocated by the National
Steel Corporation's five-year expansion
program. Does the Spouses have the right to
claim the just compensation?
A: YES. Section 48 of Commonwealth Act
141(Public Land Act) enabled the confirmation
of claims and issuance of titles in favor of
citizens occupying or claiming to own lands of
the public domain or an interest therein. Section
48 (b) specifically pertained to those who "have
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
been in open, continuous, exclusive, and
notorious possession and, occupation of
agricultural lands of the public domain, under a
bona fide claim of acquisition or ownership,
Section 48(b) of the Public Land Act therefore
requires that two (2) requisites be satisfied
before claims of title to public domain lands may
be confirmed: first, that the land subject of the
claim is agricultural land; and second, open,
continuous, notorious, and exclusive possession
of the land since June 12, 1945. That the Iligan
property was alienable and disposable,
agricultural land, has been admitted. What is
claimed instead is that petitioners' possession is
debunked by how the Iligan Property was
supposedly part of a military reservation area57
which was subsequently reserved for Iligan
City's slum improvement and resettlement
program, and the relocation of families who
were dislocated by the National Steel
Corporation's five-year expansion program.
(Heirs Of Leopoldo Delfin And Soledad Delfin,
Namely Emelita D. Fabrigar And Leonilo C. Delfin
v. National Housing Authority, G.R. No. 193618,
November 28, 2016, as penned by J. Leonen)
Private ownership of land prohibited to
Aliens (KRIVENKO DOCTRINE)
GR: Aliens have no right to acquire any public or
private agricultural, commercial or residential
lands in the Philippines.
The same rule is applicable to a foreign
corporation even if it is a religious and non-stock
corporation. A foreign-owned corporation
cannot be the transferee of a land in the
Philippines even temporarily. (Pineda, 2009)
XPN: Aliens may only acquire such lands by
hereditary succession. (Krivenko v. Registry of
deeds, G.R. No. L-630, November 15, 1947)
Effect of a subsequent sale by the disqualified
alien vendee to a qualified Filipino citizen
If land is invalidly transferred to an alien who
subsequently becomes a citizen or transfers it to
a citizen, the flaw in the original transaction is
considered cured and the title of the transferee
is rendered valid.
Thus, the subsequent transfer of the property to
qualified Filipinos may no longer be impugned
180
 Property
on the basis of invalidity of the initial transfer.
The objective of the constitutional provision to
keep our lands in Filipino hands has been
achieved. (Lee v. Republic of the Philippines, G.R.
No. 12819, October 3, 2001)
NOTE: The constitutional proscription on alien
ownership of lands of the public or private
domain was intended to protect lands from
falling in the hands of non-Filipinos. (Lee v.
Republic of the Philippines, G.R. No. 12819,
October 3, 2001)
Regalian Doctrine: All lands not otherwise
appearing to be clearly within private ownership
are presumed to be owned by the state. (Pineda,
2009)
Reversion - An action where the ultimate relief
sought is to revert the land back to the
government under the Regalian Doctrine.
(Pineda, 2009)
Art. 426. Whenever by provision of the law,
or an individual declacration, the
shall be deemed to include, respectively, the
things enumerated in Chapter 1 and in
Chapter 2.
deemed to include money, credits,
commercial securities, stocks and bonds,
jewelry, scientific or artistic collection,
books medals, arms, clothing, horses or
carriages and their accessories, grains,
liquids and merchandise, or other things
which do not have as their principal object
the furnishing or ornamenting of a building
except where from the context of the law, or
the individual declaration, the contrary
clearly appears.
Effects.
If used alone in a contract or agreement, it will
not include things found therein like money,
jewelry, collections, books, medals, arms,
clothing, etc., which do not have as their
principal purpose the furnishing or the
ornamenting of the building where the
181
XPN: When the law or the individual declaration
clearly provides that the aforesaid things are
included.
OWNERSHIP
Art. 427. Ownership may be exercised over
things or rights.
Ownership is the juridical relation of a person
over a thing by virtue of which said person has
the exclusive power or authority to receive all
the benefits and advantages arising from said
thing, save those restricted by law or the
recognized rights of others.
Kinds of ownership
1. Full ownership Includes all the rights of an
owner;
NOTE: Naked ownership + Usufruct
2. Naked ownership Ownership where the
rights to the use and to the fruits have been
denied;
NOTE: Full ownership Usufruct
3. Sole ownership Ownership is vested in only
one person; and
4. Co-ownership Ownership is vested in two
or more persons. There is Unity of the
property, and plurality of the subjects.
Q: Respondents inherited the subject
property from Emiliana Bacalso, by virtue of
Decree No. 98992. Sometime later, they
found the heirs of Alejandra Delfin to be
occupying the said property, to which they
even constructed houses there. The heirs
argued they have better right for it was
inherited to them after it was bought by the
predecessor from Emiliana Bacalso; also,
they are the ones paying the subject
have the better right to the ownership and
possession of the subject property?
A: YES, respondents have the better right to the
ownership and possession of the subject
property. The basis is the LRA certification,
daybook entry, and Decree No. 98992 that was
issued to Emiliana Bacalso. The Decree bars all
claims and rights which arose as may have
Civil Law
existed prior to the decree of registration. (Heirs
of Delfin v. Rabadon, G.R. No. 165014, July 31,
2013)
Art. 428. The owner has the right to enjoy
and dispose of a thing, without other
limitations than those established by law.
The owner has also a right of action against
the holder and possessor of the thing in
order to recover it.
Art. 429. The owner or lawful possessor of a
thing has the right to exclude any person
from the enjoyment and disposal thereof.
For this purpose, he may use such force as
may be reasonably necessary to repel or
prevent an actual or threatened unlawful
physical invasion or usurpation of his
property
JUS UTENDI, FRUENDI, ABUTENDI,
VINDICANDI, DISPODENDI, POSSIDENDI,
ACCESIONES
Attributes of ownership
1. Right to enjoy (jus utendi) (NCC, Art. 428);
2. Right to the fruits (jus fruendi);
3. Right to abuse (jus abutendi);
4. Right to dispose (jus dispodendi) (NCC Art.
428);
5. Right to recover (jus vindicandi) (NCC. Art.
428);
6. Right to accessories (jus accessiones);
7. Right to possess (jus possidendi).;
8. Right to exclude (NCC, Art. 429); and
9. Right to enclose (NCC, Art. 430).
Lease merely follows the property as a lien
or encumbrance
Q: On April 15, 1991, Nicolasa authorized her
daughter, Carmelita, Artemio's sister, to
mortgage the subject property to Jose, the
predecessor-in-interest of Jose, Jose Jr. and
Virginia in order to secure a loan in the
amount of P112,000.00. As Nicolasa failed to
settle her loan obligation when it fell due,
Jose, led an application for extra-judicial
foreclosure of mortgage before the Regional
Trial Court of Olongapo City, Branch 72
(RTC), docketed as Case No. 07-0-91. After
the requirements of posting, notices, and
publication were complied with, the subject
property was sold at a public auction, where
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Jose emerged as the highest bidder. A
Certificate of Sale was thus issued in his
favor. The period of redemption expired
without the subject property being
redeemed; hence, a Final Bill of Sale was
issued and registered in Jose's name.
Thereafter, the latter executed an Affidavit of
Consolidation of Ownership. This
notwithstanding, Nicolasa persisted in her
occupancy of the subject property and
refused to deliver possession to Jose. Is the
Writ of Possession and Notice to Vacate
issued by the RTC is valid?
A: YES. "It is well-settled that the purchaser in
an extrajudicial foreclosure of real property
becomes the absolute owner of the property if
no redemption is made within one 1 year from
the registration of the certificate of sale by those
entitled to redeem. As absolute owner, he is
entitled to all the rights of ownership over a
property recognized in Article 428 of the New
Civil Code, not least of which is possession, or jus
possidendi."
It should be clarified that the purpose of a
petition for the issuance of a writ of possession
under Act No. 3135, as amended by Act No.
4118, is to expeditiously accord the mortgagee
who has already shown a prima facie right of
ownership over the subject property (based on
his consolidated title over the same) his
incidental right to possess the foreclosed
property. To reiterate, "possession being an
essential right of the owner with which he is able
to exercise the other attendant rights of
ownership, after consolidation of title, the
purchaser in a foreclosure sale may demand
possession as a matter of right."
Thus, it is only upon a credible showing by a
third- party claimant of his independent right
over the foreclosed property that the law's
prima facie deference to the mortgagee's
consolidated title should not prevail. Verily, a
mere claim of ownership would not suffice.
As jurisprudence prescribes, the demonstration
by the third party- claimant should be made
within the context of an adversarial hearing,
where the basic principles of Evidence and Civil
Procedure ought to be followed, such as: (1) it is
the claimant who has the burden of proving his
claim; (2) the claim must be established through
a preponderance of evidence; and (3) evidence
not presented or formally offered cannot be
182
 Property
admitted against the opposing party. In this case,
none of these principles were followed for the CA
considered evidence that were not only
submitted in a totally different case against an
entirely different party, but are also innately
inadequate to at least prima facie show the
source of the third party claimant's independent
title, all to the detriment of the mortgagee who
had already consolidated his title to the
contested property. (Heirs of Peñaflor v. Dela
Cruz, G.R. No. 197797, August 8, 2017)
REMEDIES TO RECOVER POSSESSION
Legal remedies to recover possession of
property
1. Personal property Replevin
2. Real property
a. Accion Interdictal;
i. Forcible entry; or
ii. Unlawful detainer.
b. Accion Publiciana; or
c. Accion Reinvindicatoria.
3. Ancillary remedies common to both
a. Writ of preliminary mandatory
injunction; or
b. Writ of possession.
Q: Spouses Gregorio and Rosario Centeno
previously owned the subject lots, which they
mortgaged in favor of Rural Bank of Sta.
Barbara, Inc. as security for a P1,753.65 loan.
Sps. Centeno, however, defaulted on the loan,
prompting the bank to cause the
extrajudicial foreclosure of the mortgage.
Consequently, the subject lots were sold to
the bank, being the highest bidder at the
auction sale. Sps. Centeno failed to redeem
the subject lots within the one- year
redemption period pursuant to Section 6 of
Act No. 3135. Yet, they still continued with
the possession and cultivation of the
aforesaid properties.
Gerry Centeno, son of Sps. Centeno, later on
purchased the said lots from his parents.
Accordingly, Rosario paid the capital gains
taxes on the sale transaction and tax
declarations were eventually issued in the
name of Gerry.
On March 19, 1998, Rural Bank of Sta.
Barbara, Inc. filed a petition for the issuance
183
of a writ of possession before the trial court,
claiming entitlement to the said writ by
virtue of the Final Deed of Sale covering the
subject lots. Gerry opposed the petition,
arguing that he purchased and has, in fact,
been in actual, open and exclusive possession
of the same properties for at least 15 years.
Is the Rural Bank of Sta. Barbara, Inc. is
entitled to a writ of possession over the
subject lots?
A: YES. It is well-established that after
failure of the mortgagor to redeem the property,
the purchasers right to possession ripens into
the absolute right of a confirmed owner. At that
point, the issuance of a writ of possession, upon
proper application and proof of title, to a
purchaser in an extrajudicial foreclosure sale
becomes merely a ministerial function, unless it
appears that the property is in possession of a
third party claiming a right adverse to that of the
mortgagor.
Gerry Centeno acquired the subject lots from his
parents, Sps. Centeno, on March 14, 1988 after
they were purchased by Rural Bank of Sta.
Barbara, Inc. and its Certificate of Sale at Public
Auction was registered with the Register of
Deeds of Iloilo City in 1971. It cannot therefore
be disputed that Gerry is a mere successor-in-
interest of Sps. Centeno. Consequently, he cannot
be deemed as a third party who is actually
holding the property adversely to the judgment
obligor under legal contemplation. (Rural Bank
of Sta. Barbara, Inc. v. Gerry Centeno, G.R. 200667,
March 11, 2013)
Q: On June 26, 2003, petitioner Teodorico A.
Zaragoza (petitioner) bought a 3,058-square
meter (sq. m.) parcel of land. His father leased
a 1,000-sq. m. portion of Lot 937-A (subject
land) to respondent Iloilo Santos Truckers,
Inc. (respondent). This notwithstanding,
petitioner allowed the lease to subsist and
respondent had been diligent in paying its
monthly rent amounting to P10,000.00 per
month. Petitioner claimed that when his
father died, respondent stopped paying rent.
On the other hand, respondent maintained
that it was willing to pay rent, but was
uncertain as to whom payment should be
made. Respondent made a consignation on
the RTC br. 24 for the amount of P521,396.89
equivalent for the rent of February 2007 to
Civil Law
March 2011.
Petitioner averred that the amount was
insufficient to cover the unpaid rentals plus
interests from February 2007 to May 2011.
Petitioner clarified that his earlier demand to
pay was for the period of February 2007 to
May 2011. Thus, petitioner posited that
respondent had continuously failed and
refused to comply with the terms and
conditions of the lease contract concerning
the payment of monthly rental. May
petitioner eject respondent from the subject
land?
A: YES. For an unlawful detainer suit to prosper,
the plaintiff-lessor must show that: first,
initially, the defendant-lessee legally possessed
the leased premises by virtue of a subsisting
lease contract; second, such possession
eventually became illegal, either due to the
latter's violation of the provisions of the said
lease contract or the termination thereof; third,
the defendant-lessee remained in possession of
the leased premises, thus, effectively depriving
the plaintiff-lessor enjoyment thereof; and
fourth, there must be a demand both to pay or
to comply and vacate and that the suit is brought
within one (1) year from the last demand.
In this case, all requisites have been indubitably
complied with, considering that at the time the
suit was instituted on June 21, 2011: (a) there
was a subsisting lease contract between
petitioner and respondent; (b) , respondent was
not updated in its monthly rental payments, as
there is no evidence of such payment for the
months of April, May, and even June 2011-- said
omission constitutes a violation of the lease
contract on the part of respondent; (c)
respondent was still in possession of the subject
land; and (d) the case was filed within one (1)
year from petitioner's letter dated May 24, 2011
demanding that respondent pay monthly rentals
and at the same time, vacate the subject land.
(Teodorico Zaragoza v. Iloilo Santos Truckers,
Inc., G.R. No. 224022, June 28, 2017)
RECOVERY OF POSSESSION OF
MOVABLE PROPERTY
Replevin
It is the remedy when the complaint prays for
the recovery of the possession of personal
property.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
NOTE: A property validly deposited in custodia
legis cannot be subject of a replevin suit. (Calub
v. CA, G.R. No. 115634, April 27, 2000)
RECOVERY OF POSSESSION
OF IMMOVABLE PROPERTY
Accion interdictal
It is a summary action to recover physical or
material possession only and it must be brought
within one year from the time the cause of
action arises. It may be:
1. Forcible Entry; or
2. Unlawful detainer.
Accion publiciana
It refers to an ejectment suit filed within 10
years after the expiration of one year from
accrual of cause of action or from the unlawful
witholding of possession of the realty. (Gabriel Jr.
v. Crisologo, G.R. No. 204626, June 9, 2014)
It is an ordinary civil proceeding to recover the
better right of possession, except in cases of
forcible entry and unlawful detainer. What is
involved here is not possession de facto but
possession de jure.
Accion reinvindicatoria
It is an action to recover real property based on
ownership. Here, the object is the recovery of
the dominion over the property as owner.
NOTE: Where the facts averred in the complaint
reveals that the action is neither one of forcible
entry nor unlawful detainer but essentially
involves a boundary dispute, the same must be
resolved in an accion reinvindicatoria.
(Sarmiento v. CA, G.R. No. 116192, November 16,
1995)
Requisites of accion reivindicatoria
1. Identity of property; and
2. property.
Q: A contract of lease executed by Alava
(lessor) and Anita Lao (lessee) was not
registered with the Register of Deeds. Aside
from Anita, Rudy Lao also leased a portion of
the same property where he put up his
business. At that time, Rudy knew that Anita
184
 Property Civil Law
and her husband were the owners of the said liability until they vacate the premises. around it. No previous demand Demand is
building. He also knew that she had leased Whether or Not they can suspend their Was the act of Francisco and his men lawful? for the defendant to jurisdictional if the
that portion of the property, and that Jaime payment? Why? (2014 BAR) vacate is necessary. ground is non-
Lao, their son, managed and maintained the payment of rentals
building, as well as the business thereon. A: NO. In this case, the disconnection of A: NO or failure to comply
Rudy eventually purchased the entire electrical service over the leased premises on right to occupy the premises has expired, the with the lease
property from Alava. Rudy then filed a May 14, 2004 was not just an act of physical lessor cannot physically oust the lessee from the contract.
complaint for unlawful detainer against disturbance but one that is meant to remove leased premises if the latter refuses to vacate. As to necessity of proof of prior physical
Jaime alleging that the latter had occupied a respondents from the leased premises and The lessor must go through the proper channels possession
portion of his property without any lease disturb their legal possession as lessees. by filing an appropriate case for unlawful Plaintiff must prove Plaintiff need not
agreement and without paying any rentals, Ordinarily, this would have entitled respondents detainer or recovery of possession. Every that he was in prior have been in prior
and prayed that an order be rendered to invoke the right accorded by Article 1658 of possessor has a right to be respected in his physical possession physical possession.
directing Jaime to vacate the premises. the Civil Code. However, this rule will not apply possession (NCC, Art. 539) and in no case can of the premises until NOTE: The fact that
Should the complaint be dismissed? in the present case because the lease had already possession be acquired through force or he was deprived petitioners are in
expired when petitioner requested for the intimidation as long as there is a possessor who thereof by the possession of the lot
A: YES. The records in this case show that the temporary disconnection of electrical service. objects thereto (NCC, Art. 536). The act of defendant. does not
respondent has been in possession of the Petitioner demanded respondents to vacate the Francisco is an abuse of rights because even if he automatically
property in question, not by mere tolerance or premises by May 30, 2004. Instead of has the right to recover possession of his entitle them to
generosity of Rudy, but as the manager of his surrendering the premises to petitioner, property, he must act with justice and give the remain in
mother, who conducted her business in the respondents unlawfully withheld possession of lessees their day in court and observe honesty possession. (Ganilla
building which stood on a portion of the the property. Respondents continued to stay in and good faith. v. CA, G.R. No.
possession the premises until they moved to their new 150755, June 28,
was in behalf of his mother, and not in his own residence on September 26, 2004. At that point, DISTINCTION BETWEEN FORCIBLE ENTRY 2005)
right. (Lao v. Lao, G.R. No. 149599, May 16, 2005) petitioner was no longer obligated to maintain AND UNLAWFUL DETAINER As to when one-year period is counted from
respondents in the "peaceful and adequate
One-year period is One-year period is
Q: In August 2001, the Spouses Javier offered enjoyment of the lease for the entire duration of Forcible Entry Unlawful Detainer generally counted counted from the
to purchase the Marikina property. However, the contract." (Victoria Racelis v. Sps. Javier, G.R.
from the date of date of last demand
they could not afford to pay the price of No. 189609, January 29, 2018, as penned by J. As to when possession became unlawful actual entry of the or last letter of
They offered instead to lease Leonen)
Possession of the Possession is land. demand.
the property while they raise enough money.
defendant is unlawful inceptively lawful
Racelis hesitated at first but she eventually Effect of non-registration of the contract of
from the beginning as but becomes illegal REQUISITES FOR RECOVERY OF PROPERTY
agreed. The parties agreed on a month-to- lease
he acquired from the time
possession by defendant 1. Clearly identify the land he is claiming in
month. This was later increased to Although the lease contract was not filed with
(FISTS) unlawfully accordance with the title/s on which he
the Register of Deeds, nevertheless, the buyer of
1. Force; withholds bases his right of ownership; and
property as their residence and as the site of the property was bound by the terms and
2. Intimidation; possessions after
their tutorial school. conditions of said contract. The lease, in effect
3. Strategy; the expiration or NOTE: Burden of proof lies on the party
became a part of the contract of sale. He had no
4. Threat; or termination of his who asserts the affirmative of an issue. The
Sometime in 2002, Racelis inquired whether cause of action for unlawful detainer against the
5. Stealth. right thereto. description should be so definite that an
they are still interested to purchase the lessee because of the subsisting contract of lease;
property then Sps. Javier agreed and even hence, he could not file the complaint against officer of the court might go to the locality
NOTE: The question where the land is situated and definitely
said that they would pay Php 100,000.00 to her. (Lao v. Lao, G.R. No. 149599, May 16, 2005)
of possession is locate it.
buy them more time within which to pay the
primordial, while
purchase price. But they only delivered Php Q: Spouses Magtanggol managed and
the issue of 2. Prove that he has a better title than the
78,000.00 but they consistently paid rent operated a gasoline station on a 1,000 sq.m.
ownership is defendant.
until February 2004. Then Racelis wrote to lot which they leased from Francisco Bigla-
generally a. Best proof is a Torrens certificate; and
inform them that her family had decided to awa. The contract was for a period of three
unessential in b. Tax receipts, tax declarations are only
terminate the lease agreement and to offer years. When the contract expired, Francisco
unlawful detainer. prima facie evidence of ownership; it is
the property to other interested buyers. In asked the spouses to peacefully vacate the
(Rosa Rica Sales rebuttable.
the same letter, Racelis demanded that they premises. The spouses ignored the demand
Center v. Sps. Ong,
vacate the property by May 30, 2004. The and continued with the operation of the
G.R. 132197, August NOTE:
Spouses Javier refused to vacate due to the gasoline station.
16, 2005) positive right or title and not merely on the lack
ongoing operation of their tutorial business.
As to necessity of demand
One month after, Francisco, with the aid of a
advanced rent and proposed that this group of armed men, caused the closure of words, he shall not be permitted to rely upon the
amount be applied to their outstanding the gasoline station by constructing fences (NCC, Art. 434)

185 UNIVERSITY OF SANTO TOMAS 186

2021 GOLDEN NOTES
 Property Civil Law
deforciant illegally occupying the land or Subjects d. Lease;
Q: In 1998, Intramuros leased certain real property the moment he is required to a. One definite a. An active 4. Grantor of the property on the grantee, either
properties of the national government which leave. More than once has this Court adjudged active subject subject (creditor); by:
it administered to Offshore Construction. that a person who occupies the land of another (e.g. owner) and a. Contract
Three properties were subjects of the at the latter's tolerance or permission without b. One indefinite b. A definite b. Donation or
Contracts of Lease: Baluarte De San Andres, any contract between them is necessarily bound passive subject passive subject c. Will;
Baluarte De San Francisco De Dilao and by an implied promise that he will vacate upon which is the (debtor).
Revellin De Recoletos. All three properties demand, failing which a summary action for whole world 5. Those arising from Conflicts of private rights -
were leased for five years from September ejectment is the proper remedy against him. Right of pursuit is Those which take place in accession
1,1998 to August 31,2003. (Intramuros Administration v. Offshore therefore available. continua;
Construction Development Company, G.R. No. Real right follows
Offshore Construction occupied and 196795, March 7, 2018, as penned by J. Leonen) its object in the 6. Constitution - On the prohibition against the
introduced improvements in the leased hands of any acquisition of private lands by aliens;
premises. However, Intramuros and the DOT Reasons why the plaintiff is NOT allowed to possessor.
halted the projects due to Offshore Enforceability 7. Acts in state of necessity The law permits
-conformity with PD 1616, Enforceable against Enforceable only injury or destruction of things owned by
which required 16th to 19th centuries 1. Possibility that neither the plaintiff nor the the whole world. against the original another provided this is necessary to avert a
Philippine-Spanish Architecture in the area. defendant is the true owner of the property. debtor or his greater danger (with right to indemnity v.
During the lease period, Offshore In which case, the defendant who is in transferee charged principle of unjust enrichment); and
Construction failed to pay its utility bills and possession will be preferred; with notice of the
rental fees, despite several demand letters. 2. One in possession is presumed to be the personal rights 8. True owner must resort to judicial process
Intramuros tolerated the continuing owner and he cannot be obliged to show or Limit When thing is in possession of another; law
occupation, hoping that Offshore prove a better title; Limited by No such limitation. creates a disputable presumption of
Construction would pay its arrears. To settle 3. Possessor in the concept of an owner is usefulness, value or ownership to those in actual possession.
its arrears, Offshore Construction proposed presumed to be in good faith and he cannot productivity of the (2008 BAR)
be expected to be carrying every now and thing.
expenses and the parties executed a then his proofs of ownership over the Extinguishment Art. 429. The owner of lawful possessor of a
Memorandum of Agreement covering the property; and thing has the right to exclude any person
period of August 15,2004 to August 25,2005. 4. He who relies on the existence of a fact, Extinguished by Not so
from the enjoyment and disposal thereof.
But Offshore Construction failed to pay its should prove that fact. If he cannot prove, loss or destruction extinguished.
For this purpose, he may use such force as
arrears amounting to Php 13,448,867.45. Is the defendant does not have to prove. of the thing Claim for damages
may be reasonably necessary to repel or
Intramuros entitled to possession to the said may still be
prevent an actual or threatened unlawful
leased properties to Offshore Construction? pursued-in case of
REAL v. PERSONAL RIGHTS physical invasion of usurpation of his
loss or destruction
of the thing. property
A: YES, Intramuros tolerance of respondent's Real Right Personal Right
occupation and use of the leased premises after (Right of (Right to possess;
LIMITATIONS ON THE RIGHT OF OWNERSHIP PRINCIPLE OF SELF-HELP
the end of the lease contracts does not give the possession; possidendi)
latter a permanent and indefeasible right of possessionis) This principle authorizes an owner or lawful
possession in its favor. When a demand to vacate Creation Those imposed by the: (SLOG-C2-SO) possessor of a property to use reasonable force
has been made, as what petitioner had done,
Created by both Created by title to prevent or repel an actual or threatened
title and mode alone. 1. State in the exercise of: unlawful physical invasion or usurpation of
should have left the leased premises. More than a. Power of taxation;
directly over a It is not directly property. (NCC, Art. 429) There must be no delay
once has this Court adjudged that a person who b. Police power; and
thing. created over a in the pursuit, otherwise, his recourse will be to
occupies the land of another at the latter's c. Power of eminent domain
thing but is go to the court for the recovery of property.
tolerance or permission without any contract
exercised through
between them is necessarily bound by an 2. Law;
another against Requisites of the Principle of Self-Help
implied promise that he will vacate upon a. Legal easements (i.e.,
whom the action is (RODA)
demand, failing which a summary action for easements of waters and of
to be brought.
ejectment is the proper remedy against him. The right of way) and
Object 1. Reasonable force used
situation is not much different from that of a b. The requirement of legitime in
Generally corporeal Incorporeal or 2. Such force is used by the owner or lawful
tenant whose lease expires but who continues in succession;
or tangible. intangible. possessor
occupancy by tolerance of the owner, in which
Object is specific Object covers all 3. There is no delay
case there is deemed to be an unlawful 3. Owner himself;
property or thing. the present and 4. Actual or threatened physical invasion or
deprivation or withholding of possession as of a. Voluntary easement
future property of usurpation of the property.
the date of the demand to vacate. In other words, b. Mortgage
one whose stay is merely tolerated becomes a the debtor. (NCC,
c. Pledge Counterpart of Self-Help in Criminal Law
Art. 2236).

187 UNIVERSITY OF SANTO TOMAS 188

2021 GOLDEN NOTES
 Property
The loose counterpart of the principle of self-
help under the criminal law is self-defense
provided for in Article 11, par. 1 of the Revised
Penal Code Art. 11.
Justifying circumstances. The following do not
incur any criminal liability:
1. Anyone who acts in defense of his person or
rights, provided that the following
circumstances concur:
First. Unlawful aggression.
Second. Reasonable necessity of the
means employed to prevent or repel it.
Third. Lack of sufficient provocation on
the part of the person defending
himself.
Right of self-help exercised by third person
A third person who is not a possessor may repel
unlawful possession on the property owned by
another. In such an event, he is acting as a
negotorium gestor. The owner must indemnify
him for injuries sustained. (Pineda, 2009)
Test of reasonableness
The reasonableness of the defensive acts
resorted to by a possessor is determined not by
what he imagined to exist but by the objective
situation. (Pineda, 2009) He will be liable for
damages, if he uses force more than what is
necessary in repelling the aggression.
German Management's drastic action of
bulldozing and destroying the crops of private
respondents on the basis of the doctrine of self-
help was unavailing because the doctrine of self-
help can only be exercised at the time of actual
or threatened dispossession which is absent in
the case at bar. (German Mgmt. Services Inc. v. CA,
G.R. No. 76216, September 14, 1989)
NOTE: The intruder must not have succeeded in
its entry, for otherwise, he must resort to court
action; self-help cannot apply. One cannot put
the law into his own hands. Art. 429 must be
read in relation to Art. 536.
The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third
person. (NCC, Art. 431)
189
Property owner can use his property in any
manner he desires provided he does not injure
the rights of others (sic utere tuo ut alienum non
laedas). (Pineda, 2009)
Art. 430. Every owner may enclose or fence
his land or tenements by means of walls,
ditches, live or dead hedges, or by any other
means without detriment to servitudes
constituted thereon.
Limitation on the right of the owner to
Every owner may enclose or fence his land or
tenement by means of walls, ditches, live or dead
hedges or by any other means provided that in
so fencing the property, no servitude or
easement constituted thereon should be
impaired. (Pineda, 2009)
DOCTRINE OF STATE OF NECESSITY
The owner of a thing has no right to prohibit the
interference of another with the same, if the
interference is necessary to avert an imminent
danger and the threatened damage, compared to
the damage arising to the owner from the
interference, is much greater. The owner may
demand from the person benefited indemnity
for the damage to him. (NCC, Art. 432)
This principle authorized the destruction of
property which is lesser in value to avert the
danger poised to another property of greater
value.
Requisites of Doctrine of State of Necessity
1. Interference necessary to avert an imminent
danger and the threatened damage to the
actor or a third person;
2. Damage to another is much greater than the
damage to the property.
Art. 433. Actual possession under claim of
ownership raises a disputable presumption
of ownership. The true owner must resort to
judicial process for the recovery of the
property.
Disputable presumption of ownership
There is disputable presumption of ownership
when a person is in actual possession of the
property under the claim of ownership. (Pineda,
Civil Law
2009)
Resort of the owner rebutting the
presumption
Under Art. 433 the remedy is judicial process to
recover the property of the person.
Requisites to prove claim of ownership
1. Proper identification of the property; and
2. Title must be clear, strong and credible.
(Pineda, 2009)
Art. 434. In an action to recover, the
property must be identified, and the
plaintiff must rely on the strength of his title
claim.
Requisites For Action To Recover Property
1. To clearly identify the land he is claiming in
accordance with the title or titles on which
he bases his right of ownership; and,
2. To prove that he has a better title than the
defendant. (Pineda, 2009)
Art. 435. No person shall be deprived of his
property except by competent authority
and for public use and always upon payment
of just compensation
Should this requirement be not first
complied with, the courts shall protect and,
in a proper case, restore the owner in his
possession.
Eminent Domain
This is the superior right of the State to acquire
private property whether registered or not for
public use upon payment of just compensation.
It is one of the limitations on the right of
ownership in the pursuit of public interest.
(Pineda, 2009)
Purposes of Eminent Domain
1. The expropriator must enter a private
property;
2. The entrance into private property must be
for more than a momentary period;
3. The entry into the property should be under
warrant or color of legal authority
4. The property must be devoted to a public use
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
or otherwise informally appropriated or
injuriously affected; and
5. The utilization of the property for public use
must be in such a way as to oust the owner
and deprive him of all beneficial enjoyment
of the property. (National Power Corporation
vs. Court of Appeals, 254 SCRA 577)
Q: Alfredo Hababag, Sr. (Alfredo) was the
owner of several parcels of agricultural land
situated in the Municipality of Gubat,
Sorsogon. The aforesaid landholdings were
voluntarily offered for sale (VOS) to the
government under Republic Act No. (RA)
6657, otherwise known as the
"Comprehensive Agrarian Reform Law of
1988,". The Land Bank of the Philippines
(LBP) initially valued the subject lands at
P1,237,850.00, but Alfredo rejected the
valuation. After summary administrative
proceedings for the determination of the
amount of just compensation, the Office of
the Provincial Agrarian Reform Adjudicator
(PARAD) of the Department of Agrarian
Reform (DAR) Adjudication Board (DARAB)
fixed the value of the subject lands at
P1,292,553.20.
Dissatisfied, Alfredo filed a Complaint for the
determination of the amount of just
compensation before the RTC. RTC rendered
a Decision fixing the amount of just
compensation of the subject lands at
P5,653,940.00. The RTC applied the Income
Productivity Approach. CA set aside the RTC's
valuation for failure to give due
consideration to the factors enumerated in
Section 17 of RA 6657 and the formula under
DAR AO 6-92, as amended by DAR AO 11-94.
Moreover, contrary to the limitation imposed
by DAR AO 6-92 - i.e., that the computed
value using the applicable formula shall not
exceed the landowner's offer to sell - the CA
found that the amount as recomputed by the
RTC was way beyond the landowner's offer of
P1,750,000.00 as stated in the Claims
Valuation and Processing Form. Is the CA
correct in setting aside the computation of
RTC?
A: YES. Just compensation is defined as the full
and fair equivalent of the property taken from
its owner by the expropriator. It has been
repeatedly-stressed by this Court that the
measure is not the taker's gain but the owner's
loss. The word "just" is used to intensify the
190
 Property
meaning of the word "compensation" to convey
the idea that the equivalent to be rendered for
the property to be taken shall be real,
substantial, full [and] ample.
In this relation, the RTC, sitting as a Special
Agrarian Court, has been conferred with the
original and exclusive power to determine just
compensation for parcels of land acquired by the
State pursuant to the agrarian reform program.
To guide the RTC in this function, Section 17 of
RA 6657 enumerates the factors which must be
taken into consideration to accurately determine
the amount of just compensation to be awarded
in a particular case. They are: (a) the acquisition
cost of the land; (b) the current value of like
properties; (c) the nature and actual use of the
property, and the income therefrom; (d) the
owner's sworn valuation; (e) the tax
declarations; (f) the assessment made by
government assessors; (g) the social and
economic benefits contributed by the farmers
and the farmworkers, and by the government to
the property; and (h) the nonpayment of taxes
or loans secured from any government financing
institution on the said land, if any. Corollarily,
pursuant to its rule-making power under Section
49 of the same law, the DAR translated these
factors into a basic formula, which courts have
often referred to and applied, as the CA did in
this case. It, however, bears stressing that courts
are not constrained to adopt the said formula in
every case since the determination of the
amount of just compensation essentially
partakes the nature of a judicial function. In this
accord, courts may either adopt the DAR formula
or proceed with its own application for as long
as the factors listed in Section 17 of RA 6657
have been duly considered.
In keeping with these considerations, the Court
finds the CA's valuation - which made use of the
DAR formula - as reflective of the factors set
forth in Section 17 of RA 6657. Records disclose
that the CA's computation, as adopted from the
LBP's own computation, is based on: (a) actual
production data; (b) the appropriate industry
selling prices of the products from the Philippine
Coconut Authority and the Bureau of
Agricultural Statistics of Sorsogon; and (c) the
actual uses of the property. Likewise, the (a)
income from the coconut fruit- bearing trees, as
well as the unirrigated riceland, (b) cumulative
cost of the non-fruit-bearing trees; and (c)
market value of the cogonal land have been duly
considered. The Court observes that the holistic
191
data gathered therefrom adequately consider
the factors set forth in Section 17 of RA 6657, as
well as the DAR formula. As such, the CA's
computation, which was derived from the same,
must be sustained. Lest it be misunderstood, the
ascertainment of just compensation on the basis
of the landholdings' nature, location, and market
value, as well as the volume and value of the
produce is valid and accords with Section 17 of
RA 6657 and the DAR formula, as in this case
On the contrary, the Court finds the RTC's
valuation to be improper, as it contradicts the
definition of "market value" as crafted by
established jurisprudence on expropriation.
(Land Bank of the Philippines v. Alfredo Hababag,
Sr., Substituted by his wife, Consolacion, and
children, namely: Manuel, Salvador, Wilson,
Jimmy, Alfredo, Jr., and Judith, all surnamed
Hababag, G.R. No. 171352, September 16, 2015)
Q: The Republic of the Philippines filed
before the RTC a complaint against an
unknown owner for the expropriation of a lot
located in Barangay Ugong, Valenzuela City
for the construction of the C-5 Northern Link
Road Project, otherwise known as North
Luzon Expressway (NLEX) Segment 8.1,
traversing from Mindanao Avenue in Quezon
City to the NLEX in Valenzuela City. Petitioner
applied for a writ of possession over the
subject lot on May 5, 2008, which was
granted, and was required to deposit with
the court the amount of P550,000.00 (i.e., at
P2,750.00/sq. m.) as provisional deposit.
However, respondent Macabagdal was
substituted as party- defendant upon
sufficient showing that the subject lot is
registered in her name under the Transfer
Certificate Title of the lot. Respondent did not
oppose the expropriation, and received the
provisional deposit.
The RTC appointed a board of commissioners
to determine the just compensation for the
subject lot, which thereafter submitted
report dated May 23, 2014, recommending a
fair market value of P9,000.00/sq. m. as the
just compensation for the subject lot, taking
into consideration its location, neighborhood
and land classification, utilities, amenities,
physical characteristics, occupancy and
usage, highest and best usage, current
market value offerings, as well as previously
decided expropriation cases of the same RTC
involving properties similarly situated in the
Civil Law
same barangay. The Court of Appeals
affirmed this decision and imposed interest
the rate of 12% per annum from the time of
the filing of the complaint until June 30,
2013, and thereafter, at 6% per annum until
full payment. Is the 12% per annum interest
on the unpaid balance be computed from the
time of the taking of the subject until full
payment valid?
A: NO. The value of the landholdings should be
equivalent to the principal sum of the just
compensation due, and interest is due and
should be paid to compensate for the unpaid
balance of this principal sum after taking has
been completed. From the date of the taking of
the subject lot on May 5, 2008 when the RTC
issued a writ of possession in favor of petitioner,
until the just compensation therefor was finally
fixed at P9,000.00/sq. m., petitioner had only
paid a provisional deposit in the amount of
P550,000.00 (i.e., at P2,750.00/sq. m.). Thus, this
left an unpaid balance of the "principal sum of
the just compensation," warranting the
imposition of interest. It is settled that the delay
in the payment of just compensation amounts to
an effective forbearance of money, entitling the
landowner to interest on the difference in the
amount between the final amount as adjudged
by the court and the initial payment made by the
government. It bears to clarify that legal interest
shall run not from the date of the filing of the
complaint but from the date of the issuance of
the Writ of Possession on May 5, 2008, since it is
from this date that the fact of the deprivation of
property can be established. As such, it is only
proper that accrual of legal interest should begin
from this date. (Republic v. Leonor Macabagdal,
G.R. No. 227215, January 10, 2018)
Q: National Power Corporation instituted
expropriation proceedings for the
acquisition of a right-of-way easement and
for the construction of the Substation Island
Grid Project over the parcels of land owned
by respondents. During the pendency of the
proceedings, NPC filed a motion to
discontinue the proceedings since the delay
in the possession of the properties would
adversely affect the project. NPC also claims
that the properties were no longer needed as
it was set to acquire an alternative site.
May NPC be allowed to discontinue the
expropriation proceedings?
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
A: YES. No expropriation proceeding can
continue if the property to be expropriated will
not be for public use. In Metropolitan Water
District v. De Los Angeles, the Court held that the
fundamental basis then of all actions brought for
the expropriation of lands, under the power of
eminent domain, is public use. That being true,
the very moment that it appears at any stage of
the proceedings that the expropriation is not for
a public use, the action must necessarily fail and
should be dismissed, for the reason that the
action cannot be maintained at all except when
the expropriation is for some public use.
Considering that the National Power
Corporation is no longer using respondents'
properties for the purpose of building the
Substation Project, it may be allowed to
discontinue with the expropriation proceedings,
subject to the approval of the court. (National
Power Corporation v. Socorro T. Posada, Renato
Bueno, Alice Balin, Adrian Tablizo, Teofilo
Tablizo, and Lydia T. Olivo, Substituted By Her
Heirs, Alfredo M. Olivo, Alicia O. Salazar, Anita O.
Ordono, Angelita O. Lim, And Adelfa O. Espinas,
G.R. No. 191945, March 11, 2015, as penned by J.
Leonen)
Art. 436. When any property is condemned
or seized by competent authority in the
interest of health, safety or security, the
owner thereof shall not be entitled to
compensation, unless he can show that such
condemnation or seizure is unjustified.
Extent of ownership of parcel of land
The owner of a parcel of land is the owner of its
surface and of everything under it, and he can
construct thereon any works or make any
plantations and excavations which he may deem
proper, without detriment to servitudes and
subject to special laws and ordinances. He
cannot complain of the reasonable requirements
of aerial navigation. (NCC, Art. 437)
AD COLEUM
The owner of a land has rights not only to its
surface but also to everything underneath and
the airspace above it up to a reasonable height.
such height or depth where it is possible for
them to obtain some benefit or enjoyment, and it
is extinguished beyond such limit as there would
be no more interest protected by law. (Napocor
v. Ibrahim, G.R. No. 168732, June 29, 2007)
192
 Property
Art. 438. Hidden treasure belongs to the
owner of the land, building, or other
property on which it is found.
Nevertheless, when the discovery is made
on the property of another, or of the State or
any of its subdivisions, and by chance, one-
half thereof shall be allowed to the finder. If
the finder is a trespasser, he shall not be
entitled to any share of the treasure.
If the things found be of interest to science
or the arts, the State may acquire them at
their just price, which shall be divided in
conformity with the rule stated.
Art. 439. By treasure is understood, for legal
purposes, any hidden and unknown deposit
of money, jewelry or other precious objects,
the lawful ownership of which does not
appear.
HIDDEN TREASURE
Treasure is understood, for legal purposes, as
any hidden and unknown deposit of money,
jewelry, or other precious objects, the lawful
ownership of which does not appear. (NCC, Art.
439) (1997, 2008, 2014 BAR)
Under the ejusdem generis rule, the phrase
should be understood as being similar to money
or jewelry.
Oil or gold NOT considered as hidden
treasure
These are natural resources. The Regalian
Doctrine applies and not the provisions on
hidden treasure.
Rule regarding discovery of hidden treasure
(NCC, Art. 438 in relation to Art. 718)
GR: If the finder is the owner of the land,
building, or other property where it is found, the
entire hidden treasure belongs to him.
XPN: If the finder is not the owner or is a
stranger (includes the lessee or usufructuary), he
is entitled to ½ thereof. (NCC, Art. 566)
193
If the finder is married
If the finder is married, he or she gets one half of
the treasure or its value. His or her spouse is
entitled to share one-half of that share, it being a
conjugal property. (NCC, Art. 117, par. 4, FC)
Requisites in order that the finder be entitled
to any share in the hidden treasure (ACTA)
1. Discovery was made on the property of
Another, or of the State or any of its political
subdivisions;
2. Made by Chance; and
3. He is not a Trespasser or Agent of the
landowner. (NCC, Art. 438, par. 2)
NOTE: If the things found be of interest to
science or the arts, the State may acquire them
at their just price, which shall be divided in
conformity with the rule stated. (NCC, Art. 438)
The finder had no intention to search for the
treasure. There is no agreement between the
owner of the property and the finder for the
search of the treasure.
Yamashita treasure
The State is entitled to 75% share and the finder
to 25%. (PD 7056-A)
The finder is not entitled to the hidden
treasure if it was deliberately searched.
(1976 BAR)
It was not found by chance (NCC, Art. 438).
Moreover, treasure is defined as hidden and
unknown deposit of precious objects, the lawful
ownership of which does not appear. There
being a tip, the deposit is known. (NCC, Art. 439)
Nature and ownership of the old notes and
coins
The ownership of the vault, together with the
notes and coins can now legally be considered as
hidden treasure because its ownership is no
longer apparent. The contractor is not a
trespasser and therefore entitled to one-half of
the hidden treasure and the owner of the
property is entitled the other half. (NCC, Art.
438) Since the notes and coins have historical
value, the government may acquire them at their
just price which in turn will be divided equally
Civil Law
between them. (NCC, Art. 438, par. 3) The vault
has been buried for about a century and the
successor of the bank which previously owned it
cannot succeed by inheritance to the property.
(2008 BAR)
NOTE: Bills and notes found are not hidden
treasures. The owner can be traced through the
serial numbers.
Q: O, owner of Lot A, learning that Japanese
soldiers may have buried gold and other
treasures at the adjoining vacant Lot B,
belonging to Spouses X and Y, excavated in
Lot B where she succeeded in unearthing
gold and precious stones. How will the
treasures found by O to be divided (1)
100% to O as finder, (2) 50% to O and 50%
to X and Y, (3) 50% to O and 50% to the State
(4) none of the above? (2010 BAR)
A: NONE OF THE ABOVE. The finding of the
treasure was not by chance because O knew that
the treasure was in Lot B. While a trespasser is
also not entitled to any share and there is no
indication in the problem whether or not O was
a trespasser, O is not entitled to share because
the finding was not by chance.
ACCESSION
The right pertaining to the owner of a thing over
everything which is produced thereby, or which
is incorporated or attached thereto, either
naturally or artificially. (NCC, Art. 440)
Right of accession
It is that right of ownership of which an owner of
a thing has over the products of said thing
(accession discreta), as well as to all things
inseparably attached or incorporated thereto
whether naturally or artificially (accession
continua). (Pineda, 2009)
Accession is NOT a mode of acquiring
ownership
It is not one of the modes enumerated under Art.
712 (different modes of acquiring ownership). It
is, therefore, safe to conclude that accession is
not a mode of acquiring ownership.
Reason: Accession presupposes a previously
existing ownership by the owner over the
principal. Fundamentally, accession is a right
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
implicitly included in ownership, without which
it will have no basis or existence. (Paras, 2008)
NOTE: In general, the right to accession is
automatic (ipso jure), requiring no prior act on
the part of the owner or principal.
Q: Filipinas Palm Oil Plantation Inc. is a
private organization engaged in palm oil
plantation with a total land area of more than
7,000 hectares of National Development
Company (NDC) lands in Agusan del Sur.
Harvested fruits from oil palm trees are
converted into oil through Filipinas' milling
plant in the middle of the plantation area.
Within the plantation, there are also three
(3) plantation roads and a number of
residential homes constructed by Filipinas
for its employees.
The LBAA found that the P207.00 market
value declared in the assessment by the
Provincial Assessor was unreasonable. It
found that the market value should not have
been more than P85.00 per oil palm tree. The
sudden increase of realty tax assessment
level from P42.00 for each oil palm tree in
1993 to P207.00 was confiscatory. The LBAA
adopted Filipinas' claim that the basis for
assessment should only be 98 trees. Although
one (1) hectare of land can accommodate
124 oil palm trees, the mountainous terrain
of the plantation should be considered.
Because of the terrain, not every meter of
land can be fully planted with trees. The
LBAA found that roads of any kind, as well as
all their improvements, should not be taxed
since these roads were intermittently used
by the public.
Should the roads the respondent constructed
within the leased area be assessed with real
property taxes?
A: NO, the roads that respondent constructed
within the leased area should not be assessed
with real property taxes.
The roads that respondent constructed became
permanent improvements on the land owned by
the NGPI-NGEI by right of accession under the
Civil Code, thus:
Article 440. The ownership of property gives the
right by accession to everything which is
produced thereby, or which is incorporated or
194
 Property
attached thereto, either naturally or artificially.
Article 445. Whatever is built, planted or sown on
the land of another and the improvements or
repairs made thereon, belong to the owner of the
land[.]
Despite the land being leased by respondent
when the roads were constructed, the
ownership of the improvement still belongs to
NGPI-NGEI. As provided under Article 440 and
445 of the Civil Code, the land is owned by the
cooperatives at the time respondent built the
roads. Hence, whatever is incorporated in the
land, either naturally or artificially, belongs to
the NGPI-NGEI as the landowner. (Provincial
Assessor Of Agusan Del Sur v. Filipinas Palm Oil
Plantation, Inc., G.R. No.183416, October 5, 2016,
as penned by J. Leonen)
Art. 441. To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits.
ACCESSION DISCRETA
The right of accession with respect to what is
produced by the property.
To the owner belongs the:
1. Natural fruits - The spontaneous products of
the soil, and the young and other products of
animals;
2. Industrial fruits - Are those produced by
lands of any kind through cultivation or
labor;
3. Civil fruits - The rents of buildings, the price
of leases of lands and other property and the
amount of perpetual or life annuities or
other similar income. (NCC, Art. 441-442)
Obligation of the owner who receives the
fruit from a third person
He who receives the fruits has the obligation to
pay the expenses made by a third person in their
production, gathering and preservation. (NCC,
Art. 443) (2009 BAR)
Meaning of third person
One who is NOT the owner, builder, planter or
sower.
Art. 444. Only such as are manifest or born
195
Civil Law
are considered as natural or industrial
fruits. Art. 446. All works, sowing, and planting are 1. He who is in Bad faith is liable for damages.
presumed made by the owner and at his 2. Accessory follows the principal;
Which respect to animals, it is sufficient that expense, unless the contrary is proved. 3. Union or incorporation must generally be
they are in the womb of the mother, effected in such a manner that to separate
although unborn. Ownership of fruits the principal from the accessory would
result in substantial Damage to either or
Existence of the fruit GR: Fruits belong to the owner. (NCC, Art. 441) diminish its value;
4. To the Owner of the thing belongs the
It depends on the type of fruit: XPNS: If the thing is: (PULPA) extension or increases to such thing;
1. Annual (must be planted every year/must 1. In possession of a Possessor in good faith 5. Bad faith of one party Neutralizes the bad
re-plant after harvest; rice, wheat, corn) (NCC, Art 546) (1992, 1996, 2000 BAR); faith of the other so that they shall be
deemed manifest the moment their before the possession is legally interrupted; considered in good faith;
seedlings appear; and 2. Subject to a Usufruct (NCC, Art. 566); 6. He who is in Good faith may be held
2. Perennial (only planted once and bear fruit 3. Lease of rural land; responsible but not penalized; and
for several seasons; mango and coconut 4. Pledged [NCC, Art. 1680 and Art. 2102(7)]; 7. No one shall unjustly Enrich himself at the
trees) deemed to exist only when they pledge is entitled to the fruits but has the expense of another.
actually appear. obligation to compensate or set-off what he
receives with those which are owing to him; FOR IMMOVABLES
Animal young or
5. In possession of an Antichretic creditor. ACCESSION INDUSTRIAL
They are considered existing even if still in the (NCC, Art. 2132)
maternal womb. They should be considered
Three kinds of industrial endeavors (BPS)
existing only at the commencement of the GENERAL RULLES OF ACCESSION
maximum ordinary period for gestation.
1. Building Erecting a structure or
Accession exists only if separation is not feasible. construction of any kind, with roof for
Pratus sequitor ventrem offspring follows Otherwise, separation may be demanded. residential, office, social, commercial or
the mother
other purposes;
ACCESSION CONTINUA 2. Planting Setting into the soil or land seeds
This legal maxim means that the offspring
or seedlings of trees such as mangoes,
follows the dam (mother). The legal
It is the right pertaining to the owner of a thing coconuts, etc;
presumption, in the absence of proof to the
over everything incorporated or attached 3. Sowing The act of scattering or spreading of
contrary, is that the calf, as well as its mother
thereto either naturally or artificially; by germinated seeds indiscriminately or evenly
belongs to the owner of the latter, by the right of
external forces. through hand or mechanical device.
accretion. (US v. Caballero, G.R. No. 8608,
September 26, 1913) Thus, when the ownership
1. Immovable Property Maxims in connection with accession
over the offspring of the animal when the male
a. Accession industrial (Art. 445-455) industria
and female belongs to different owners, the
owner of the female was considered also the i. Building;
ii. Planting; and 1. The accessory follows the principal;
owner of the young, unless there is a contrary
iii. Sowing. 2. The accessory follows the nature of that to
custom or speculation.
which it relates; and
b. Accession natural 3. What is built upon the land goes with it; or
Art. 445. Whatever is built, planted or sown the land is the principal, and whatever is
i. Alluvium (Art. 457);
on the land of another and the built on it becomes the accessory.
ii. Avulsion (Art. 459);
improvements or repairs made thereon,
iii. Change of course of rivers (Art. 461-
belong to the owner of the land, subject to Rule on ownership regarding accession
462); and
the provisions of the following articles. industrial
iv. Formation of islands. (Art. 464- 465)
When fruits are deemed to exist 2. Movable property GR: The owner of the land is the owner of
a. Adjunction or Conjunction; whatever is built, planted or sown on that land,
1. Civil fruits accrue daily and are considered b. Mixture; and including the improvements or repairs made
personal property and may be pro-rated; c. Specification. thereon.
and
2. Natural and industrial fruits, while still Basic principles in accession continua XPNs:
growing, are considered as real property; (BADONG-E) 1. When the doer is in good faith the rule is
ordinarily, they cannot be pro-rated. modified; or
UNIVERSITY OF SANTO TOMAS 196
2021 GOLDEN NOTES
 Property Property
2. Improvements on the land of one of the
spouses at the expense of the conjugal RULE IF THE PLANTER AND OWNER OF THE LAND ARE DIFFERENT
partnership will belong to the partnership or
to the spouse who owns the land depending Gathered Fruits
on which of the two properties has a higher
Planter in GF Planter in BF
value. (FC, Art. 120)
Keeps fruits before possession is Reimbursed for expenses for
NOTE: If the doer is in bad faith, he is entitled Planter legally interrupted. (NCC, Art. 544, production, gathering and
only to necessary expenses for the preservation par. 1) (2008 Bar) preservation. (NCC, Art. 443)
of the land. No necessity to reimburse the Owns fruits provided he pays
planter of expenses since the planter expenses for production,
Art. 447. The owner of the land who makes Landowner
planter retains the fruits. (NCC, gathering and preservation.
thereon, personally or through another, Art. 544, par. 1) (NCC, Art. 443)
plantings, constructions or works with the Standing Crops
materials of another, shall pay their value; Planter in GF Planter in BF
and, if he acted in bad faith, he shall also be
obliged to the reparation of damages. The Loses what is built, planted or
owner of the materials shall have the right sown without right to
to remove them only in case he can do so Reimbursed for expenses, for indemnity. (NCC, Art 449)
without injury to the work constructed, or Planter production, gathering and Entitled to reimbursement for
without the plantings, constructions or preservation. (NCC, Art.443) the necessary expenses of
works being destroyed. However, if the preservation of the land. (NCC,
landowner acted in bad faith, the owner of Art. 452)
the materials may remove them in any event,
with a right to be indemnified for damages. Owns fruits provided he pays
planter expenses for production,
Good faith and bad faith distinguished. Landowner Owns fruits. (NCC, Art. 449)
gathering and preservation. (NCC,
Art. 443)
Good Faith - A person who is not aware that
there exists in his title or mode of acquisition
any flaw which invalidates it. RULE WHEN THE LAND OWNER IS THE BUILDER, PLANTER OR SOWER (1999 BAR)
Bad Faith - A person who is aware that there
Land Owner and Builder, Planter or Sower Owner of Materials
exists in his title or mode of acquisition any flaw
Good faith Good faith
which invalidates it.
1. Receive indemnity for value of materials; or
Acquire building etc. after paying indemnity for
When Both Parties Are in Bad Faith
value of materials. (NCC, Art. 447) (1999 Bar) 2. Remove materials if without injury to works,
If both parties are in bad faith, the bad faith of
plantings or constructions. (NCC, Art. 447)
one cancels the bad faith of the other. Hence,
both are considered in good faith. Bad faith Good faith
1. Acquire building etc. after paying value of
1. Be indemnified for value of materials and
NOTE: Good faith is always presumed; and upon materials; and
damages; or
him who alleges bad faith on the part of the 2. indemnity for damages, subject to the right of
2. Remove materials, with or without injury and
possessor rests the burden of proof. the owner of materials to remove. (NCC, Art.
be indemnified for damages. (NCC, Art. 447)
447)
Good faith Bad faith
1. Lose materials w/o being indemnified and
1. Acquire w/o paying indemnity and right to pay damages (NCC, Articles 445 and 449, by
damages (NCC, Art 445 and 449, by analogy); analogy); and
and
2. Recover necessary expenses for preservation
2. Pay necessary expenses for preservation. of land without the right to retain the thing
(NCC, Articles 452 and 546) until the indemnity is paid. (NCC, Articles 452
and 546)
Bad faith Bad faith
As though both acted in good faith (in pari delicto). ( NCC, Art. 453) (1999 BAR)

197 UNIVERSITY OF SANTO TOMAS 198

2021 GOLDEN NOTES
 Civil Law Property
may be explained as follows:
RULE WHEN THE LAND OWNER IS NOT THE BUILDER, PLANTER OR SOWER
That if the land owner knew that something was
Land Owner Builder, Planter, Sower and Owner of Materials being built, planted or sown on his land by another
Good faith Good faith and he did not interpose any objection thereto, it is
He can either: (NCC, Art. 448) (1992, 1996, 2000 If the Land Owner: as if he was the one building, planting or sowing in
Bar) 1. Acquires the improvements after paying bad faith on his own land with materials belonging
1. Acquire improvements after paying indemnity indemnity, Builder, Planter, or Sower has the to another, using the owner of the materials as his
for: right to retain the thing (and cannot be worker. (Rabuya, 2008)
a. Necessary expenses; and required to pay rent) until indemnity is paid. Bad Faith Bad Faith
b. Useful expenses which could either be: (NCC, Art. 546) As though both acted in good faith (in pari delicto). (Art. 453)
1. Original costs of improvements; or
2. Increase in the value of the whole. 2. If the useful improvements can be removed
(NCC, Articles 443 and 546) without damage to the principal thing, the RULE WHEN THE LAND OWNER, BUILDER, PLANTER,
Builder, Planter or Sower may remove them, SOWER AND OWNER OF MATERIALS ARE DIFFERENT PERSONS
2. Sell the land to builder or planter or collect unless the person who recovers the
rent from sower unless the value of the land is possession exercises the other. (NCC, Articles Land-Owner Builder, Planter, Sower Owner of Materials
considerably greater than the building etc., in 547 and 447) Good faith Good faith Good faith
which case, the builder and planter shall pay
rent. 3. Sells the land, Builder or Planter cannot be He shall answer subsidiarily for Pay value of materials to its
obliged to buy the land if its value is their value and only in the owner without paying damages
The parties shall agree upon the terms of the lease considerably more than that of the building or event that the one who made (NCC, Art. 455) and if the Land
and in case of disagreement, the court shall fix the trees. use of them has no property Owner:
terms thereof. with which to pay. (NCC, Art.
In such case, he shall pay reasonable rent. 455) 1. Acquires the improvement,
Builder, Planter, or Sower
The parties shall agree upon the terms of the lease He can either (NCC, Art. 448): may demand from the
and in case of disagreement, the court shall fix the 1. Acquire improvements landowner the value of the
terms thereof. (NCC, Art. 448) (1992, 1996, 1999, after paying indemnity materials and labor. (NCC,
2000, 2001 BAR) 1. Collect value of materials
for: Art 455)
Good faith Bad faith primarily from builder,
a. Necessary expenses;
planter, sower, subsidiarily
1. The land owner can either: 1. Lose improvements without right to be and And he has the right to
indemnified unless the latter sells the land. from land owner (NCC, Art.
b. Useful expenses retain the thing (and cannot
a. Acquire improvements without paying (NCC, Art. 449) (1996, 2000 BAR) 455); or
which could either be required to pay rent)
indemnity and collect damages. (NCC, be: until indemnity is paid.
Articles 445, 449 and 451) 2. Recover necessary expenses for 2. Remove the materials only if
c. Original costs of (NCC, Art. 546)
without injury to the work
preservation of land without the right to improvements; or
b. Order the demolition of work or retain the thing until the indemnity is paid. constructed, or without the
d. Increase in the value If the useful improvements
restoration to former condition and collect (NCC, Articles 452 and 546) plantings, constructions or
of the whole. (NCC, can be removed without
damages in both cases (NCC, Art. 450); or works being destroyed. (NCC,
Art. 546 & 443) damage to the principal
3. Pay damages to land owner. (NCC, Art. 451) Art. 447)
thing, the possessor in good
c. Sell the land to builder and planter or rent 2. Sell the land to builder faith may remove them,
it to the sower, and collect damages in both NOTE: Landowner is subsidiarily
and planter or collect rent unless the person who
cases. (NCC, Art. 450) (2008 Bar) liable only if he
from sower unless the recovers the possession
appropriates/acquires the
value of the land is exercises the other (NCC,
2.Pay necessary expenses for preservation. improvements.
considerably greater than Articles 547 and 447); or
(NCC, Articles 452 and 546) the building etc., in which
Bad Faith Good Faith case, the builder and 2. Sells the land or rents it,
Acquires improvements after paying indemnity and planter shall pay rent. Builder or Planter cannot
damages to builder, planter, sower, unless the latter be obliged to buy the land if
1. Receive indemnity for improvements and
decides to remove. (NCC, Articles 454 and 447) The parties shall agree its value is considerably
receive damages; or
upon the terms of the more than that of the
He cannot compel the builder planter or sower to lease and in case of building or trees.
2. Remove them in any event and receive
buy the land. disagreement, the court
damages. (NCC, Articles 454 and 447)
shall fix the terms thereof. In such case, he shall pay
The reason why said article (NCC, Art. 447) applies reasonable rent.

199 UNIVERSITY OF SANTO TOMAS 200

2021 GOLDEN NOTES
 Civil Law Property
4. Sell the land to builder and 2. Sells or rents it, Builder or
The parties shall agree upon the planter or collect rent from Planter cannot be obliged
terms of the lease and in case of sower unless the value of to buy the land if its value
disagreement, the court shall fix the land is considerably is considerably more than
the terms thereof. (NCC, Art. 448) greater than the building that of the building or
Land-Owner Builder, Planter, Sower Owner of Materials etc., in which case, the trees.
Good faith Bad faith Good faith builder and planter shall In such case, he shall pay
Option to: pay rent. reasonable rent.

1. Acquire improvements The parties shall agree The parties shall agree
without paying indemnity upon the terms of the lease upon the terms of the lease
and collect damages (NCC, and in case of and in case of
Art. 445 & 449); 1. Lose improvements without disagreement, the court disagreement, the court
right to be indemnified shall fix the terms thereof. shall fix the terms thereof.
2. Order the demolition of unless the landowner sells (NCC, Art. 448)
work or restoration to the land (NCC, Art. 449); Without subsidiary liability for
former condition and cost of materials. Without indemnity to owner of
1. Collect value of materials materials and collects damages
collect damages in both 2. Recover necessary expenses
primarily from builder, planter, from him.
cases (NCC, Art. 450); or for preservation of land
sower, subsidiarily from land
without the right to retain
owner (NCC, Art. 455); or Land Owner Builder, Planter, Sower Owner of Materials
3. Sell the land to builder the thing until the indemnity
and planter or rent it to is paid (NCC, Art. 452 & 546); Good faith Bad faith Bad faith
2. Remove materials in any event
the sower and collect Option to:
if builder, planter, sower
damages in both cases. 3. Pay value of materials to its
acquired materials.
(NCC, Art. 450) (2008 owner plus damages (NCC, 1. Acquire improvements
BAR) Art. 455); and 1. Lose improvements
without paying indemnity
without right to be
and collect damages (NCC,
4. Pay necessary expenses 4. Pay damages to land owner. indemnified unless the
Articles 445 and 449);
for preservation (NCC, (NCC, Art. 451) landowner sells the land
Articles 452 and 546); and (NCC, Art. 449);
2. Order the demolition of
1. Recover value from Builder,
work or restoration to
5. Subsidiarily liable to 2. Recover necessary Planter, Sower (in pari delicto);
former condition and
owner of materials. expenses for preservation
collect damages in both
of land without the right to 2. If Builder, Planter, Sower
cases (NCC, Art. 450); or
Land-Owner Builder, Planter, Sower Owner of Materials retain the thing until the acquired improvements,
Good faith Good faith Bad faith indemnity is paid (NCC, remove the materials only if
3. Sell the land to builder
Land Owner can either: (NCC, If the Land Owner: Articles 452 and 546); without injury to the work
and planter or rent it to
constructed, or without the
Art. 448) the sower, and collect
1. Acquires the improvement, 3. Pay the value of the plantings, constructions or
damages in both cases
1. Acquire improvements Builder, Planter, or Sower materials to the owner of works being destroyed (NCC,
(NCC, Art. 450);
1. Loses materials without right the materials.; and Art. 447);
after paying indemnity has the right to retain the
to indemnity (NCC, Art. 449);
for: thing (and cannot be 4. Has right to demand
and Since both the owner of the 3. No action against land owner;
a. Necessary expenses; required to pay rent) until damages from both (NCC,
and indemnity is paid. (NCC, materials and the builder, and
Art. 451);
2. Pays damages (NCC, Art. 451) etc. acted in bad faith, as
b. Useful expenses Art. 546)
The builder, planter or sower between them, they are 4. May be liable to the land owner
which could either 5. Pay necessary expenses
would be considered merely an treated as having both for damages. (NCC, Art. 451)
be: If the useful improvements for preservation (NCC, Art.
agent of the owner of materials. acted in good faith. (De
i. Original costs of can be removed without 452 & 546); and
Leon, 2006)
improvements; damage to the principal
Therefore, the provisions of Article
or thing, the possessor in 6. Not subsidiarily liable to
449 of the Civil Code will apply by 4. Pay damages to land
ii. Increase in the good faith may remove the owner of the materials
analogy. He is even liable for owner. (NCC, Art. 451)
value of the them, unless the person because as to him, the two
damages. (Rabuya, 2008)
whole. (NCC, who recovers the acted in bad faith. (De
Articles 546 and possession exercises the Leon, 2006)
443) other (NCC, Art. 547); or Land-Owner Builder, Planter, Sower Owner of Materials

201 UNIVERSITY OF SANTO TOMAS 202

2021 GOLDEN NOTES

Bad faith
1. Acquires improvements
after paying indemnity
and damages, unless the
latter decides to remove
(NCC, Art. 454, 447 & 443);
and
2. Cannot compel builder,
planter and sower to buy
land.
Land Owner
Bad faith
1. Acquires improvements
after paying indemnity
and damages, unless the
builder, planter or sower
decides to remove (NCC,
Art. 454, 447 & 443); and
2. Cannot compel builder,
planter and sower to buy
land.
Land-Owner
Bad faith
The owner of the land shall
answer subsidiarily for their
value and only in the event that
the one who made use of them
has no property with which to
pay (NCC, Art. 455); and
Land Owner can either: (NCC,
Art. 448)
1. Acquire improvements
after paying indemnity
for:
1. Necessary expenses,
and
2. Useful expenses
which could either
be:
Civil Law
Good faith
If he pays the owner of the
materials, plants or seeds:
1. He may demand from the
landowner the value of the
materials and labor (NCC,
Art 455) and shall also be
obliged to the reparation of
damages (NCC, Art. 447); or
2. Remove the materials in
any event, with a right to
be indemnified for
damages. (NCC, Articles 454
and 447)
Builder, Planter, Sower
Good faith
If he pays the owner of the
materials, plants or seeds:
1. He may demand from the
landowner the value of the
materials and labor (NCC,
Art. 455) and shall also be
obliged to the reparation of
damages (NCC, Art. 447); or
2. Remove the materials in
any event, with a right to
be indemnified for
damages. (NCC, Articles 454
and 447)
Builder, Planter, Sower
Bad faith
Pay value of materials to its
owner (NCC, Art. 455) and
If the Land Owner:
1. Acquires the improvement,
Builder, Planter, or Sower
may demand from the
landowner the value of the
materials and labor. (NCC,
Art 455)
And he has the right to
retain the thing (and cannot
be required to pay rent)
until indemnity is paid (Art.
546).
203
Good faith
1. Collect value of materials
primarily from builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
2. Remove the materials in any
event, with a right to be
indemnified for damages.
(NCC, Art. 447)
Owner of Materials
Bad faith
1. Loses materials without right
to indemnity (NCC, Art. 449);
and
2. Pays damages. (NCC, Art. 451)
The builder, planter or sower
would be considered merely an
agent of the owner of materials.
Therefore, the provisions of Article
449 of the Civil Code will apply by
analogy. He is even liable for
damages. (Rabuya, 2008)
Owner of Materials
Good faith
1. Collect value of materials
primarily from builder,
planter, sower, subsidiarily
from land owner (NCC, Art.
455); or
2. Remove the materials in any
event, with a right to be
indemnified for damages.
(NCC, Art. 447)
i. Original costs of
improvements
ii. Increase in the
value of the
whole. (NCC,
Articles 546 and
443)
2. Sells or rents it, Builder or
2. Sell the land to builder and
planter or collect rent from
sower unless the value of
the land is considerably
greater than the building
etc., in which case, the
builder and planter shall
pay rent.
The parties shall agree
upon the terms of the lease
and in case of
disagreement, the court
shall fix the terms thereof.
Land-Owner Builder, Planter, Sower
Bad faith
Same as though both acted in good faith (in pari delicto). (NCC, Art. 453)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Property
If the useful improvements
can be removed without
damage to the principal
thing, the possessor in good
faith may remove them,
unless the person who
recovers the possession
exercises option 2 (NCC,
Articles 547 and 447);
Planter cannot be obliged to
buy the land if its value is
considerably more than that
of the building or trees.
In such case, he shall pay
reasonable rent.
The parties shall agree upon
the terms of the lease and in
case of disagreement, the
court shall fix the terms
thereof. (NCC, Art. 448)
Owner of Materials
Bad faith Bad faith
204
 Civil Law
When there is good faith on the part of both
the owner of the land and the builder,
planter or sower
The owner of the land only has the options of
paying the value of the building or selling the
land.
He cannot refuse either to pay or sell and compel
the owner of the building to remove it from the
land where it is erected. He is entitled to such
removal only when, after having chosen to sell
the land, the other party fails to pay for the
same. (Ignacio v. Hilario, G.R. No. L-175, April 30,
1946; Sps. Espinoza vs. Mayandoc, G.R. No.
211170, July 3, 2017)
The landowner upon demand for payment
CANNOT automatically become the owner of the
improvement for failure of the builder to pay for
the value of the land. There is nothing in Articles
448 and 546 which would justify the conclusion
that upon failure of the builder to pay the value
of the land, when such is demanded by the
landowner, the land owner becomes
automatically the owner of the improvement
under Art. 445.
the improvement, the landowner cannot compel
the builder to buy the land. In such event, a
is created and the court shall fix
the terms thereof in case the parties disagree
thereon. (Depra v. Dumalo, G.R. No. L-57348, May
16, 1985; Communities Cagayan, Inc. v. Sps.
Arsenio, G.R. No. 176791, November 14, 2012)
Rule when landowner sells the land to a third
person who is in bad faith
Builder must go against the third person but if
the latter has paid the land owner, a case against
such land owner may still be filed by the builder
and the third person may file a third-party
complaint against land owner.
Recourse left to the parties where the builder
fails to pay the value of the land
The Civil Code is silent on this point. Guidance
may be had from these decisions:
1. In Miranda v. Fadullon, G.R. No. L-8220,
October 29, 1955, the builder might be made
to pay rental only, leave things as they are,
205
and assume the relation of lessor and lessee;
2. In Ignacio v. Hilario, G.R. L-175, April 30,
1946, Pen Development Corporation v.
Martinez Leyba, Inc., G.R. No. 211845, August
9, 2017 owner of the land may have the
improvement removed; or
3. In Bernardo v. Bataclan, G.R. No. L-44606,
November 28, 1938, the land and the
improvement may be sold in a public
auction, applying the proceeds first to the
payments of the value of the land, and the
excess if any, to be delivered to the owner of
the house in payment thereof.
As to the pending crops planted in good faith,
the landowner has the option of allowing the
planter in good faith to continue the cultivation
and to harvest the crops, or to continue the
cultivation and harvest the crops himself. In the
latter option, however, the landowner shall have
the right to a part of the expenses of cultivation
and to a part of the net harvest, both in
proportion to the time of possession. (NCC, Art.
545)
Q: Believing that a piece of land belonged to
him, A erected thereon a building, using
materials belonging to C. The owner of the
land, B, was aware of the construction being
made by A, but did not do anything to stop it.
What are the rights of A, B, and C, with
respect to the building and as against each
other? (1984 BAR)
A: B, regardless of his good or bad faith, becomes
the owner of the building. (NCC, Arts. 445 and
448) However, A, a builder in good faith will be
entitled to reimbursement of his necessary and
useful expenses, with right to retain the same
until paid. He may also remove the construction,
since B acted in bad faith in not stopping the
construction. (NCC, Arts. 454 and 447) C shall
have the right to reimbursement and may also
remove them but only if he can do so without
injury to the work. (NCC, Art. 447)
Q: Suppose X was in good faith but Y knew
that X was constructing on his (Y's) land but
simply kept quiet about it, thinking perhaps
that he could get X's house later. What are
the respective rights of the parties over X's
house in this case? (1999 BAR)
A: Since the lot owner Y is deemed to be in bad
faith (Art. 453), X as the party in good faith may
(a) remove the house and demand
Property
indemnification for damages suffered by him, or
(b) demand payment of the value of the house
plus reparation for damages (Art. 447, in relation
to Art. 454). Y continues as owner of the lot and
becomes, under the second option, owner of the
house as well, after he pays the sums demanded.
Q: Bartolome constructed a chapel on the
land
were: (1) possessor of the land in good faith,
or (2) in bad faith? (1996 BAR)
A:
(1) A chapel is a useful improvement, Bartolome
may remove the chapel if it can be removed
without damage to the land, unless Eric chooses
to acquire the chapel. In the latter case,
Bartolome has the right of reimbursement of the
value of the chapel with right of retention until
he is reimbursed. (NCC, Arts. 448, 546 & 547)
(2) Bartolome loses whatever he built, without
any right to indemnify. (NCC, Art. 449)
Q: Pecson owned a commercial lot on which
he built a building. For failure to pay realty
taxes, the lot was sold at public auction to
Nepomuceno, who in turn sold it to the
spouses Nuguid. The sale, however, does not
include the building. The spouses
subsequently moved for the delivery of
possession of the said lot and apartment.
Pecson filed a motion to restore possession
pending determination of the value of the
apartment.
May Pecson claim payment of rentals?
A: YES, Pecson is entitled to rentals by virtue of
his right of retention over the apartment. The
construction of the apartment was undertaken
at the time when Pecson was still the owner of
the lot. When the Nuguids became the
uncontested owner of the lot, the apartment was
already in existence and occupied by tenants.
NOTE: Art. 448 does not apply to cases where
the owner of the land is the builder but who
later lost the land; not being applicable, the
indemnity that should be paid to the buyer must
be the fair market value of the building and not
just the cost of construction thereof. To do
otherwise would unjustly enrich the new owner
of the land.
Q: Pending complete reimbursement, may
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
the spouses Nuguid benefit from the
improvement?
A: NO. Since spouses Nuguid opted to
appropriate the improvement for themselves
when they applied for a writ of execution
despite knowledge that the auction sale did not
include the apartment building, they could not
reimbursed the improver in full, based on the
current market value of the property. (Pecson v.
CA, G.R. No. 115814, May 26, 1995)
The builder is entitled to a refund of the
expenses he incurred and not on the market
value of the improvement (2000 BAR)
Under Art. 448 in relation to Art. 546, the
builder in good faith is entitled to a refund of the
necessary and useful expenses incurred by him,
or the increase in value which the land may have
acquired by reason of the improvement, at the
option of the landowner. The builder is entitled
to a refund of the expenses he incurred, and not
to the market value of the improvement.
NOTE: The case of Pecson v. CA, G.R. No. 115814,
May 26, 1995 is not applicable.
The landowner is entitled to the rentals of
the building if he opted to appropriate it,
subject to the right of retention of the builder
in good faith (2000 BAR)
The landowner is entitled to the rentals of the
building. As the owner of the land, he is also the
owner of the building being an accession
thereto. However, the builder in good faith is
entitled to retain the building until indemnity is
paid. Consequently, he is also entitled to retain
the rentals. He, however, shall apply the rentals
to the indemnity payable to him after deducting
reasonable cost of repair and maintenance.
Q: The Church, despite knowledge that its
intended contract of sale with the National
Housing Authority (NHA) had not been
perfected, proceeded to introduce
improvements on the disputed land. On the
other hand, NHA knowingly granted the
Church temporary use of the subject
properties and did not prevent the Church
from making improvements thereon. Did the
Church and NHA act in bad faith?
A: YES. The Church and the NHA, both acted in
206
 Civil Law
bad faith, hence, they shall be treated as if they
were both in good faith. (National Housing
Authority v. Grace Baptist Church, G.R. No.
156437, March 1, 2004)
Q: A squatter, X, is sought to be evicted by the
landowner Y, seeks reimbursement from the
latter for the improvements he made on the
property, while Y demands the value of all
the fruits X gathered from the land during
the occupancy thereof. Is X entitled to the
indemnity he prays for? Is he bound to pay
for the fruits he received? Why? (1983 BAR)
A: As a possessor in bad faith, X may recover
only the necessary expenses he may have
incurred while in possession and
reimbursement for useful improvements
introduced by him if owner Y chooses to retain
them and X must pay Y the value of all the fruits
he received.
Q: Mr. and Mrs. X migrated to the US with all
their children. As they had no intention of
coming back, they offered their house and lot
for sale to their neighbors, Mr. and Mrs. A
(the buyers) who agreed to buy the property
for 128 Million. Because Mr. and Mrs. A
needed to obtain a loan from a bank first, and
since the sellers were in a hurry to migrate,
the latter told the buyers that they could
already occupy the house, renovate it as it
was already in a state of disrepair, and pay
only when their loan is approved and
released. While waiting for the loan
approval, the buyers spent Pl Million in
repairing the house. A month later, a person
carrying an authenticated special power of
attorney from the sellers demanded that the
buyers either immediately pay for the
property in full now or vacate it and pay
damages for having made improvements on
the property without a sale having been
perfected.
What are the buyers' options or legal rights
with respect to the expenses incurred in
improving the property under
circumstances? (2015 BAR)
A: The buyers here may be deemed possessors
or builders in good faith because they were
made to believe that they were allowed to make
repairs or renovation by the sellers themselves.
As builders in good faith, they have the right to
seek reimbursement for the value of the
207
improvements in case the owner decides to
appropriate them. They cannot be asked to
remove the improvements because that is not
one of the options given by law to the landowner
in case the builder is in good faith.
When there is bad faith on the part of both
the owner of the land and the builder,
planter or sower
Q: The Municipality instituted an action for
the recovery of a tract of land in the pueblo of
Oas claiming that it was a part of the public
square. Roa alleged that he was the owner of
the property and admitted in writing that he
knew that the land is owned by the
Municipality and that Castillo, whom he
bought the property from did not own the
land. On the other hand, when Roa
constructed a substantial building on the
property in question the Municipality did not
oppose the construction. Is there bad faith on
both of the parties?
A: YES. Roa was not a purchaser in good faith.
The Municipality, having permitted the erection
by the defendant of a building on the land
without objection, acted in bad faith. The rights
of the parties must, therefore, be determined as
if they both had acted in good faith. When there
has been bad faith, not only on the part of the
person who built, sowed, or planted on
another's land, but also on the part of the owner
of the latter, the rights of both shall be the same
as if they had acted in good faith. Therefore, the
owner of the land on which the building, sowing,
or planting is done in good faith shall have a
right to appropriate as his own the work,
sowing, or planting after the indemnity
mentioned in Articles 453 and 454, or, to oblige
the person who has built or planted, to pay him
the value of the land and to force the person who
sowed to pay the proper rent. (Art. 453)
(Municipality of Oas vs Roa, G.R. No. L-2017,
November 24, 1906)
Good faith can concur with negligence
Art. 456 applies to Arts. 447-455 where good
faith was mentioned.
Good faith does not necessarily preclude
negligence, for, in fact, in negligence there is no
intention to do wrong or cause damage unlike in
bad faith which presupposes such intention. (De
Leon, 2006)
Property
made or artificial accretions to lands that adjoin
Thus, person who is in good faith may be guilty canals or esteros or artificial drainage system.
of negligence for which he may be made liable (Ronquillo v. CA, G.R. No 43346, March 20, 1991)
under Art. 2176 involving quasi-delicts. (Pineda,
2009) NOTE: If the deposits accumulate, not through
the effects of the current of the water, but
ACCESSION NATURAL because of the constructions made by the owner
purely for defensive purposes against the
damaging action of the water, the deposits are
ALLUVION
still deemed to be alluvion and will belong to the
riparian owner.
Alluvium or alluvion (2001, 2003, 2008,
2009 BAR)
If the deposit is brought about by sea water
It is the gradual deposit of sediment by natural
When the sea moves towards the estate and the
action of a current of fresh water (not sea water),
tide invades it, the same becomes a foreshore
the original identity of the deposit being lost.
land which consequently becomes part of the
Where it is by sea water, it belongs to the State.
public domain. Thus, it belongs to the state.
(Government of Philippine Islands v. Cabangis,
G.R. No. L-28379, March 27, 1929)
Registration
NOTE:
Alluvial deposits must be registered. Though,
the lands adjoining the banks of the rivers
automatically it is owned by the riparian owner
belongs the accretion which they gradually
(Heirs of Navarro v. IAC, G.R. No. 68166, February
receive from the effects of the current of the
12, 1997), it is still subject to acquisitive
waters.
prescription which may divest the riparian
owner the ownership over the accretion.
Riparian owner
Failure to register
He is the owner of the land adjoining rivers.
If the riparian owner fails to register the
Accretion v. Alluvium
deposits within the prescriptive period of
acquiring real property (10 years if ordinary
Accretion is the process whereby the soil is
prescription or 30 years if extraordinary
deposited while alluvium is the soil deposited.
prescription), it subjects said accretion to
acquisition thru prescription by third persons.
Requisites of accretion
(Reynante v. CA, G.R. No. 95907, April 8, 1992)
1. Deposit be gradual and imperceptible;
However, registration under the Torrens System
2. Resulted from the effects of the current of does not protect the riparian owner against the
the water; and
diminution of the area of his registered land
3. The land where the accretion takes place is
through gradual changes in the course of an
adjacent to the banks of a river.
adjoining stream.
If all the requisites are present, the riparian
Q: Benjamin is the owner of a titled lot which
owner is automatically entitled to the accretion.
is bounded on the north by the Maragondon
River. An alluvial deposit of two (2) hectares
NOTE: The alluvion starts to become the
was added to the registered area. Daniel took
property of the riparian owner from the time
possession of the portion formed by
that the deposit created by the current of water
accretion and claims that he has been in
becomes manifest. (Heirs of Navarro v. IAC, G.R.
open, continuous and undisturbed
No. 68166, February 12, 1997)
possession of said portion since 1923 as
shown by a tax declaration. In 1958,
Man-made or artificial accretions to lands
Benjamin filed a Complaint for Quieting of
NOT included
Title and contends that the alluvium belongs
to him as the riparian owner and that since
The rule on alluvion does not apply to man-
UNIVERSITY OF SANTO TOMAS 208
2021 GOLDEN NOTES
 Civil Law
the alluvium is, by law, part and parcel of the
registered property, the same may be
considered as registered property. Decide
the case and explain. (2016 BAR)
A: I will decide in favor of Daniel and dismiss
the action to quiet title filed by Benjamin.
Under Article 457 of the Civil Code, the owner of
lands adjoining the banks of rivers belong the
accretion which they gradually receive from the
effects of the current of the waters. The
accretion, however, does not automatically
become registered land. It must be brought
under the Torrens system of registration by
Benjamin, the riparian owner. Since he did not,
the then increment, not being registered land,
was open to acquisition through prescription by
third persons, like Daniel. (Ignacio Grande, et. al.
v. Court of Appeals, G.R. No. L-17652, June 30,
1962; Leonida Cureg v. Intermediate Appellate
Court, G.R. No. 73465, September 7, 1989)
Reasons for granting a riparian owner the
right to alluvion deposited by a river
1. To compensate him for:
a. Danger of loss that he suffers due to the
location of his land; and
b. The encumbrances and other easements
on his land
2. To promote the interests of agriculture as he
is in the best position to utilize the accretion.
The owners of estates adjoining ponds or
lagoons do not acquire the land left dry by the
natural decrease of the waters, or lose that
inundated by them in extraordinary floods.
(NCC, Art. 458)
NOTE: This rule does not apply to lakes.
Q: The First Accretion adjoined the southern
portion of the Motherland. Decades later, the
Second Accretion abutted the First Accretion
on its southern portion. OCT was issued in
the names of all the respondents covering
the Second Accretion. Petitioners alleged
that through deceit, fraud, falsehood, and
misrepresentation, respondent Victoriano,
with respect to the First Accretion, and the
respondents collectively, with regard to the
Second Accretion, had illegally registered the
said accretions in their names,
notwithstanding the fact that they were not
209
the riparian owners. Are the petitioners the
exclusive owners of the First and Second
Accretion?
A: NO. Petitioners are not the riparian owners of
the Motherland to which the First Accretion had
attached, hence, they cannot assert ownership
over the First Accretion. Consequently, as the
Second Accretion had merely attached to the
First Accretion, they also have no right over the
Second Accretion. Neither were they able to
show that they acquired these properties
through prescription as it was ·not established
that they were in possession of any of them.
Being the owner of the land adjoining the
foreshore area, respondent is the riparian or
littoral owner who has preferential right to lease
the foreshore area. Accordingly, therefore,
alluvial deposits along the banks of a creek or a
river do not form part of the public domain as
the alluvial property automatically belongs to
the owner of the estate to which it may have
been added. The only restriction provided for by
law is that the owner of the adjoining property
must register the same under the Torrens
system; otherwise, the alluvial property may be
subject to acquisition through prescription by
third persons. (Heirs of Francisco I. Narvasa, Sr.
et.al v. Emiliana Imbornal et.al, G.R. No. 182908,
August 6, 2014)
Art. 459. Whenever the current of a river,
creek or torrent segregates from an estate
on its bank a known portion of land and
transfers it to another estate, the owner of
the land to which the segregated portion
belonged retains the ownership of it,
provided that he removes the same within
two years.
CHANGE IN THE COURSE OF THE RIVER
Whenever a river, changing its course by natural
causes, opens a new bed through a private
estate, this bed shall become of public dominion.
(NCC, Art. 462)
Requisites (NAPA)
1. There must be a Natural change in the
course of the waters of the river; otherwise,
the bed may be the subject of a State grant;
2. The change must be Abrupt or sudden;
3. The change must be Permanent; and
Property
NOTE: The rule does not apply to temporary ALLUVIUM AVULSION
overflowing of the river. Gradual and Sudden or abrupt
imperceptible. process.
4. There must be Abandonment by the owner Soil cannot be Identifiable and
of the bed. identified. verifiable.
Belongs to the Belongs to the
NOTE: Abandonment pertains to the decision owner of the owner from whose
not to bring back the river to the old bed. property to property
which it is attached. it was detached.
Effect when the river bed is abandoned Merely an Detachment
attachment. followed by
River beds which are abandoned through the attachment.
natural change in the course of the waters ipso
facto belong to the owners whose lands are Requisites of avulsion (CAI)
occupied by the new course in proportion to the
area lost. However, the owners of the lands 1. Transfer is caused by the Current of a river,
adjoining the old bed shall have the right to creek, or torrent;
acquire the same by paying the value thereof, 2. Transfer is sudden or Abrupt; and
which value shall not exceed the value of the 3. The portion of the land transported is known
area occupied by the new bed. (NCC, Art. 461) or Identifiable.
NOTE: The rule on abandoned river bed does NOTE: By analogy, land transferred from one
not apply to cases where the river simply dries tenement to another by forces of nature other
up because there are no persons whose lands than the river current can still be considered as
are occupied by the waters of the river. an avulsion.
Under the Water Code, the government or the Rule on acquisition of titles over an avulsion
riparian owner may return the river back to the
original bed. (P.D. 1067, Art. 58) GR: Original owner retains title.
Art. 460. Trees uprooted and carried away XPNs: The owner must remove (not merely
by the current of the waters belong to the claim) the transported portion within two years
owner of the land upon which they may be to retain ownership, otherwise, the land not
cast, if the owners do not claim them within removed shall belong to the owner of the land to
six months. If such owners claim them, they which it has been adjudicated in case of:
shall pay the expenses incurred in gathering
them or putting them in a safe place. 1. Abandonment; or
2. Expiration of two years, whether the failure
to remove be voluntary or involuntary, and
AVULSION
irrespective of the area of the portion known
It is the deposit of known (identifiable) portion to have been transferred.
of land detached from the property of another
which is attached to the property of another as a Rule on avulsion of uprooted trees
result of the effect of the current of a river, creek
or torrent. (2001 BAR) GR: The owner of the tree retains ownership.
Whenever the current of a river, creek, or XPN:
1. The owner must claim them within a period
torrent segregates from an estate on its banks a
known portion of land and transfers it to of six months; and
another estate, the owner of the land to which
the segregated portion belonged retains the NOTE: The claim does not require actual
recovery. It can be recovered on the basis of
ownership of it, provided that he removes the
prescriptive period for acquiring movables
same within 2 years. (NCC, Art. 459) (2001 BAR)
which is four years.
2. If uprooted trees have been transplanted by
Alluvium vs. Avulsion (2001 BAR)
the owner of the land which the trees may
UNIVERSITY OF SANTO TOMAS 210
2021 GOLDEN NOTES
 Civil Law
have been cast and said trees have taken
root in said land, the owner of the trees,
upon making the claim, is required to refund
the expenses incurred in gathering them or
in putting them in safe place, including the
expenses incurred by the owner of the land
for the preservation of the trees. (Rabuya,
2008)
Art. 463. Whenever the current of a river
divides itself into branches, leaving a piece
of land or part thereof isolated, the owner of
the land retains his ownership. He also
retains it if a portion of land is separated
from the estate by the current.
Effects of Ramifications of A River
1. Some parts of the original estate may be
isolated but remaining steady and secure on
their location;
2. Other parts may be separated and pushed
away from the original estate.
Art. 464. Islands which may be formed on
the seas within the jurisdiction of the
Philippines, on lakes, and on navigable or
floatable rivers belong to the State.
Art. 465. Islands which through successive
accumulation of alluvial deposits are
formed in non-navigable and non-floatable
rivers, belong to the owners of the margins
or banks nearest to each of them, or to the
owners of both margins if the island is in the
middle of the river, in which case it shall be
divided longitudinally in halves. If a single
island thus formed be more distant from
one margin than from the other, the owner
of the nearer margin shall be the sole owner
thereof.
ISLANDS
Rules on ownership with regard to formation
of islands
LOCATION OWNER
If formed on the sea
Within territorial State
waters
Outside territorial First country to occupy
waters
If formed on lakes or navigable/floatable
rivers
State
211
If formed on non-navigable/non-floatable
rivers
Nearer in margin to Owner of nearer
one bank margin is the sole
owner
If equidistant Island divided
longitudinally in halves.
Q: Eduave is the owner of land forming part
of an island in a non-navigable river. Said
land was eroded due to a typhoon,
destroying the bigger portion thereof and
improvements thereon. Due to the
movements of the river deposits on the part
of the land that was not eroded, the area was
increased. Later, Eduave allowed Dodong to
introduce improvements thereon and live
there as a caretaker. However, Dodong later
latter filed action to quiet title over the
property. Who has a better right to the land?
A: EDUAVE has a better right to the land. The
land in question is an island that appears in a
non- floatable and non-navigable river, and it is
not disputed that Eduave is the owner of the
parcel of land. The island belongs to the owner
of the parcel of land nearer the margin. (NCC,
Art. 465) Because the island is longer than the
property of Eduave, he is deemed ipso jure the
owner of that portion which corresponds to the
length of his property along the margin of the
river. (Jagualing v. CA, G.R. No. 94283, March 4,
1991)
NOTE: There is no accession when islands are
formed by the branching of a river; the owner
retains ownership of the isolated piece of land.
MOVABLES
Art. 466. Whenever two movable things
belonging to different owners are, without
bad faith, united in such a way that they
form a single object, the owner of the
principal thing acquires the accessory,
indemnifying the former owner thereof for
its value
Different kinds of accession continua as
regard movables
1. Adjunction or conjunction;
2. Mixture; and
3. Specification.
Property
Adjunction
It is the process by virtue of which two movable
things belonging to different owners are united
in such a way that they form a single object and
each of the things united preserves its own
nature. (NCC, Art. 466)
Requisites of adjunction (2BUS)
There is adjunction when there are:
1. Two (2) movables;
2. Belonging to different owners;
3. United forming a single object; and
4. Separation would impair their nature or
result in substantial injury to either thing.
Classes of adjunction or conjunction
1. Painting (pintura);
2. Engraftment or Inclusion - Like setting a
precious stone on a golden ring;
3. Writing (escritura);
4. Weaving; and
5. Soldering- Joining a piece of metal to another
metal
a. Ferruminacion -Principal and accessory
are of the same metal; or
b. Plumbatura Different metals (NCC, Art.
468)
Ownership of the resulting object
The owner of the principal by law becomes
owner of the resulting object and should
indemnify the owner of the accessories for the
values thereof.
Good faith is necessary in Adjunction
Art. 526 explains that good faith is that condition
of the mind where the person concerned is not
aware that there exists in his title or mode of
acquisition any flaw which invalidates it.
If the owner of the principal thing acted in bad
faith, Art. 470 (par. 2) will apply NOT Art. 466.
(Pineda, 2009)
Art. 467. The principal thing, as between
two things incorporated, is deemed to be
that to which the other has been united as
an ornament, or for its use or perfection.
Art. 468. If it cannot be determined by the
rule given in the preceding article which of
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
the two things incorporated is the principal
one, the thing of the greater value shall be
so considered, and as between two things of
equal value, that of the greater volume.
Tests to determine the principal
1. That of greater value;
2. If two things are of equal value That of
greater volume;
3. If two things are of equal volume That to
which the other has been united as an
ornament, or for its use or perfection; and
4. That which has greater merits, utility and
volume if things. (NCC, Art. 468)
NOTE: In painting and sculpture, writings,
printed matter, engraving and lithographs, the
board, metal, stone, canvas, paper or parchment
shall be deemed the accessory thing. (NCC, Art.
468)
Ownership when the adjunction involves
three or more things
If the adjunction involves three or more things,
the court should first distinguish the principal
and apply Art. 466 in an equitable manner such
that the principal acquires the accessory,
indemnifying the former owner thereof for its
value.
Art. 469. Whenever the things united can be
separated without injury, their respective
owners may demand their separation.
Nevertheless, in case the thing united for
the use, embellishment or perfection of the
other, is much more precious than the
principal thing, the owner of the former
may demand its separation, even though the
thing to which it has been incorporated may
suffer some injury.
Separation of things is allowed in the
following cases:
1. Separation without injury;
2. Separation with injury Accessory is much
more precious than the principal, the owner
of the former may demand its separation
even though the principal may suffer injury;
3. Owner of the principal acted in Bad faith.
(NCC, Art. 469)
Art. 470. Whenever the owner of the
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 Civil Law Property
accessory thing has made the incorporation though there is or without new thing to himself, after first paying
in bad faith, he shall lose the thing injury to the injury to Kinds of mixtures (COM-CON) indemnity for the value of the work, or
incorporated and shall have the obligation principal and pay principal and 1. Commixtion mixture of solids; and demand indemnity for the material.
to indemnify the owner of the principal damages. receive 2. Confusion mixture of liquids
thing for the damages he may have suffered. damages. If in the making of the thing bad faith
If the one who has acted in bad faith is the Bad faith Proportionate Ownership In Commixtion Or intervened, the owner of the material shall
owner of the principal thing, the owner of Confusion have the right to appropriate the work to
the accessory thing shall have a right to Same as though both acted in good faith. himself without paying anything to the
choose between the former paying him its If the things mixed or confused are not separable maker, or to demand of the latter that he
value or that the thing belonging to him be Art. 471. Whenever the owner of the without injury, each owner shall have a right to indemnify him for the value of the material
separated, even though for this purpose it material employed without his consent has the resulting thing proportionate to the value of and the damages he may have suffered.
be necessary to destroy the principal thing; a right to an indemnity, he may demand that the thing he owns. (Pineda, 2009) However, the owner of the material cannot
and in both cases, furthermore, there shall this consist in the delivery of a thing equal appropriate the work in case the value of
be indemnity for damages. in kind and value, and in all other respects, Rules regarding mixtures the latter, for artistic or scientific reasons, is
to that employed, or else in the price considerably more than that of the material.
If either one of the owner has made the thereof, according to expert appraisal. By Will of Both Owners or by Accident
incorporation with the knowledge and Good faith Specification (NCC, Art. 474)
without the objection of the other, their 1. Right is subject to stipulations; or
Indemnity
respective rights shall be determined as 2. Right is in proportion to the part belonging It is the giving of new form to
though both acted in good faith. to. him (Co-ownership arises) (NCC, through application of labor. The material
It is made either by:
1. Delivery of a thing equal in kind and value; Art.422) undergoes a transformation or change of
Rights of owners over the thing in adjunction or By will of only one owner/ by chance identity. The labor is the principal and the
2. Payment of its price including the Good faith material used is the accessory.
PRINCIPAL OWNER OF THE sentimental value. (NCC, Art. 471) 1. Have the things separated provided the
ACCESSORY thing suffers no injury; or Respective rights of the maker and the owner
Good faith 2. If cannot be separated without injury, of the materials in specification
1. Acquire 1. Receive Art. 472. If by the will of their owners two acquire interest on mixture in proportion
accessory and payment for to his part (co-ownership). OWNER OF
things of the same or different kinds are MAKER
pay owner of the value of Bad faith (caused Good faith MATERIALS (OM)
mixed, or if the mixture occurs by chance,
accessory for its accessory; or and in the latter case the things are not the mixture) Good faith
value; or 2. GR: Demand separable without injury, each owner shall First owner will lose Second owner will GR: Appropriate the Receive payment for
2. Demand separation acquire a right proportional to the part his part on the acquire entire mixture thing transformed and value of materials.
separation provided the belonging to him, bearing in mind the value mixture and pay and entitled to pay the owner of the
provided the thing thing suffers no of the things mixed or confused. damages to the damages. materials for its value.
suffers no injury. injury. second owner.
XPN: If Bad faith Good faith (caused XPN: If the material is
accessory is Art. 473. If by the will of only one owner, but more precious than the
the mixture)
in good faith, two things of the same or thing transformed, the
more precious As if both acted in GF, As if both acted in GF,
different kinds are mixed or confused, the owner of the materials
than principal, because the 2nd since the first owner
rights of the owners shall be determined by has the option to:
he may demand owner in GF was the is in BF and the
the provisions of the preceding article. 1. Acquire the work
separation with one who caused the second owner who
or without ratification, because caused the mixture in and indemnify the
If the one who caused the mixture or maker for his
injury to the the first owner. GF in a way ratifies
confusion acted in bad faith, he shall lose labor; or
thing. the BF of first owner.
the thing belonging to him thus mixed or 2. Demand indemnity
Good faith Bad faith
confused, besides being obliged to pay for the material.
Acquire accessory Lose accessory and Art. 474. One who in good faith employs the
indemnity for the damages caused to the Good faith
without paying the pay damages. material of another in whole or in part in
owner of the other thing with which his own 1. Receive payment 1. Appropriate new
owner of accessory order to make a thing of a different kind,
was mixed. for value of his thing and pay the
and entitled to shall appropriate the thing thus
damages. transformed as his own, indemnifying the work; or maker for the
Bad faith Good faith Mixture 2. Appropriate the work; or
owner of the material for its value.
1. Pay value of 1. Receive new thing and 2. Receive payment
It is the combination of materials where the pay the owner of for value of
accessory and pay payment and
respective identities of the component elements materials for its materials.
damages; or damages; or If the material is more precious than the
are lost either voluntarily or by chance. (NCC, value.
2. Have the things 2. Have accessory transformed thing or is of more value, its
Articles. 472-473) Bad faith Good faith
separated, even separated with owner may, at his option, appropriate the

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 Civil Law Property
1. Lose the new thing 1. Appropriate the QUIETING OF TITLE Scope of the action to quiet title Oños' opposition, and upon order of the RTC,
and pay damages new thing Lim converted the petition for reconstitution
to owner of the without paying It is a proceeding in equity, the purpose of which Only real properties can be subject of an action into a complaint for quieting of title. The
materials; or and receive is the declaration of the invalidity of a claim on a for quieting of title. (Pineda, 2009) Oños now contend that this action for
2. Pay value of damages; or title or the invalidity of an interest in property quieting of title should be disallowed
materials and adverse to that of the plaintiff, and thereafter to Requisites for an action to quiet title (LCDR) because it constituted a collateral attack on
damages to owner NOTE: Not free the plaintiff and all those claiming under OCT No. RO-9969-(O-20449). Is their
of the materials. available if the him from any hostile claim thereon. (Pineda, 1. Plaintiff must have a Legal or equitable title contention correct?
new thing is 2009) to, or interest in the real property which is
more valuable the subject matter of the action; A: NO. The attack is direct when the objective is
than materials Quieting of title is a common law remedy for the to annul or set aside such judgment, or enjoin its
for scientific removal of any cloud upon, doubt, or uncertainty NOTE: He need not be in possession of said enforcement. On the other hand, the attack is
or artistic affecting title to real property. Whenever there property. (NCC, Art.477) indirect or collateral when, in an action to obtain
reasons. is a cloud on title to real property or any interest a different relief, an attack on the judgment is
in real property by reason of any instrument, 2. There must be Cloud in such title; nevertheless made as an incident thereof. The
2. Receive payment record, claim, encumbrance, or proceeding that averments readily show that the action was
for the value of is apparently valid or effective, but is, in truth 3. Such cloud must be Due to some (IRCEP) neither a direct nor a collateral attack for Lim
materials and and in fact, invalid, ineffective, voidable, or a. Instrument; was asserting only that the existing title
damages unenforceable, and may be prejudicial to said b. Record; registered in the name of the petitioners'
title, an action may be brought to remove such c. Claim; predecessors had become inoperative due to the
Adjunction, mixture, and specification cloud or to quiet the title. In such action, the d. Encumbrance; or conveyance in favor of Lim's mother, and
distinguished competent court is tasked to determine the e. Proceeding which is apparently valid resultantly should be cancelled. (Oño vs Lim, G.R.
respective rights of the complainant and the but is in truth invalid, ineffective, No. 154270, March 09, 2010)
ADJUNCTIO MIXTURE SPECIFICATIO other claimants, not only to place things in their voidable or unenforceable, and is
N N proper places, and make the claimant, who has and Art. 476. Whenever there is a cloud on title
Involves at Involves May involve no rights to said immovable, respect and not to real property or any interest therein, by
least two at least one thing (or disturb the one so entitled, but also for the 4. Plaintiff must reason of any instrument, record, claim,
things. two more) but form benefit of both, so that whoever has the right a. Return to the defendant all benefits he encumbrance or proceeding which is
things. is changed, will see every cloud of doubt over the property may have received from the latter; or apparently valid or effective but is in truth
Accessory Co- Accessory dissipated, and he can thereafter fearlessly b. Reimburse him for expenses that may and in fact invalid, ineffective, voidable, or
follows the ownershi follows the introduce any desired improvements, as well as have redounded to his benefit. unenforceable, and may be prejudicial to
principal. p results. principal. use, and even abuse the property. (Phil-Ville said title, an action may be brought to
Things joined Things The new object Development and Housing Corporation v. Maximo Reasons for quieting of title remove such cloud or to quiet the title.
retain their mixed or retains or Bonifacio, et al., G.R. No. 167391, June 8, 2011) An action may also be brought to prevent a
nature. confused preserves the 1. Prevent future litigation on the ownership of cloud from being cast upon title to real
may nature of the Nature of the action to quiet title the property; property or any interest therein.
either original object. 2. Protect true title & possession;
retain or Significantly, suits to quiet title are characterized 3. To protect the real interest of both parties; Rules in actions for quieting of title
lose their as proceedings quasi in rem. Technically, they and
respective are neither in rem nor in personam. In an action 4. To determine and make known the precise 1. These put an end to vexatious litigation in
natures. quasi in rem, an individual is named as state of title for the guidance of all. respect to property involved; plaintiff
defendant. However, unlike suits in rem, a quasi asserts his own estate & generally declares
in rem judgment is conclusive only between the Persons who may file an action to quiet title
Art. 475. In the preceding articles,
sentimental value shall be duly parties. A proceeding quasi in rem is one brought 2. Remedial in nature;
against persons seeking to subject the property 1. Registered owner; 3. Not suits in rem nor personam but suits
appreciated.
of such persons to the discharge of the claims 2. A person who has an equitable right or against a particular person or persons in
assailed. (Portic v. Cristobal, G.R. No. 156171, 22 interest in the property; or respect to the res (quasi in rem);
Sentimental Value 3. The State.
April 2005) 4. May not be brought for the purpose of
The value placed by the owner on the property settling a boundary disputes;
Classifications of actions Q: Lim filed in the RTC in Cebu City a petition 5. Applicable to real property or any interest
is more than the actual value by reason of some for the reconstitution of the owner's
sentiments like, love, affection, respect and therein;
1. Remedial action one to remove cloud on duplicate copy of OCT No. RO-9969-(O- 6. An action to quiet title brought by the
honor. 20449), alleging that said OCT had been lost
title; and person in possession of the property is
2. Preventive action one to prevent the during World War II by his mother, Luisa, IMPRESCRIPTIBLE; and
casting of a (threatened) cloud on the title. who acquired title to it by virtue of a deed of 7. If he is not in possession, he must invoke his
sale, albeit unregistered. On account of the remedy within the prescriptive period as

215 UNIVERSITY OF SANTO TOMAS 216

2021 GOLDEN NOTES
 Civil Law Property
follows; Plaintiff asserts own Plaintiff declares his prescription. must demolish the same to forestall the
a. Ordinary prescription- 10 years claim and declares own claim and title possibility of causing death or harm to anyone,
b. Extraordinary prescription- 30 years. that the claim of the and at the same time PRESCRIPTION OR or injury to property. (Pineda, 2009)
defendant is indicates the source NON-PRESCRIPTION OF ACTION
Requisites for existence of a cloud (ATP) unfounded and calls and nature of Art. 483. Whenever a large tree threatens to
on the defendant to claim Prescriptive periods for bringing an action to fall in such a way as to cause damage to the
1. There is an Apparently valid or effective justify his claim on pointing its defect quiet title land or tenement of another or to travelers
instrument; the property that and prays for the over a public or private road, the owner of
same may be declaration of its 1. Plaintiff in possession Imprescriptible; or the tree shall be obliged to fell and remove
NOTE: They must appear valid or effective determined by the validity. 2. Plaintiff not in possession it; and should he not do so, it shall be done
and extraneous evidence is needed to prove court. a. 10 years (ordinary) or at his expense by order of the
their invalidity or ineffectivity. Filed against whom b. 30 years (extra-ordinary). administrative authorities.
Against people who Against defendant who
2. But such instrument is in Truth: have claims; claims asserts claims based on Imprescriptibility of action to quiet title CO - OWNERSHIP
a. Invalid; are more general in an invalid instrument
b. Ineffective; nature (but not apparent). It is imprescriptible if plaintiff is in possession. If
c. Voidable; Art. 484. There is co-ownership whenever
not, it prescribes within period for filing accion the ownership of an undivided thing or
d. Unenforceable; Action to quiet title cannot be availed until publiciana or accion reinvidicatoria.
e. Has been extinguished or terminated; or right belongs to different persons.
the donation has been first revoked
f. Has been barred by extinctive In default of contracts, or of special
Laches provisions, co-ownership shall be governed
prescription. The barangay traces its claim of ownership over
by the provisions of this Title.
the disputed property to a valid contract of It is the failure or neglect, for unreasonable and
3. Such instrument may be Prejudicial to the donation which is yet to be effectively revoked. unexplained length of time, to do that which by
title. Such rightful claim does not constitute a cloud There is co-ownership whenever the ownership
exercising due diligence, could or should have
on the supposed title of Edgardo over the same of an undivided thing or right belongs to
been done earlier.
Purpose of an action to remove cloud on title property removable by an action to quiet title. different persons. (NCC, Art. 484) It is the right of
(Dolar v. Brgy. Lublub, G.R. No. 152663, November common dominion which two or more persons
The negligence or omission to assert a right
It is intended to procure the cancellation, or 18, 2005) have in a spiritual (or ideal) part of the thing
within a reasonable time, warranting a which is not physically divided.
delivery of, release of an instrument, presumption that the party entitled to assert it
encumbrance, or claim constituting a claim on Art. 477. The plaintiff must have legal or either has abandoned it or declined to assert it.
equitable title to, or interest in the real CHARACTERISTICS OF
(Tijam v Sibonghanoy, G.R. No. L-21450, April 15,
or vex him in the enjoyment of his title. property which is the subject matter of the CO-OWNERSHIP IN GENERAL
1968)
action. He need not be in possession of said
Action to quiet title v. Action to remove cloud property. 1. Plurality of subjects or owners;
An action filed within the period of limitations
on title may still be barred by laches. (NCC, Articles 2. There is no mutual representation by the co-
1431, 1433 and 1437) owners;
Indispensable Requirement for Action To
ACTION TO QUIET ACTION TO REMOVE 3. It exists for the common enjoyment of the
Quiet Title
TITLE CLOUD ON TITLE co-owners;
RUINOUS BUILDINGS AND TREES IN DANGER
As to purpose For an action to quiet title or remove cloud on a 4. There is a single object which is not
OF FALLING
To put an end to To procure the title to stand, the plaintiff must have legal or materially divided;
vexatious litigation in cancellation; delivery; 5. It has no distinct legal personality; and
equitable title to or interest in the subject real Art. 482. If a building, wall, column, or any
respect to the release of an 6. It is governed first of all by the contract of
property. This requirement is indispensable, the other construction is in danger of falling,
property involved. instrument, the parties; otherwise, by special legal
absence of which is fatal to the action. (Pineda, the owner shall be obliged to demolish it or
encumbrance or claim, provisions, and in default of such provisions,
2009) to execute the necessary work in order to
which constitutes a by the provisions of Title III of the New Civil
prevent it from falling. Code on co-ownership.
Legal title covers a situation when the owner is
and which may be used registered as the owner of the property.
to injure or to vex him Equitable title covers a situation when the Legal effect of co-ownership
in his enjoyment of his If the proprietor does not comply with this
person has the beneficial ownership of the obligation, the administrative authorities
title. Co-ownership creates rights in favor of each one
property. (Ibid.) may order the demolition of the structure at
As to nature of the action of the co-owners with respect to the property
Remedial in nature, Preventive in nature, the expense of the owner, or take measures owned in common.
Art. 478. There may also be an action to to insure public safety.
involving a present to remove a cloud quiet title or remove a cloud therefrom
adverse claim. which may be used The rights of a co-owner can be viewed in two
when the contract, instrument or other If a building, wall, column or any other senses:
for future actions. obligation has been extinguished or has
As to nature of claims construction is in danger of falling, the owner 1. His right over the thing owned in common is
terminated or has been barred by extinctive

217 UNIVERSITY OF SANTO TOMAS 218

2021 GOLDEN NOTES
 Civil Law Property
limited by the other co- the others for the without the consent of the other co-owners is be void. (NCC, Art. 485, par. 1) Consequently, in
concomitant rights; or purpose of not null and void but affects only his undivided order to determine the share of the co-owners in
2. His right over his ideal share or his prescription. share and the transferee gets only what would the benefits and charges, we must first
undivided interest over the same property; Prescription correspond to his grantor in the partition of the determine their respective interests in the co-
the individual co-owner has absolute control thing owned in common. (Paulmitan v. CA, G.R. ownership.
Prescription will Prescription will not
and ownership over his ideal share. No. 51584, November 25, 1992)
continue to run run among them.
Interests are presumed equal, unless the
among co-owners.
Requisites of co-ownership (PUS) Q: Is there such a thing as perpetual co- contrary is proved. (NCC, Art. 485, par. 2)
ownership?
Co-ownership vs. Partnership
1. Plurality of owners;
2. Unity of object, which is an undivided thing A: NO. Any of the co-owners may demand SOURCES OF CO-OWNERSHIP (LOST-C²)
or right; and CO-OWNERSHIP ORDINARY partition any time.
3. Each co- PARTNERSHIP
No legal personality Has legal 1. Law e.g. Easement of party walls (NCC, Art.
to his ideal Share of the physical whole. No co-owner ought to be compelled to stay in a
personality. 658); co-ownership between a man and a
co- ownership indefinitely. He may insist the
Can be created Can be created only woman capacitated to marry each other (Art.
NOTE: By the very nature of co-ownership, a co- partition of the property any time. Such action to
without the by contract, express or implied 147, FC); between a man and a woman not
owner cannot point to any specific portion of the demand for partition does not prescribe.
formalities of a capacitated to marry each other (Art. 148,
property owned in common as his own because (Patricio v. Dario, G.R. No. 170829, November 20,
contract FC);
his share remains intangible and ideal. (Spouses 2006)
By contract or by By contract only. 2. Occupancy e.g. When two persons gather
Avila et al v. Spouses Barabat, GR. No. 141993,
will. forest products or catch a wild animal;
May 17, 2006) A co-owner has a right to freely sell or dispose
Agreement to exist No term limit is set 3. Succession e.g. Heirs of undivided property
his undivided share of interest but has no right
for more than 10 by law. before partition;
Rules to govern in co-ownership to sell a divided or definite part of a real estate
years is void. 4. Testamentary (or mortis causa) / Donation
owned in common. (Lopez v. Illustre,G.R. No.
No mutual There is mutual inter vivos e.g. Where the donor prohibits
1. Contracts; 2426, January 24, 1906; Torres vs. Lapinid, G.R.
representation. representation. partition of the property for a certain period
2. Special provision of law; and No. 187987, November 26, 2014)
Not dissolved by the Dissolved by death of time;
3. Provisions of the civil code.
death/incapacity of or incapacity of a 5. Contract; or
In a property co-owned by the compulsory heirs,
a co- owner. partner. 6. By Chance or fortuitous event e.g. Hidden
Co-ownership vs. Joint tenancy any act tantamount to partition such as
A co-owner can A partner cannot be treasure
identifying their shares and constructing their
CO-OWNERSHIP JOINT OWNERSHIP dispose of his share substituted without respective houses automatically terminates co-
w/o the consent of the consent of the NOTE: One who is merely related by affinity to
Tenancy in Joint Tenancy ownership. (Avila v. Sps. Arabat, G.R. No.141993,
the others hence in a others. the decedent does not become a co-owner of the
common March 17, 2006)
As to the extent of ownership way a co- owner is
Each co-owner is the Each joint owner substituted. Duration of the co-ownership (2000, 2002,
Profits of a co-owner Profits may be Q: Hilaria Bagayas, an adoptive child, filed a
owner of his own owns the whole 2008 BAR)
depend on his stipulated upon; complaint against her siblings who excluded
ideal share. thing. her from inheriting from the estate of their
As to disposition proportionate share. (e.g., profit- An agreement to keep the thing undivided for a
sharing agreements). parents. She asked to include her as a
Each co-owner may Joint owner may not certain period of time, not exceeding ten years,
registered owner to the extent of one-third of
dispose of his dispose of his own For collective For profit. shall be valid. This term may be extended by a
the lands covered therein; citing Section 108
undivided share share without the enjoyment. new agreement.
without the other co- consent of all the No public May be made in any
r complaint, she asked
rest, because he instrument is form except when A donor or testator may prohibit partition for a
for the annulment of a Deed of Absolute Sale
really has no ideal needed even if the real property is period which shall not exceed twenty years (in
in favor of her brothers wherein the RTC
share. object of the co- contributed. relation to NCC, Art. 1083).
found otherwise. They found that the lands
As to transfer of shares in case of death ownership is an
where transferred to the brothers by the
immovable. Neither shall there be any partition when it is
Upon the death of a Upon the death of a prohibited by law. (NCC, Art. 494)
co- owner, his ideal joint owner, his he died. Is the dismissal of the earlier
Alienation of property co-owned
share goes to his share goes to the complaint on the ground that it is in the
Share of the co-owners in the benefits and
heirs. other joint owners nature of a collateral attack on the
When a co-owner sells the whole property as charges arising from the co-ownership
by accretion. certificates of title constitutes a bar to a
his, the sale will affect only his own share but
As to minority or legal disability subsequent petition under Section 108 of PD
not those of the other co- The share of the co-owners in the benefits and
In case of a minor The legal disability No 1529?
consent to the sale. charges arising from the co-ownership shall be
who is a co-owner, of one joint owner proportional to their respective interests and
this does not benefit benefits the others. A: It does not. Section 108 of PD No. 1529 is
A sale of the entire property by one co-owner any stipulation in a contract to the contrary shall
used only for contemplating corrections or

219 UNIVERSITY OF SANTO TOMAS 220

2021 GOLDEN NOTES
 Civil Law
insertions of mistakes which are only clerical
but certainly not controversial issues. Although
Hilaria Bagayas was able to prove that she is a
legally adoptive child, the action is not proper.
As her petition was of an annulment of sale and
partition. She must first prove that she is a co-
owner of the estate and conveyance of her lawful
shares. However, she failed to do so. As regards
to her citing of Section 108 of PD No. 1529, it
was improper as her intent for using it is as a
mode of directly attacking the certificates of title
issued to the Bagayas brothers. It was ruled that
it was not a direct attack, therefore cannot be
used. The complaint is not covered by the
intention of the decree. (Bagayas v. Bagas, G.R.
Nos. 187308 & 187517, September 18, 2013)
Art. 486. Each co-owner may use the thing
owned in common, provided he does so in
accordance with the purpose for which it is
intended and in such a way as not to injure
the interest of the co-ownership or prevent
the other co-owners from using it according
to their rights. The purpose of the co-
ownership may be changed by agreement,
express or implied.
RIGHT OF CO-OWNERS
General rights of each co-owner as to the
thing owned in common (USA-COPE-P)
1. To Use the thing according to the purpose
intended provided that:
a. It is without prejudice to the interest of
the co-ownership; and
b. Without preventing the use of other co-
owners. (NCC, Art. 486)
NOTE: The purpose of the co-ownership may
be changed by an agreement, express or
implied.
2. To Share in the benefits in proportion to his
interest, provided the charges are borne in
the same proportion (NCC, Art. 485);
NOTE: A contrary stipulation is void. Hence,
benefits cannot be stipulated upon by the co-
owners.
3. Each co-owner may bring an Action for
ejectment (NCC, Art. 487);
NOTE: Action for ejectment covers; forcible
entry, unlawful detainer, accion publiciana,
221
quieting of title, accion reivindicatoria, and
replevin.
4. To Compel other co-owners to contribute to
expenses for preservation of the thing (NCC,
Art. 488) and to the taxes;
5. To Oppose to any act of alteration (NCC, Art.
491) even if beneficial to the co-owners;
6. To Protect against acts of majority which are
prejudicial to the minority (NCC, Art. 492,
par. 3);
7. To Exercise legal redemption;
8. To ask for Partition (NCC, Art. 494);
9. Right to exempt himself from obligation of
paying necessary expenses and taxes by
renouncing his share in the pro-indiviso
interest; but cannot be made if prejudicial to
co-ownership (NCC, Art.488);
10. Right to make repairs for preservation of
things can be made at will of one co-owner;
receive reimbursement therefrom; notice of
necessity of such repairs must be given to
co- owners, if practicable (NCC, Art.489);
11. Right to full ownership of his part and fruits.
(NCC, Art. 493);
12. Right to alienate, assign or mortgage own
part; except personal rights like right to use
and habitation (NCC, Art.493);
13. Right of pre-emption;
14. Right to be adjudicated thing (subject to
right of others to be indemnified); and
15. Right to share in proceeds of sale of thing if
thing is indivisible and they cannot agree
that it be allotted to one of them. (NCC,
Art.498)
Duties/liabilities of co-owners
1. Share in charges proportional to respective
interest; stipulation to contrary is void;
2. Pay necessary expenses and taxes May be
exercised by only one co-owner;
3. Pay useful and luxurious expenses If
determined by majority;
4. Duty to obtain consent of all if thing is to be
altered even if beneficial; resort to court if
non-consent is manifestly prejudicial;
5. Duty to obtain consent of majority with
regards to administration and better
enjoyment of the thing; controlling interest;
court intervention if prejudicial
Appointment of administrator;
6. No prescription to run in favor of a co-owner
as long as he recognizes co-ownership;
Property
Requisites for acquisition through
prescription: A suit for ejectment CANNOT be brought by one
a. He has repudiated through co-owner against another co-owner, since the
unequivocal acts; latter also has a right of possession; the only
b. Such act of repudiation is made effect of the action will be to obtain recognition
known to other co-owners; of the co-ownership.
c. Evidence must be clear and
convincing RIGHT TO PROPERTY OWNED IN COMMON
vs. FULL OWNERSHIP OVER
7. Co-owners cannot ask for physical division if HIS/HER IDEAL SHARE
it would render thing unserviceable; but can
terminate co-ownership;
1. Right to property owned in common
8. After partition, duty to render mutual
accounting of benefits and reimbursements
NOTE: Each co-owner is granted the right to
for expenses.
use the property owned in common for the
purpose for which it is intended.
Rights of a co-owner to third parties
Two restrictions in the enjoyment of this
1. Assignees or creditors of the co-owners may
right:
take part in the division of the thing owned
a. The co- ownership shall not be
in common and object to it being effected
injured; and
without their concurrence, but they cannot
b. The exercise of such right shall not
impugn any partition already executed; and
prevent the other co- owners from
using the property according to their
XPN: If there has been fraud or it was made
own rights.
notwithstanding their formal opposition
presented to prevent it, without prejudice
2. Full ownership over his/her ideal share
to the right of the debtor or assignor to
maintain its validity. (NCC, Art. 497)
NOTE: A co-owner has full ownership of his
share (undivided interest) and the fruits and
2. Non-intervenors Retain rights of mortgage
benefits arising therefrom. Being the full owner
and servitude and other real rights and
thereof, he may alienate, assign or mortgage it.
personal rights belonging to them before
He can also substitute another person in the
partition was made.
enjoyment of his share, except only when
personal rights are involved.
Any of the co-owners may bring an action in
ejectment
Q: Melecio Heirs inherited a residential lot,
ancestral house and two other structures
One of the co-
erected thereon, the administration and
against a defendant is deemed to be instituted
management of which were left to the care of
for the benefit of all co-owners of the property.
Erna who was then residing in their ancestral
(Resuena v. CA, G.R. No. 128338, March 28, 2005)
home. The Melecio Heirs purportedly
executed a notarized Special Power of
Consent of the co-owners is not required to
Attorney (SPA) authorizing Erna to apply for
bring an action for ejectment
a loan with RBCI and mortgage the subject
properties. Erna defaulted in the loan
The law does not require that consent of all the
payment causing RBCI to extrajudicially
co- owners must be first secured before one of
foreclose the mortgaged properties.
them can bring an action for ejectment. If the
demanded RBCI to release the subject
case does not prosper:
properties from the coverage of Erna's loan
obligation to the extent of their shares and
GR: The other co-owners are NOT bound by the
refused to vacate the premises. RBCI applied
judgment.
for and was issued a writ of possession. The
Melecio Heirs filed a complaint in court
XPN: If they were also served with summons,
alleging that the SPA submitted by Erna was
even as unwilling plaintiffs.
spurious and their signatures appearing
UNIVERSITY OF SANTO TOMAS 222
2021 GOLDEN NOTES
 Civil Law Property
thereon were falsified. Is the mortgage of the et. al. sought to annul the Real Estate such a way as not to injure the interest of the co- Transitory in Permanent
entire property valid? Mortgage. They averred that Roque Magsano ownership or prevent the other co-owners from character.
passed away prior to the execution of the using it according to their rights. Does not affect the Affects or relates to
A: NO. Erna did not validly mortgage the entire Real Estate Mortgage; hence, the mortgage substance or form. the substance or
property. While Erna, as herself a co-owner, by was void, and could not have conferred any NOTE: If one co-owner alone occupies the entire essence of the
virtue of Article 493 of the Civil Code, had the right to PSLB which it could pass to Sps. house without opposition from the other co- thing.
right to mortgage or even sell her undivided Manuel. PSLB and the heirs of Sps. Manuel owners, and there is no lease agreement, the
In relation to the Require the
interest in the said properties, she, could not, denied knowledge of the death of Roque, and other co-owners cannot demand the payment of right of a co-owner, consent of all co-
however, dispose of or mortgage the subject averred that petitioners have no cause of rent.
they require the owners.
properties in their entirety without the consent action to seek the annulment of the Real
consent of the
of the other co-owners. The settled rule is that Estate Mortgage since they were not parties Rules on determination of the purpose of the majority who
persons constituting a mortgage must be legally thereto. property
represents the
authorized for the purpose. In the present case, 1. Is the Real Estate Mortgage void?
controlling interest.
while Erna appears to be a co-owner of the 2. Are Sps. Manuel purchasers in good faith? 1. Purpose stipulated in the agreement, express
Can be exercised by Must be exercised
mortgaged properties, she made it appear that or implied;
the co- by the co-owners
she was duly authorized to sell the entire A: 2. In default thereof, its purpose ordinarily
owners through themselves.
properties by virtue of the notarized SPA. (Rural 1. NO. The validity of the Mortgage in favor of adapted based on its nature; or
other persons.
Bank of Cabadbaran, Inc. v. Jorgita A. Melecio-Yap 3. In default thereof, the use for which it was
et. al, G.R. No. 178451, July 30, 2014) portion. At the time the Mortgage was formerly intended.
Effect of alteration without the express or
constituted, Roque was already deceased.
implied consent of co-owners
Q: Vda. Rosario is the registered owner of 4 ACTS OF ALTERATION
parcels of land, which she mortgaged to and partnership between him and Susana was
The co-owner who makes the alteration shall:
foreclosed. Upon the expiration of the dissolved. Thus, an implied co-ownership Alteration (2008 BAR)
redemption period, she asked the assistance arose among Susana and the other heirs of
1. Lose what he has spent;
of Bobby Tan. Thereafter, she sold the lands Roque with respect to his share in the It is a change which is more or less permanent, 2. Be obliged to demolish the improvements
to him. The children of Vda. Rosario said they assets of the conjugal partnership pending which changes the use of the thing and which done; and
are co-owners as they are inheritors of their liquidation. prejudices the condition of the thing or its 3. Pay for the loss and damages the
deceased father, whose approval was needed enjoyment by the others. (Paras, 2008) community property or other co-owners
to dispose the subject properties. Are the While she herself as co-owner had the right
may have suffered.
subject properties of conjugal in nature, thus to mortgage or even sell her undivided Alteration includes the act by virtue of which a
making the children of Vda. Rosario co- interest in the subject property, she could co- owner changes the thing from the state in NOTE: Estoppel will operate against the co-
owners? not mortgage or otherwise dispose of the which the others believe it should remain. It is owners who were aware of the execution of the
same in its entirety without the consent of not limited to material charges. acts of alteration, but did not object thereto.
A: NO. SC ruled that Vda. Rosario is the sole the other co-owners.
They are deemed to have given their implied
owner of the parcel of lands. Conjugal Acts of administration v. Acts of alteration consent.
partnership terminates upon the death of one 2. NO. While the rule is that every person
spouse. Vda. Rosario was already a widow when dealing with registered land may safely rely
ACTS OF ACTS OF Conversion
she sold the subjected lands to Bobby Tan. on the correctness of the certificate of title
Therefore, at the time of the sale, Vda. Rosario, a issued therefor and the law will in no way ADMINISTRATION ALTERATION
widow, can now dispose the properties on her oblige him to go beyond the certificate to
Refers to the Acts, by virtue of property without lawful authority to do so in a
own volition. (Bobby Tan v. Grace Andrade, G.R. determine the condition of the property,
enjoyment, which, a co-owner, manner different from that with which a
No. 171904, August 07, 2013) where the land sold is in the possession of a
exploitation, in opposition to the property is held by the trustees to whom the
person other than the vendor, as in this
alteration of the expressed or tacit owner had entrusted the same. It is not
Q: Spouses Roque Magsano and Susana case, the purchaser must go beyond the
thing which do not agreement of all necessary that the use for which the property is
Capelo (Sps. Magsano), the parents of Norma, certificate of title and make inquiries
affect its substance, the co- owners, and given be directly to the advantage of the person
et. al., executed in favor of PSLB a Real Estate concerning the actual possessor. (Norma C.
form, or purpose. in violation of their misappropriating or converting the property of
Mortgage over their parcel of land as security Magsano, et. al. v. Pangasinan Savings &
will, changes the another.
for their loan. Sps. Magsano defaulted in their Loan Bank, G.R. No. 215038, October 17,
thing from the state
obligation, causing the extra-judicial 2016)
in which the others RIGHT TO PARTITION
foreclose of the mortgaged property in which
believe it would
PSLB emerged as the highest bidder. It Co-
remain, or Rights of co-owners as to the ideal share of
subsequently sold the subject land to Sps. in common
withdraws it from each (FARTS)
Manuel. Thereafter, Sps. Magsano refused to
the use to which
Each co-owner may use the thing owned in
they believe it is 1. Each has Full ownership of his part and of
hence, the latter applied for and was granted common, provided he does so in accordance
intended. his share of the fruits and benefits;
a writ of possession and demolition. Norma with the purpose for which it is intended and in

223 UNIVERSITY OF SANTO TOMAS 224

2021 GOLDEN NOTES
 Civil Law
2. Right to Alienate, dispose or encumber;
3. Right to Renounce part of his interest to
reimburse necessary expenses incurred by
another co-owner;
4. Right to enter into Transaction affecting his
ideal share; and
NOTE: The transaction affects only his
ideal share and not that of the other co-
owners.
5. Right to Substitute another person in its
enjoyment, except when personal rights are
involved.
NOTE: Personal rights or jus in personam
is the power belonging to one person to
demand from another, as a definite passive
subject- debtor, the fulfillment of a
prestation to give, to do, or not to do.
(Paras, 2008)
Right to demand partition
GR: Every co-owner has the right to demand
partition. (NCC, Art. 494) (2000, 2002, 2008
BAR)
XPNs: (EASI-PAUL)
1. When partition would render the thing
Unserviceable;
2. When the thing is essentially Indivisible;
3. When partition is prohibited by Law by
reason of their origin or juridical nature -
e.g. party walls and fences;
4. When the co-owners Agree to keep the
property undivided for a period of time but
not more than 10 years;
5. When partition is Prohibited by the
transferor (donor/testator) but not more
than 20 years (NCC, Art. 1083);
6. When a co-owner possessed the property
as an Exclusive owner for a period
sufficient to acquire it through prescription
(acquisitive prescription);
NOTE: 10 years ordinary prescription, 30
years extra-ordinary partition.
7. When co-owners may agree that it be
Allotted to one of them reimbursing the
others; and
8. If they cannot agree, they may Sell the thing
and distribute the proceeds.
NOTE: The right to ask for partition CANNOT be
waived or renounced permanently. Such waiver
or renunciation is void.
225
Q: X, Y, Z are siblings who inherited a 1O-
storey building from their parents. They
agreed in writing to maintain it as a co-
owned property for leasing out and to divide
the net profits among themselves equally for
a period of 20 years. On the 9th year, X
wanted to get out of the co-ownership so he
could get his 1/3 share in the property. Y
and Z refused, saying X is bound by their
agreement to keep the co- ownership for 20
years. Are Y and Z correct? Explain. (2015
Bar)
A: Y and Z ARE PARTLY CORRECT. If the co-
owners agree to keep the thing undivided, such
agreement shall govern provided the period
shall not exceed ten (10) years. In this case, the
agreement to keep the thing undivided shall be
valid at the most for 10 years. (NCC, Art. 494)
When partition is not allowed
1. When indivision within 10 years is
stipulated by the co-owners;
2. When co-ownership is imposed as a
condition in a donation or in a last will and
testament;
3. When from the nature of the property in
common, it cannot just be divided (without
following the requisites of the law) such as
conjugal property and party walls;
4. When partition will render the property
unserviceable for the use and purpose for
which it is intended; and
5. When the issue of ownership had not been
definitely resolved, it is premature to effect
a partition of the properties. (Pineda, 2009)
Prescription
Q: May prescription run against a co-owner?
(2000, 2002, 2008 BAR)
GR: As long as the co-owner expressly or
impliedly recognizes the co-ownership,
prescription cannot run in favor of or against
him.
Reason: Possession of a co-owner is like that of
a trustee and shall not be regarded as adverse
to the other co-owners but in fact is beneficial
to all of them. Acts considered adverse to
strangers may not be considered adverse
insofar as co-owners are concerned. (Salvador
v. CA, G.R. No. 109910, April 5, 1995)
XPN: Co-owner's possession may be deemed
Property
adverse to the cestui que trust or the other co-
owners provided the following elements must
concur:
1. That he has performed unequivocal acts of
repudiation amounting to an ouster of the
cestui que trust or the other co- owners;
2. That such positive acts of repudiation have
been made known to the cestui que trust or
the other co-owners; and
3. That the evidence thereon must be clear
and convincing. (Salvador v. CA, G.R. No.
109910, April 5, 1995)
NOTE: Prescription begins to run from the time
of repudiation.
Example of acts of repudiation: filing of an
action to:
1. Quiet title; or
2. Recovery of ownership.
XPN to XPN: Constructive trusts can prescribe.
Express trust cannot prescribe as long as the
relationship between trustor and trustee is
recognized. (Paras, 2008)
Q: The two lots owned by Alipio were
inherited by his nine children, including
husband, filed a complaint for quieting of
title and annulment of documents against
the spouses Yabo, alleging that he owned a
total of 8 shares of the subject lots, having
purchased the shares of seven of Alipio's
children and inherited the share of his wife,
Maria, and that he occupied, cultivated, and
possessed continuously, openly, peacefully,
and exclusively the parcels of land. He
prayed that he be declared the absolute
owner of 8/9 of the lots. His co-heirs then
instituted an action to partition the lots. Did
Pastor acquire by prescription the shares of
his other co-heirs or co-owners?
A: NO. The only act which may be deemed as
repudiation by Pastor of the co-ownership over
the lots is his filing of an action to quiet title.
The period of prescription started to run only
from this repudiation. However, this was tolled
when his co-heirs, instituted an action for
partition of the lots. Hence, the adverse
possession by Pastor being for only about six
months would not vest in him exclusive
ownership of his wife's estate, and absent
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
acquisitive prescription of ownership, laches
and prescription of the action for partition will
not lie in favor of Pastor. (Salvador v. CA, G.R.
No. 109910, April 5, 1995)
Notice of the proposed partition to creditors
and/or assignees
The law does not require that a notification be
given but:
1. If notice is given it is their duty to appear
to concur /oppose,
claims are deemed waived; and
2. If no notice is given creditors and/or
assignees may still question the partition
made on ground of fraud or for being
prejudicial to existing rights.
NOTE: Third persons who have rights attached
to the community property before its partition,
shall retain such rights even after the partition
of the property. The protection granted by law
applies to both real and personal rights.
(Pineda, 2009)
Impugning partition already implemented
GR: A partition already executed or
implemented CANNOT be impugned.
XPNs:
1. In case of fraud, regardless of notification
and opposition; or
2. In case partition was made over their
objection even in absence of fraud. (NCC,
Article 497)
Remedies available to co-owners where the
co- owned property cannot be physically
divided without rendering it useless or
unserviceable (NCC, Art. 498)
1. Agree on the allotment of the entire
property to one of them who in turn will
indemnify the others for their respective
interests; or
2. Sell the property and distribute the
proceeds to the co-owners. (Pineda, 2009)
Rights of third persons that are not affected
by partition (MRS-P)
1. Rights of
a. Mortgage;
b. Servitude; and
c. Any other Real rights existing before
226
 Civil Law
partition.
2. Personal rights pertaining to third persons
against the co-ownership. (NCC, Art. 499)
Illustration: A, B and C where co-owners of
parcel of land mortgaged to M. If A, B, and C
should physically partition the property, the
lots, which, together, formerly constituted one
single parcel. If A alone had contracted an
unsecured obligation, he would of course be the
only one responsible. (Paras, 2008)
Rights of third persons in case of partition
(NCC, Art. 499)
1. The partition of a thing owned in common
shall not prejudice third persons, who shall
retain the rights of mortgage, servitude or
any other real rights belonging to them
before the division was made; and
2. Personal rights pertaining to them against
the co-ownership shall also remain in force,
notwithstanding the partition.
RIGHT TO CONTRIBUTION FOR EXPENSES
Expenses which the co-owners can be
compelled to contribute
Only necessary expenses. Useful expenses and
those for pure luxury are not included.
Necessary expenses, useful expenses, and
expenses of pure luxury defined
Are those made for the
preservation of the thing, or
those without which the thing
would deteriorate or be lost, or
Necessary those that augment the income
Expenses of the things upon which are
expended, or those incurred for
cultivation, production, upkeep,
etc. (Mendoza v. De Guzman, G.R.
No. L-28721 October 5, 1928)
Incurred for the preservation of
the realty in order that it may
Useful
produce the natural, industrial,
Expenses
and civil fruits it ordinarily
produces.
Adds value to the thing only for
certain persons in view of their
Ornamental
particular whims, neither
Expenses
essential for preservation nor
useful to everybody in general.
227
Acts of preservation (NCC, Art.489)
Acts of preservation may be made in the
property of the co-owners at the will of one of
the co- owners, but he must, if practicable, first
notify the others of the necessity of such
repairs.
Acts requiring the majority consent of the
co- owners
1. Management;
2. Enjoyment; and
3. Improvement or embellishment.
Remedy of the minority who opposes the
decision of the majority in co-ownership
Minority may appeal to the court against the
prejudicial.
There is no majority unless the resolution is
approved by the co-owners who represent the
controlling interest in the object of the co-
ownership. [NCC, Art. 492(2)]
WAIVER
A co-owner may opt not to contribute to the
expenses for the preservation of the
property
GR: YES, by renouncing his undivided interest
equal to the amount of contribution.
XPN: If the waiver or renunciation is prejudicial
to the co-ownership, otherwise he cannot
exempt himself from the contribution. (NCC,
Art. 488)
NOTE: The value of the property at the time of
the renunciation will be the basis of the portion
to be renounced.
Failure or refusal of a co-owner to
contribute pro rata to his share in expenses
NOT tantamount to renunciation
There must be an express renunciation,
otherwise he is required to reimburse the
others for the expenses they incurred.
Effect of renunciation
Since renunciation is intended as payment for
expenses already made, it is in nature of dacion
en pago - there is a change in the object of the
Property
obligation (i.e. from sum of money to interest in
the co-ownership). Consequently, the consent
of the other co-owner who made the advances
is necessary. (Tolentino, 2013)
Renunciation CANNOT be made without the
consent of any unpaid creditor. This is because
it is in effect a novation by substitution. It will
prejudice the rights of the unpaid creditor.
RIGHT OF REDEMPTION OF
CO-OWNERS SHARE
The shares of all or any other co-owner if sold
to a third person may be redeemed by a co-
owner.
If two or more co-owners want to redeem, they
may do so in proportion to the shares they
respectively have.
Effect of redemption by a co-owner
Redemption of the whole property by a co-
owner does not vest in him sole ownership over
said property. Redemption within the period
prescribed by law will inure to the benefit of all
co-owners. Hence, it will not put an end to
existing co-ownership. (Mariano v. CA, GR. No.
101522, May 28, 1993)
Right of legal redemption cannot be
exercised when there is no co-ownership
Once the property is subdivided and distributed
among the co-owners, the community ceases to
exist and there is no more reason to sustain any
right of legal redemption. The exercise of this
right presupposes the existence of a co-
ownership at the time the conveyance is made
by a co-owner and when it is demanded by the
other co-owners. (Vda. de Ape v. CA, G.R. No.
133638, April 15, 2005)
A co-owner cannot alienate the shares of his
other co-owners
While a co-owner has the right to freely sell and
dispose of his undivided interest, nevertheless,
as a co-owner, he cannot alienate the shares of
his other co-owners. The disposition made by
Villaner affects only his share pro indiviso, and
the transferee gets only what corresponds to
his grantor's share in the partition of the
property owned in common. The property
being conjugal, Villaner's interest in it is the
undivided one-half portion. When his wife died,
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
her rights to the other half was vested to her
heirs including Villaner and their 8 legitimate
children. (Acabal v. Acabal, G.R. No. 148376,
March 31, 2005)
Status of the sale by a co-owner
A sale of the entire property by one co-owner
without the consent of the other co-owners is
valid. However, it will only affect the interest or
share in the undivided property of the co-
owner who sold the same. The remedy is an
action for partition under Rule 69 of the
Revised Rules of Court, the division of the
common property. (Acabal v. Acabal, G.R. No.
148376, March 31, 2005)
TERMINATION/EXTINGUISHMENT
Extinguishment of Co-ownership (CALSTEP)
1. Confusion or merger of the rights in one co-
owner;
2. Acquisitive prescription in favor of a third
person or a co-owner who repudiates;
3. Loss or destruction of thing co-owned;
4. Sale of thing co-owned;
5. Termination of period agreed upon;
6. Expropriation; or
7. Judicial or extra-judicial Partition.
EFFECT OF PARTITION
1. It confers upon the co-owner exclusive title
over the property adjudicated to him (NCC,
Art. 1091); and
2. Possession of the co-owner over the
property adjudicated to him shall be
deemed exclusive for the period during
which the co-possession lasted. (NCC, Art.
543) In other words, it is deemed
continuous.
3. By judicial proceedings. (NCC, Art. 496)
Rule in case the co-owners cannot agree in
the partition
1. If realty is involved, an action for partition
(Rule 69, Rules of Court) against the co-
owners may be filed; and
2. In case of personality and actual partition
could not be made, it may be sold under the
discretion of the court and the proceeds be
divided among the owners after deducting
the necessary expenses.
228
 Civil Law
Rule in case the co-owners cannot agree as
to the partition of a thing which is
essentially indivisible
1. Firstly, the property may be allotted to one
of the co-owners, who shall indemnify the
other; or
2. Otherwise, it shall be sold, and the proceeds
distributed. (NCC, Art. 498)
Acts of co-ownership
1. Ejectment any of the co-owners may file
such action.
2. Administration majority of the co- owners
shall decide.
3. Improvements majority of the co-owners
shall take part.
4. Alteration all of the co-owners must agree.
5. Preservation any of the co-owners can do
so.
RIGHTS AGAINST INDIVIDUAL CO-OWNERS
IN CASE OF PARTITION
Obligations of co-owners upon partition
(WARD)
1. Mutual Accounting for benefits received,
fruits and other benefits (in relation to Art.
1087 of NCC);
2. Mutual Reimbursements for expenses;
3. Indemnity for Damages caused by reason of
negligence/fraud; and Reciprocal Warranty
for defects of title and quality of the portion
assigned to the co-owner. (NCC, Articles.
500-501)
PARTITION IN CASE CO-OWNERS
CANNOT AGREE
Partition is effected either by (1998 BAR):
1. By agreement between the parties; or
2. By judicial proceedings. (NCC, Art. 496)
Rule in case the co-owners cannot agree in
the partition
1. If realty is involved, an action for partition
(Rule 69, Rules of Court) against the co-
owners may be filed; and
2. In case of personality and actual partition
could not be made, it may be sold under the
discretion of the court and the proceeds be
divided among the owners after deducting
229
Property
the necessary expenses. GR: All things and rights susceptible of being 2. According to the concept of possession
appropriated. (NCC, Art. 530) a. In the concept of an owner (en concepto
Rule in case the co-owners cannot agree as de dueno) possessor, by his actions, is
to the partition of a thing which is XPNs: believed by others as the owner,
essentially indivisible 1. Res communes; whether he is in good or bad faith. (NCC,
2. Property of public dominion; Art. 525) Such possessor is presumed to
1. Firstly, the property may be allotted to one 3. Easement; and possess just title (NCC, Art. 540);
of the co-owners, who shall indemnify the 4. Prohibited by law. b. In the concept of a holder possessor
other; or holds it merely to keep or enjoy it, the
2. Otherwise, it shall be sold, and the proceeds Degrees of possession ownership pertaining to another; e.g.
distributed. (NCC, Art. 498) usufructuary with respect to the thing
1. Possession with no right or title itself. (NCC, Art. 525)
Acts of co-ownership (Grammatical Degree) Possessor knows
that his possession is wrongful. NOTE: None of these holders may assert a
1. Ejectment any of the co-owners may file claim of ownership for himself over the
such action. e.g. possession by a thief. thing but they may be considered as
2. Administration majority of the co- owners 2. With Juridical title (Juridicial Possession) possessors in the concept of an owner, or
shall decide. Title is not one of ownership. Possession under a claim of ownership, with respect to
3. Improvements majority of the co-owners peaceably acquired and will not ripen into the right they respectively exercise over the
shall take part. full ownership as long as there is no thing.
4. Alteration all of the co-owners must agree. repudiation of the concept under which There can be possession in concept of both
5. Preservation any of the co-owners can do property is held. owner and holder or in either.
so.
e.g. possession of a tenant, depositary. 3. According to the condition of the mind
POSSESSION (2008 BAR)
3. With Just title sufficient to transfer a. Possession in good faith possessor is
It refers to the holding of a thing or the ownership, but not from the true owner (Real not aware that there is in his title or
enjoyment of a right. (NCC, Art. 523) (2007 Possessory Right) ripens to full ownership mode of acquisition a defect that
BAR) by the lapse of time. invalidates it (NCC, Art. 526); and
b. Possession In bad faith possessor is
Requisites of possession (EPAV) e.g. Possession of a buyer of a car aware of the invalidating defect in his
purchased from one who pretends to be the own title. (NCC, Art. 526)
1. Existence of the thing or right; owner.
2. Possession in fact or holding or control of a NOTE: Only personal knowledge of the flaw
thing or right; 4. With a title in fee Simple (Dominium
3. Animus possidendi or the deliberate Possession) Arises from ownership; make him possessor in bad faith. It is not
intention to possess; and highest degree of possession; perfect transmissible even to an heir. Possession in
4. Possession is by Virtue possession. good faith ceases from the moment defects
either as an owner or as a holder. in his title are made known to the
CLASSES OF POSSESSION possessor.
Right TO Possession v. Right OF Possession
1. According to the name used as to its 4. According to extent of possession
Right TO Possession Right OF Possession existence a. Actual possession occupancy in fact of
Jus possidendi Jus possessionis a. possessor claims the whole or at least substantially the
An incident or An independent right, the thing for himself. (NCC, Art. 524) whole property; and
attribute of separate from b. In the name of another held by the b. Constructive possession occupancy of
ownership over a ownership. possessor for another; agent, subject part, in the name of the whole, under
thing. to authority and ratification; if not such circumstances that the law extends
authorized, negotiorum gestio. (NCC, the occupancy to the possession of the
e.g. The owner of a e.g. The lessee of a
Art. 524) whole.
house is entitled to property, who is not
possess it. the owner thereof, is i. Voluntary by virtue of an
entitled to possess it agreement; e.g. possession of an Q: What is the doctrine of constructive
for the period of the agent. possession?
lease. ii. Legal by virtue of law; e.g.
possession in behalf of A: The possession of a part is a possession of
incapacitated. the whole. To be considered in possession, one
Object of possession
UNIVERSITY OF SANTO TOMAS 230
2021 GOLDEN NOTES
 Civil Law
need not have actual or physical occupation of
every square inch of the property at all times.
(Habagat Grill v. DMC-Urban Property
Developer, Inc., G.R. No. 155110, March 31, 2005)
Requisites of constructive possession
1. Possessor was in actual possession of a
portion or part of the property;
2. Claim of ownership of the whole area;
3. Remainder of the area must not be in the
adverse possession of another person; and
4. Area claimed must be reasonable.
Possession vs. Occupation (2007 BAR)
POSSESSION OCCUPATION
Apply to properties Applies only to
whether with or property without an
without an owner. owner
Possession does not Occupation confers
confer ownership. ownership.
There can be There can be no
possession without occupation without
ownership ownership.
Person declared as the owner of a certain
property may still not be entitled to its
possession
Possession and ownership are distinct legal
concepts. Ownership confers certain rights to
the owner among which are the right to enjoy
the thing owned and the right to exclude other
persons from possession thereof. On the other
hand, possession is defined as the holding of a
thing or the enjoyment of a right. Literally, to
possess means to actually and physically
occupy a thing with or without a right. Thus, a
person may be declared an owner but not
entitled to possession. (Heirs of Roman Soriano
v. CA, G.R. No. 128177, August 15, 2001)
Tax declarations are not conclusive
evidence of ownership
Although tax declarations or realty tax payment
of property are not conclusive evidence of
ownership, nevertheless, they are good indicia
of possession in the concept of owner for no
one in his right mind would be paying taxes for
a property that is not in his actual or at least
constructive possession. They constitute at
least proof that the holder has a claim of title
over the property. The voluntary declaration of
a piece of property for taxation purposes
manifests no
231
desire to obtain title to the property and
announces his adverse claim against the State
and all other interested parties, but also the
intention to contribute needed revenues to the
s property. The basis is the LRA certification,
bona fide claim of acquisition of ownership.
(Ganila v. CA, G.R. No. 150755, June 28, 2005)
ACQUISITION OF POSSESSION
Modes of acquiring possession
1. By Material occupation (detention) of a
thing or the exercise of a right (quasi-
possession);
This includes:
a. Constitutum possessorium when the
possessor who is the owner of the
property continues his possession no
longer under a title of ownership but
under a title less than ownership, i.e.
lessee, depositary, etc.
b. Traditio brevi manu when the
possessor who is possessing the thing
by a title other than ownership,
continues to possess it under a new title,
now of ownership.
2. By Subjection of the thing/right to our will
which does not require actual physical
detention or seizure; and
This includes:
a. Traditio longa manu delivery by
consent or mere pointing.
b. Traditio symbolica delivery of a mere
symbol (e.g. key) placing the thing
under the control of the transferee.
3. By constructive possession or proper Acts
and legal Formalities established by law
such as succession, donation, execution of
public instruments. (NCC, Art. 531)
Q: Respondents inherited the subject
property from Emiliana Bacalso, by virtue of
Decree No. 98992. Sometime later, they
found the heirs of Alejandra Delfin to be
occupying the said property, to which they
even constructed houses there. The heirs
argued they have better right for it was
inherited to them after it was bought by the
predecessor from Emiliana Bacalso; also,
they are the ones paying the subject
have the better right to the ownership and
Property
possession of the subject property?
A: YES, respondents have the better right to the
ownership and possession of the subject
daybook entry, and Decree No. 98992 that was
issued to Emiliana Bacalso. The Decree bars all
claims and rights which arose as may have
existed prior to the decree of registration.
(Heirs of Alejandra Delfin v. Alevina Rabadon,
G.R. No. 165014, July 31, 2013)
Q: Spouses Gregorio and Rosario Centeno
previously owned the subject lots, which
they mortgaged in favor of Rural Bank of Sta.
Barbara, Inc. as security for a P1,753.65
loan. Sps. Centeno, however, defaulted on
the loan, prompting the bank to cause the
extrajudicial foreclosure of the mortgage.
Consequently, the subject lots were sold to
the bank, being the highest bidder at the
auction sale. Sps. Centeno failed to redeem
the subject lots within the one-year
redemption period pursuant to Section 6 of
Act No. 3135. Yet, they still continued with
the possession and cultivation of the
aforesaid properties.
Gerry Centeno, son of Sps. Centeno, later on
purchased the said lots from his parents.
Accordingly, Rosario paid the capital gains
taxes on the sale transaction and tax
declarations were eventually issued in the
name of Gerry.
On March 19, 1998, Rural Bank of Sta.
Barbara, Inc. filed a petition for the issuance
of a writ of possession before the trial court,
claiming entitlement to the said writ by
virtue of the Final Deed of Sale covering the
subject lots. Gerry opposed the petition,
arguing that he purchased and has, in fact,
been in actual, open and exclusive
possession of the same properties for at
least 15 years. Is the Rural Bank of Sta.
Barbara, Inc. is entitled to a writ of
possession over the subject lots?
A: YES. It is well-established that after
for failure of the mortgagor to redeem the
property, the purchasers right to possession
ripens into the absolute right of a confirmed
owner. At that point, the issuance of a writ of
possession, upon proper application and proof
of title, to a purchaser in an extrajudicial
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
foreclosure sale becomes merely a ministerial
function, unless it appears that the property is
in possession of a third party claiming a right
adverse to that of the mortgagor.
Gerry Centeno acquired the subject lots from
his parents, Sps. Centeno, on March 14, 1988
after they were purchased by Rural Bank of Sta.
Barbara, Inc. and its Certificate of Sale at Public
Auction was registered with the Register of
Deeds of Iloilo City in 1971. It cannot therefore
be disputed that Gerry is a mere successor-in-
interest of Sps. Centeno. Consequently, he
cannot be deemed as a third party who is
holding the property adversely to the judgment
obligor under legal contemplation. (Rural Bank
of Sta. Barbara, Inc. v. Gerry Centeno, G.R. No.
200667, March 11, 2013)
Essential elements of acquiring possession
1. Corpus Refers to the existence of the thing
and its holding; and
2. Animus Refers to the intent to possess the
thing.
Actual possession distinguished from
constructive possession
Actual possession consists in the manifestation
of acts of dominion over property of such a
nature as a party would naturally exercise over
his own; Constructive possession may be had
through succession, donation, execution of
public instruments, or the possession by a
sheriff by virtue of a court order. (Remington
Industrial Sales Corp v. CYMCAPI, G.R. No.
171858, January 22, 2007)
Acquisition of possession according to
person of possessor (NCC, Art. 532)
1. Personal The possession acquired by the
same person who is to enjoy it, either the
owner or a mere holder.
Requisites:
a. Capacity to possess;
b. Intent to possess; and
c. Object must be capable of being
possessed.
2. Through an authorized person Acquisition
of possession through a legal
representative as provided by law or by
appointing an agent.
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 Civil Law
Requisites:
a. Capacity to possess of the
representative or agent;
b. Authority to possess (for another) of
the representative or agent;
c. Intent to possess for principal; and
d. Principal has intent and capacity to
possess
3. Through a person without authority (but
only if subsequently ratified) acquisition of
possession through a person who is not
clothed with authority by the supposed
Requisites:
a. Intent to possess for another the
b.
and
c. Ratification by
NOTE: The ratification does not suppress the
consequences of negotiorum gestio. (Art. 2144)
The principal is deemed to have acquired
possession from the time the gestor had
voluntarily took the management of the affairs
of the former. (Pineda, 2009) If the stranger
(gestor) had possessed it in his own name, it is
he who had possession, and not the so-called
(Paras, 2008)
Acquisition of possession thru succession
One who succeeds by hereditary title shall not
suffer the consequences of the wrongful
possession of the decedent, if it is not shown
that he was aware of the flaws affecting it; but
the effects of possession in good faith shall not
benefit him except from the date of death of the
decedent. (NCC Art. 534)
Effects
If the father or decedent was in bad faith, it
does not necessarily mean that the son was also
in bad faith. The son is presumed to be in GOOD
FAITH. (Arriola v. De la Serna, G.R. No. L-5397,
December 17, 1909) However, since the father
was in BAD FAITH, the consequences of the
GOOD FAITH of the son should be counted only
death.
NOTE: If the father had been in GOOD FAITH,
the article is not applicable, for the son would
233
the father in GOOD FAITH is added to the
possession of the son in GOOD FAITH, and we
cannot say that the effects of possession in good
death. (Paras, 2008)
Acquisition of minors or incapacitated
persons
Minors or incapacitated persons may acquire
the possession of things; but they need the
assistance of their legal representatives for
them to be able to exercise the rights arising
from the possession. (NCC, Art. 535)
NOTE: Minors and incapacitated persons may
acquire property or rights by prescription,
either personally or thru their parents,
guardians, or legal representatives. (NCC, Art.
1107)
possession
Possession is allowed only in those matters
where they have capacity to act (as in the case
of physical seizure of res nullius or donation of
personal property simultaneously delivered to
them) and NOT possession where juridical acts
are imperative like the possession of land the
ownership of which he desires to test in court,
for in such a case, and in similar ones, the
intervention of the legal representatives or
guardians is needed. (Paras, 2008)
Acts which do not give rise to possession
(FATV)
1. Through Force or intimidation as long as
there is a possessor who objects thereto
(NCC, Art. 536); (2006 BAR)
2. Through Acts executed clandestinely and
without the knowledge of the possessor
which means that:
a. Acts are not public; and
b. Unknown to the owner or
possessor
3. Acts merely Tolerated by the owner or the
lawful possessor; and
4. Acts executed by Violence. (NCC, Art 537)
Through Force or intimidation as long as
there is a possessor who objects thereto.
(NCC, Art. 536)
NOTE: Impliedly, if at first there was objection
Property
but later on such objection ceases, the
possession begun by force or intimidation may
be acquired. (Paras, 2008)
Through acts executed clandestinely and
without the knowledge of the possessor
NOTE: Clandestine possession by itself is hidden
or disguised possession
Acts merely tolerated by the owner or the
lawful possessor.
from abandonment. If an owner abandons, as
when within the proper period for prescription,
he brings no action, the possession of another
will ripen into ownership. As a matter of fact,
silence or inaction is NEGLIGENCE, not
tolerance. But where a person occupies
tolerance), the occupier, no matter how long he
may remain, can never acquire ownership,
because he never had possession. Whether
there was permission, or there has been an
abandonment, is a question of fact. Of course, it
is possible that although there was permission
at first, the permission was subsequently
withdrawn, and abandonment has resulted. But
this must be proved by clear and convincing
evidence. (Paras, 2008)
How to recover possession
First, he should request the usurper to give up
the thing and if the latter refuses, the former
should invoke the aid of the proper and
competent court (that which has jurisdiction
over the subject matter and the parties).
(Repide v. Astuar, G.R. No. 505, April 8, 1902)
Otherwise, the owner can be made the
defendant in a forcible entry case with all its
repercussions. (Santiago v. Cruz, G.R. No. 6276.
March 21, 1911) (Paras, 2008)
Possession by Force or Violence
The force may be:
1. Actual or merely threatened;
2. Done by possessor himself or by his agent;
3. Done against the owner or against any
representative, such as a capataz; or
4. Done to oust possessor; or if occupied
his getting back the premises. (Paras, 2008)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Rule when two or more persons claim
possession over the same property
GR: Possession as a fact cannot be recognized at
the same time in two different personalities.
XPN:
1. Co-possessors (since here, there is no
conflict of interest, both of them acting as
co-owners, as in the case of property owned
or possessed in common).
2. Possession in different concepts or
different degrees (e.g. both owner and
tenant are possessors as a fact at the same
time; the first, in the concept of owner; the
second, in the concept of holder; other
examples: principal and agent; depositor
and depositary; owner and administrator).
(Paras, 2008)
Rules to follow in case there is a dispute of
possession of two or more persons
1. Present/actual possessor shall be
preferred;
2. If there are two possessors, the one longer
in possession; or
3. If the dates of possession are the same, the
one with a title.
4. If both claimants have titles, the competent
court will determine the rightful possessor,
and in the meantime, the thing shall be
placed in judicial deposit. (NCC, Art. 538)
Only the possession acquired and enjoyed in the
concept of owner can serve as a title for
acquiring dominion. (NCC, Art. 540)
NOTE: Art. 538 applies to preference of
POSSESSION (whether real or personal
property is involved). It also applies whether
the possession was longer or shorter than one
year. Art. 1544 applies to preference of
OWNERSHIP in case of DOUBLE SALE (Art.
1544) or a DOUBLE DONATION. (NCC, Art. 744)
(Paras, 2008)
EFFECTS OF POSSESSION
POSSESSOR IN GOOD FAITH
One is a possessor is in good faith when he is
not aware that there exists in his title or mode
of acquisition any flaw which invalidates it.
(NCC, Art. 526) (2008 BAR)
Requisites in order to be considered a
234
 Civil Law
possessor in good faith
1. Ostensible title or mode of acquisition;
2. Vice or defect in the title; and
3. Possessor is ignorant of the vice or defect
and must have an honest belief that the
thing belongs to him.
Cessation of possession in good faith
Possession in good faith ceases from the
moment defects in his title are made known to
the possessor by extraneous evidence or by suit
for recovery by the true owner.
This interruption of good faith may take place
1. At the date of summons; or
2. That of the answer if the date of summons
does not appear.
Effect of cessation of possession in good
faith
Possessor is now considered as a possessor in
bad faith and he may be required to pay rent or
vacate the property. In both cases he is required
to pay damages to the lawful owner or
possessor of the property.
Q: A Deed of Sale was executed between Jose
(seller) and Rosario (buyer). However, later
on, Jose could not continue the sale because
he sold the lot to Emma with whom he
executed a formal deed of sale. Informed
that the sale in favor of Emma was not
registered, Rosario registered her adverse
claim. Later, Emma registered her deed of
sale and a TCT was issued to her but with
possession of the lot.
a. Who has a better right to the land?
b. Is Emma entitled to the improvements she
introduced in the lot?
A:
a.. ROSARIO has a better right.
purchase of the land was made in good faith;
she was the only buyer at that time. Her good
faith did not cease after Jose told him of the
second sale to Emma. In order to protect her
right, Rosario registered her adverse claim. Said
recording is deemed to be in good faith and
Carbonell v. CA
G.R. No. L-29972, January 26, 1976)
b. NO. The possessor in bad faith has neither
235
the right of retention of useful improvements
nor the right to demand refund for useful
expenses. (Art. 546 & 547; Carbonell v. CA G.R.
No. L-29972, January 26, 1976)
Mistake upon a doubtful or difficult question
of law
Mistake upon a doubtful or difficult question of
law may be the basis of good faith provided that
such ignorance is not gross and therefore
inexcusable. (NCC, Art. 526) Ignorance of the
law may be based on an error of fact. (2008
BAR)
RIGHTS OF A POSSESSOR
Right to be respected in possession
Every possessor has a right to be respected in
his possession; and should he be disturbed
therein he shall be protected in or restored to
said possession by the means established by the
laws and the Rules of Court.
A possessor deprived of his possession through
forcible entry may within ten days from the
filing of the complaint present a motion to
secure from the competent court, in the action
for forcible entry, a writ of preliminary
mandatory injunction to restore him in his
possession. The court shall decide the motion
within thirty (30) days from the fi ling thereof.
(NCC, Art. 539)
Rights of a possessor
1. To be respected in his possession;
2. To be protected in said possession by legal
means;
3. To secure in an action for forcible entry the
proper writ to restore him in his
possession; and
4. To secure from a competent court in an
action for forcible entry the Writ of
preliminary mandatory injunction to
restore him in his possession. (NCC, Art.
539)
Possession contemplated by law is legal
possession thief cannot exercise possession.
Such possession is exercised by every
possessor in good faith or bad faith.
is protected under Art. 539,
whether in the concept of owner or in the
concept of holder.
Property
NOTE: An adverse possession of property by
another is not an encumbrance in law and does
not contradict the condition that the property
be free from encumbrance. Likewise, the
adverse possession is not a lien for a lien
signifies a security for a claim. (Ozaeta v.
Palanca, L-17455, August. 31, 1964)
Legal Means for Restoration of Possession
A. Reasons for requiring legal means:
1. To prevent spoliation or a disregard of
public order;
2. To prevent deprivation of property
without due process of law; and
3. To prevent a person from taking the
law into his own hand.
B. Thus:
1. The owner should go to court, and not
eject the unlawful possessor by force.
2. A tenant illegally forced out by the
owner- landlord may institute an action
for forcible entry even if he had not
been paying rent regularly.
3. The proper actions are forcible entry or
unlawful detainer (summary action or
accion interdictal), accion publiciana,
accion reivindicatoria; replevin;
injunction (to prevent further acts of
dispossession). However, injunction is
GENERALLY not the proper remedy to
recover possession, particularly when
there are conflicting claims of
ownership. An accion reivin-dicatoria
would be better. A final judgment in an
unlawful detainer case may be executed
even if there is still pending an accion
reivindicatoria, for the two actions can
co- exist. A mere trespasser, even if
ejected, has no right to institute an
action of forcible entry. (Paras, 2008)
4. Writ of preliminary mandatory
injunction.
Writ of preliminary mandatory injunction
As a rule, injunction cannot substitute for the
other actions to recover possession. This is
because in the meantime, the possessor has in
his favor, the presumption of rightful
possession, at least, until the case is finally
decided. The exception, of course, is a very clear
case of usurpation. Similarly, a receiver should
not ordinarily be appointed to deprive a party
who is in possession of the property in
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
litigation of such possession. (Paras, 2008)
Requisites for the issuance of the writ of
preliminary injunction:
1. In forcible entry cases (in the original
court) file within 10 days from the time
the complaint for forcible entry is filed (not
from the time the dispossession took place)
(NCC. Art. 538);
2. In ejectment (unlawful detainer cases) in
the CFI (RTC) or appellate court (Court of
Appeals) file within 10 days from the
time the appeal is perfected (that is, from
the time the attorneys are notified by the
Court of the perfection of the appeal), only
if:
a.
dilatory; or
b. prima facie
meritorious. (NCC, Art. 1674)
Q: During his lifetime, Velasco acquired Lot
A from spouses Sacluti and Obial evidenced
by a deed of sale. In 1987, spouses Padilla
entered the said property as trustees by
virtue of a deed of sale executed by the
Rural Bank. The Padillas averred that the
Solomon spouses owned the property which
was identified as Lot B. However, it was
proved during trial that the land occupied
by spouses Padilla was Lot A in the name of
Velasco, whereas the land sold by the bank
to the spouses Padilla was Lot B. The heirs of
Velasco demanded that spouses Padilla
vacate the property, but they refused. Thus,
the heirs filed a complaint for accion
publiciana.
a. Who has the better right of possession?
b. Has the action already prescribed?
A:
a. The HEIRS OF VELASCO have the better
right. Accion publiciana, recovery of the
right to possess, is an action filed in the RTC
to determine the better right to possession
of realty independently of the title. The
objective of the plaintiffs in accion
publiciana is to recover possession only, not
ownership. Lot A was the subject of a
cadastral case. The OCT was issued to
Sacluti and Obial who sold the same to
Artemio. From the date of sale, until
continuous
possession of the land.
236
 Civil Law
b. NO. The remedy of accion publiciana
prescribes after the lapse of ten years. The
action was filed with the RTC in 1991.
Spouses Padilla dispossessed the heirs of
Velasco of the property in 1987. At the time
of the filing of the complaint, only four
years had elapsed from the time of
dispossession. (Spouses Padilla v. Velasco,
G.R. No. 169956, January 19, 2009)
Acquisitive prescription
Only the possession acquired and enjoyed in
the concept of owner can serve as a title for
acquiring dominion. (NCC, Art. 540)
Possession in the concept of an owner
1. If a person possesses en concepto de dueño
he may eventually become the owner by
prescription; and
2. Thus, a possessor merely in the concept of
holder cannot acquire property by
acquisitive prescription. (This is because
here the possession, far from being adverse,
recognizes right of ownership in others.
One cannot recognize the right of another
and at the same time claim adverse
possession which can ripen to ownership
through acquisitive prescription. For
prescription to set in, the possession must
be adverse, public and to the exclusion of
all. (Paras, 2008)
Possession in the concept of a holder
1. Lessees or those merely permitted to
occupy;
2. Trustees (including parents over the
properties of their unemancipated minor
children or insane children (NCC, Art.
1109); and husband and wife over each
lasts, and even if there be a separation of
property which had been agreed upon in a
marriage settlement or by judicial decree
(NCC, Art. 1109);
3. Antichretic creditors;
4. Agents;
5.
properties)
6. Depositaries; and
7. Co-owners (unless the co-ownership is
clearly repudiated by unequivocal acts
communicated to the other co-owners).
237
Presumption that possessor has a just title
A possessor in the concept of owner has in his
favor the legal presumption that he possesses
with a just title and he cannot be obliged to
show or prove it. (Art. 541)
Requirements under NCC, Art. 541 to raise
the disputable presumption of ownership (of
a thing or a right)
1. One must be in possession (actual or
constructive)
2. The possession must be in the concept of
owner (not mere holder)
NOTE: A tenant cannot avail himself of the
presumption of just title because he is not a
possessor in the concept of owner). (Paras,
2008)
The Article can apply to both real and personal
property. Thus, if a person possesses the key to
a car over which he claims ownership, he can be
presumed to be the owner. But such
presumption may be overcome by documentary
(Paras, 2008)
Presumptions in favor of a possessor
(GCENCE)
1. Good faith;
2. Continuity of initial good faith;
3. Enjoyment in the same character in which
possession was acquired until the contrary
is proved;
4. Non-interruption in favor of the present
possessor;
5. Continuous possession by the one who
recovers possession of which he was
wrongfully deprived; and
6. Extension of possession of real property to
all movables contained therein.
KINDS OF TITLE
1. True and Valid Title
Here, there was a mode of transferring
ownership and the grantor was the
owner. It is defined as a title which by
itself is sufficient to transfer ownership
without the necessity of letting the
prescriptive period elapse.
Property
e.g. B bought a Ford Expedition Limited
from S, the owner thereof. Then S
delivered the car to B. B now has a true
and valid title.
2. Colorable Title
That title where, although there was a
mode of transferring ownership, still
something is wrong, because the grantor
is NOT the owner.
e.g. B bought a BMW car from S. S then
delivered the car to B. But it turns out that
S never owned the car, and that
somebody else was its owner. Whether B
was in good faith or in bad faith is
immaterial in deciding if he (B) is the
owner; what is important is that he is not
the owner because he did not acquire or
purchase the property from the owner,
colorable.
NOTE: It must be remembered that:
a. Ordinary prescription needs good faith
and just title, hence in the example
given, if B is in good faith, he may
become owner of the car by
prescription after four years (the car
being personal property)
b. Extraordinary prescription does not
need either good faith or just title,
hence in the example given, if B is in
bad faith, although there may be just
title (titulo colorado), B may get
ownership by prescription only after
eight years.
In case of real properties, the
prescriptive periods are 10 years and
30 years respectively for ordinary and
extraordinary prescription. (Paras,
2008)
3. Putative Title
That title where although a person
believes himself to be the owner, he
nonetheless is not, because there was no
mode of acquiring ownership.
Presumption of Possession of Movables
Found in an Immovable
The possession of real property presumes that
of the movables therein, as long as it is not
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
shown or proved that they should be excluded.
(NCC, Art. 542) (2008 BAR)
Applicability of the Article:
1. Whether the possessor be in good faith or
bad faith;
2. Whether the possession be in own
name or in and
3. Whether the possession be in concepto de
dueno or in the concept of holder. Thus, the
lessee of a building is presumed to be the
possessor of the movables found therein,
for he who needs them is supposed to have
been the one who introduced the movables
into the building.
NOTE
law means only real or personal THINGS, not
rights. (Paras, 2008)
Exclusive possession by a previous co-owner
Each one of the participants of a thing
possessed in common shall be deemed to have
exclusively possessed the part which may be
allotted to him upon the division thereof, for the
entire period during which the co-possession
lasted. Interruption in the possession of the
whole or a part of a thing possessed in common
shall be to the prejudice of all the possessors.
However, in case of civil interruption, the Rules
of Court shall apply. (NCC, Art. 543)
Example of interruption in possession of the
WHOLE thing (NCC, Art. 543)
A, B, and C have been co-possessors of a piece of
land since 2002. If in 2006, A, B, and C lose
possession over the whole land, it can be said
that the three of them were in possession for
only four years.
Example of Interruption in possession of
PART of the thing (NCC, Art. 543)
A and B have been co-possessors of a piece of
land since 2002 thru a mutual agent X. In 2006,
X lost possession of one-fifth of the land. and
possession over the remaining four-fifth
continues, the interruption being limited only to
one-fifth.
NOTE: If A and B had co-possessed the land in
equal shares, the co-possession of the
remaining four-fifths will also be in equal
shares. If A and B had co-possessed in the
238
 Civil Law
proportion of 3 to 1, their shares in the
remaining four-fifths would also be in the
proportion of 3 to 1. In other words, there is a
PROPORTIONATE losing in the area possessed.
(Paras, 2008)
Rules to apply for civil interruption
(NCC, Art. 543):
1. Civil interruption is produced by judicial
summons to the possessor (NCC, Art. 1123);
and
2. Judicial summons shall be deemed not to
have been issued, and shall not give rise to
interruption:
a. If it should be void for lack of legal
solemnities;
b. If the plaintiff should desist from the
complaint or should allow the
proceedings to lapse; or
c. If the possessor should be absolved
from the complaint. In all these cases,
the period of the interruption shall be
counted FOR the prescription. (NCC,
Art. 1124)
RIGHTS OF POSSESSOR TO FRUITS
Possessor in good faith is entitled to the fruits
received before the possession is legally
interrupted.
Natural and industrial fruits are considered
received from the time they are gathered or
severed.
Civil fruits are deemed to accrue daily and
belong to the possessor in good faith in that
proportion. (NCC, Art. 544)
Right of a possessor in good faith to fruits
already received
First Paragraph: good faith is
entitled to the fruits received before the
a. Reason for the law: Justice demands that the
fruits be retained by the possessor who
thought that he was really the owner of the
property, and who, because of such thought
had regulated his daily life, income, and
expenses by virtue of such fruits. Moreover,
the possessor should be rewarded for
239
having contributed to the INDUSTRIAL
WEALTH, unlike the owner, who by his
presumed negligence, had virtually
discarded his property.
b. Fruits refer to natural, industrial, and civil
fruits, not to other things. (If no actual fruits
are produced, reasonable rents civil
fruits must be given)
c. Legal interruption happens when a
complaint is filed against him and he
receives the proper judicial summons. (Art.
1123) All fruits accrued and received since
said date must be turned over to the
winner, that is, either the owner or the
lawful possessor adjudged as such by the
court. Before legal interruption, the fruits
received are his own. After the receipt of
the judicial summons, the right to get the
fruits not yet gathered ceases.
d. The reason why fruits should be returned
from the TIME of legal interruption is that it
is ordinarily only from said date that the
possessor should be considered in BAD
FAITH. Therefore, should there be proof
that BAD FAITH had not set in even BEFORE
legal interruption, fruits should be returned
from that date of CONVERSION are not
entitled to the fruits. As a matter of fact, the
law
faith shall reimburse the fruits received and
those which the legitimate possessor (or
owner) Art. 549)
This is true whether the possession in BAD
faith was legally interrupted or not. It is
understood of course that he is entitled to
the fruits received BEFORE the conversion
into BAD FAITH, for then, he would still be
in good faith. (Paras, 2008)
When natural and industrial fruits are
considered received
Second Paragraph: industrial
fruits are considered received from the time
a. If at the time of legal interruption, the crops
are still growing, the rule on pending crops,
not that on gathered crops, should apply.
(NCC, Art. 545)
b. If at the time of legal interruption, the crops
have already been gathered, but are sold
only after such interruption, the sale is
Property
immaterial, for the law requires only a
gathering or severance, so Art. 544 applies.
When civil fruits are deemed to accrue
Third Paragraph: deemed to
accrue daily and belong to the possessor in good
faith in that proportion
a. If civil fruits (like rents) are accrued daily,
Art. 545 does not apply; and
b. Actual receipt of the rents is immaterial;
hence, even if received only, for example,
on the 30th of a month, all rents accrued
before the 21st of the month (date for
example of legal interruption) should
belong to the possessor in good faith.
RIGHT TO PENDING FRUITS
If at the time the good faith ceases, there should
be any natural or industrial fruits, the possessor
shall have a right to a part of the expenses of
cultivation, and to a part of the net harvest, both
in proportion to the time of the possession.
The charges shall be divided on the same basis
by the two possessors.
The owner of the thing may, should he so
desires, give the possessor in good faith the
right to finish the cultivation and gathering of
the growing fruits, as an indemnity for his part
of the expenses of cultivation and the net
proceeds; the possessor in good faith who for
any reason whatever should refuse to accept
this concession, shall lose the right to be
indemnified in any other manner. (NCC, Art.
545)
NOTE: This article applies to PENDING fruits,
natural or industrial.
Q: What if there are natural or industrial
fruits at the time good faith ceases?
A: The possessor shall have the right to a part of
the expenses of cultivation, and to a part in the
net harvest both in proportion to the time of
possession. (NCC, Art 545) (2000, 2008 Bar)
Q: A possessed in good faith a parcel of land.
At the time he received judicial summons to
answer a complaint filed by B, the crops still
growing had been there for two months.
Harvest was made only after 4 more months
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
(For his crop needed a total of 6 months
from planting to harvesting). How should
said crops be divided between A and B?
A: In the proportion of 2 to 4 (or 1 to 2), 2 for A
and 4 for B. This is what the law means when it
says that the net harvest shall be divided in
proportion to the time of possession. (Paras,
2008)
Sharing of expenses and charges
1. The expenses for cultivation shall also be
divided pro rata (2 to 4) The law says
possessor shall have a RIGHT to a part of
the expenses for cultivation in proportion to
the time of possession (This may in certain
cases be UNFAIR because although he may
have spent MORE than the owner, still he
will be entitled to a reimbursement of LESS
since his possession is shorter. The better
rule would be for the expenses to be borne
in proportion to what each receives from
the harvest) (NCC, Art. 443) Otherwise,
unjust enrichment would result.
2. The charges (those incurred because of the
land and the fruits, like TAXES, or
INTEREST on MORTGAGES are what are
referred to as CHARGES, and not those
incurred on or in them, such as
improvements) are also to be divided in
proportion to the time of possession. (NCC,
Art. 545, 2nd par.) (Paras, 2008)
Options of the owner in case there are
pending fruits at the time good faith ceases
1. To pay the possessor in good faith
indemnity for his cultivation expenses and
charges and his share in the net harvest; or
2. To allow the possessor in good faith to
FINISH the cultivation and gathering of the
growing crops, as an INDEMNITY for his
part of the expenses of cultivation and the
net proceeds. (Paras, 2008)
NOTE: If the possessor refuses, for any reason,
to finish the cultivation and gathering, he
forfeits the right to be indemnified in any other
manner. [NCC, Art. 545(3)]
Art. 545 applies only to a possessor in GOOD
faith for a possessor in bad faith has no right
whatsoever to fruits already gathered nor to
fruits still pending, except that in the former
case (gathered fruits), he gets back the
240
 Civil Law
necessary expenses for production, gathering,
and preservation of fruits. (Art. 443) In the case
of pending fruits, the principle of accession
applies, and the law clearly states that he who
plants or sows in BAD FAITH on the land of
another, loses whatever is planted or sown
without right to indemnity. (Paras, 2008)
Crops not yet manifest
Art. 545 applies to pending crops. Suppose the
crops have already been planted but are not yet
manifest at the time there is a transfer of
possession, should the article also apply? It is
submitted that the answer is YES, by the
application of the general rules stated in Art.
443. (Paras, 2008)
RIGHT TO BE REIMBURSED
NECESSARY AND USEFUL EXPENSES
Necessary expenses shall be refunded to every
possessor; but only the possessor in good faith
may retain the thing until he has been
reimbursed therefor. Useful expenses shall be
refunded only to the possessor in good faith
with the same right of retention, the person
who has defeated him in the possession having
the option of refunding the amount of the
expenses or of paying the increase in value
which the thing may have acquired by reason
thereof. (NCC, Art. 546)
Necessary expenses (1992, 1996, 2000 BAR)
Necessary expenses are expenses incurred to
preserve the property, without which, said
property will physically deteriorate or be lost.
These expenses are not improvements but are
incurred merely to protect the thing from
becoming useless.
Sample of necessary expenses
1. Those incurred for cultivation, production,
and upkeep; or
2. Those made for necessary repairs of a
house.
Ordinary repairs are understood such as are
required by the wear and tear due to the
natural use of the thing and are indispensable
for its preservation. (NCC, Art. 592) They do not
prevent the things from becoming useless.
241
Urgent repairs reparacion urgentisima
are also necessary expenses.
The following are NOT Necessary Expenses
1. Those incurred for the filling up with soil of
a vacant or deep lot (This is not also a
putting back into the condition in which it
was originally, and not an improvement in
the condition thereof by adding something
new thereto. The expenses are indeed in
the nature of USEFUL improvements;
2. A house constructed on land possessed by a
stranger (not the owner), because the
house cannot be said to preserve the land
(the house is USEFUL);
3. Land taxes are, for the purposes of the
Article, not necessary expenses, for they are
needed, not for preservation of the land
itself; but for its continued possession.
Failure to pay said taxes results not in
destruction, but forfeiture, therefore they
should be merely considered CHARGES.
Consequently, Art. 545 regarding PRO
RATING of charges should apply; and
4. Unnecessary improvements on a parcel of
made just to prevent redemption from
taking place. (Paras, 2008)
Rights of a possessor (in the concept of
owner) as to the necessary expenses
1. If in good faith entitled to:
a. Refund; or
b. Retain premises until paid.
2. If in bad faith entitled ONLY to a refund
(no right of RETENTION, as penalty)
NOTE: If the owner sues the possessor for the
recovery of the property, the possessor in good
faith (who is thus entitled to a refund) must file
a counterclaim for the refund of necessary and
useful expenses, otherwise the judgment in the
case for possession will be a BAR to a
subsequent suit brought solely for the recovery
of such expenses. The purpose is clearly to
avoid the multiplicity of suits. (Paras, 2008)
Right of removal of necessary expenses
Property
There is NO right of removal of necessary
expenses whether in good faith or bad faith.
Necessary expenses affect the existence or
substance of the property itself.
NOTE: Improvements are so incorporated to
the principal thing that their separation must
necessarily reduce the value of the thing not
curable by ordinary repairs.
Useful expenses
Those which increase the value or productivity
of the property.
Examples of useful expenses
1. Those incurred for an irrigation system;
2. Those incurred for the erection of a chapel,
because aside from its possibility of
conversion into such materialistic things as
a warehouse or a residence, the chapel
satisfied spiritual and religious aspirations
would be to reduce life to a mere
conglomeration of desires and lust, when,
as a matter of fact, life is also a beautiful
aggregate of noble impulses and lofty
3. Those incurred for the making of artificial
fishponds;
4. Those incurred for the construction of
additional rooms in a house, for use as
kitchen, bathroom, stable, etc;
5. Those incurred for clearing up land
formerly thickly covered with trees and
shrubbery. (Paras, 2008)
Rights of a possessor (in the concept of
owner) as to the USEFUL expenses
A. If in GOOD faith.
1. Right to REIMBURSEMENT (of either
the amount spent or the increase in
value
OPTION) (NCC, Art. 546)
2. Right of RETENTION (until paid) (NCC,
Art. 546)
3. Right of REMOVAL (provided no
substantial damage or injury is caused
to the principal, reducing its VALUE)
UNLESS the winner (owner or
lawful possessor) exercises the option
in (1) (NCC, Art. 547)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
NOTE: The possessor in good faith is
entitled to both the fruits and expenses
(necessary or useful), hence they do not
compensate each other.
B. If in BAD faith.
The possessor in BAD faith is NOT
ENTITLED to any right regarding the useful
expenses [BUT IN Angeles v. Guevara, L-
15697, October. 31, 1960, where the
Supreme Court thru Justice Gutierrez David
made the statement that although a
possessor in bad faith is NOT entitled to
reimbursements for expenses incurred, he
may nevertheless REMOVE the objects
(repairs on buildings) provided the things
suffer NO INJURY thereby, and that the
lawful possessor does not prefer to retain
them by paying the value they may have at
the time he enters into possession.
Evidently, here, the Court was thinking NOT
of useful improvement, but of expenses for
PURE LUXURY or MERE PLEASURE. (NCC,
Art. 549)
Effect of voluntary surrender of property
The voluntary surrender of property is a waiver
right to be refunded may still be enforced.
XPN: He also waived the same.
Removal of useful improvements introduced
by the possessor
Only a possessor in good faith is allowed to
remove the useful improvements he introduced
provided that the useful improvements can be
removed without damage to the principal thing.
(NCC, Art. 547)
here means a substantial one that
reduces the value of the property, thus a slight
injury curable by an ordinary repair does not
defeat the right of removal, but the repairs
should be chargeable to the possessor, for it is
he who benefits by the removal and the object
removed. (Paras, 2008)
NOTE: This right of removal is subordinate to
himself by paying the expenses incurred or the
concomitant increase in the value of the
property caused by the improvements.
242
 Civil Law Property
EXPENSES FOR PURE LUXURY to the possessor in bad faith; but he may shall be borne by every possessor. (NCC, Art. GOOD FAITH BAD FAITH
remove the objects for which such expenses refers to one in good As to fruits received
Expenses for pure luxury or mere pleasure shall have been incurred, provided that the thing faith or bad faith, in the concept of owner or in Entitled to the fruits Shall reimburse the
not be refunded to the possessor in good faith; suffers no injury thereby, and that the lawful own name or in received before the fruits received and
but he may remove the ornaments with which possessor does not prefer to retain them by that of another, and not to the owner or the possession is legally those which the
he has embellished the principal thing if it paying the value they may have at the time he person adjudged by the court to be lawfully interrupted. (NCC, Art. legitimate possessor
suffers no injury thereby, and if his successor in enters into possession. (NCC, Art. 549) entitled to possess. (Paras, 2008) 544) could have received
the possession does not prefer to refund the and shall have the a
amount expended. (NCC, Art. 548) Q: Who is a possessor in bad faith? Improvements caused by nature or time right only to necessary
expenses (Art. 546,
Luxurious expenses or expenses for pure luxury A: A possessor in bad faith is one who is aware Neither the possessor in good faith nor in bad par. 1) and expenses in
or mere pleasure (ornamental expenses) are that there exists in his title or mode of faith is entitled to: the production,
expenses incurred for improvements acquisition any flaw which invalidates it. Only gathering and
introduced for pure luxury or mere pleasure. personal knowledge or 1. Improvements caused by NATURE (like preservation of such
mode of acquisition can make him a possessor alluvium, etc.) Fruits. (NCC, Art. 443)
Examples of ornamental expenses in bad faith. 2. Improvements caused by TIME (like the As to pending fruits
a. Hand paintings on the wall of a house; improved flavor of wine) Liable with legitimate None
b. A garage made of platinum; and NOTE: No tacking of bad faith, unless the possessor for expenses
c. Water fountains in gardens. successors in interest had learned of the defect Liability for loss or deterioration of cultivation and shall
in the title and still purchased it. share in the net
Rights of a Possessor (in the Concept of A possessor in good faith shall not be liable for harvest in proportion
Owner) as to Luxurious or Ornamental Bad faith is not transmissible from a person to the deterioration or loss of the thing possessed, to the time of their
Expenses another, even an heir is not affected by bad faith except in cases in which it is proved that he has Possession. (NCC, Art.
of the deceased predecessor. acted with fraudulent intent or negligence, after 545)
1. If in GOOD faith: the judicial summons. As to expenses
Right of the Possessor (in the Concept of A possessor in bad faith shall be liable for (Necessary expenses)
In general, no right of refund or retention Owner) as to FRUITS deterioration or loss in every case, even if Right of Right of
but can remove if no substantial injury is caused by a fortuitous event. (NCC, Art. 552) reimbursement and reimbursement only.
caused. However, owner has OPTION to 1. If in GOOD faith: retention.
allow: Rules applicable: (Useful expenses)
a. Possessor to remove; or a. Gathered or severed or harvested fruits
Right of None
b. Retain for himself (the owner) the are his own (NCC, Art. 544); A. Possessor in GOOD FAITH
reimbursement,
ornament by REFUNDING the AMOUNT b. Pending or ungathered fruits (pro-
retention and limited
SPENT. (NCC, Art. 548) rating between possessor and owner of 1. BEFORE receipt of judicial summons right of removal.
expenses, net harvest, and charges) (NCC, NOT LIABLE.
(Ornamental Expenses)
2. In BAD faith: Art. 545) 2. AFTER judicial summons
Shall not be refunded Shall not be refunded
i. Loss or deterioration thru
but he has a limited but he has a limited
In general, no right of refund or retention 2. If in BAD faith: fortuitous event not liable.
right of removal, i.e. he right of removal, i.e. he
but can remove if no substantial injury is ii. Thru fraudulent intent
may remove if the may remove if the
caused. However, owner has OPTION to a. Gathered fruits must return value of or negligence liable
principal thing suffers principal thing suffers
allow: fruits already received as well as value of
no injury thereby, and no injury thereby, and
a. Possessor to remove; or fruits which the owner or legitimate B. Possessor in BAD FAITH
if the lawful possessor if the lawful possessor
b. Retain for himself (the owner) the possessor (not the possessor in bad faith) Whether before or after judicial summons,
does not prefer to does not prefer to
ornament by REFUNDING the VALUE it could HAVE received with due care or and whether due to fortuitous event or not,
refund the amount retain them by paying
has at the TIME owner ENTERS INTO diligence, MINUS necessary expenses such possessor is LIABLE.
expended. its value at the time he
POSSESSION. (NCC, Art. 549) for cultivation, gathering, and
enters into possession.
harvesting, to prevent the owner from Requisites to constitute possession whether
As to liability in case of deterioration or loss
POSSESSOR IN BAD FAITH being unjustly enriched. (NCC, Arts. 549 in good faith or bad faith
and 443) No liability Always liable.
b. Pending or ungathered fruits no rights 1. Possessor has a title/mode of acquisition; XPN: If due to his
The possessor in bad faith shall reimburse the fraudulent act or
at all, not even to expenses for 2. There is a flaw or defect in said title/mode;
fruits received and those which the legitimate negligence, or after
cultivation because by accession, all and
possessor could have received, and shall have a service of summons.
should belong to the owner, without 3. The possessor is aware or unaware of the
right only to the expenses mentioned in
indemnity. (NCC, Art. 449) flaw or defect.
paragraph 1 of Art. 546 and in Art. 443. The Possessor in good faith has the right of
expenses incurred in improvements for pure retention until he has been fully reimbursed
NOTE: The costs of litigation over the property Summary of rights of a possessor
luxury or mere pleasure shall not be refunded

243 UNIVERSITY OF SANTO TOMAS 244

2021 GOLDEN NOTES
 Civil Law
A possessor in good faith has the right of
retention of the property until he has been fully
reimbursed for all the necessary and useful
expenses made by him on the property. Its
object is to guarantee the reimbursement for
the expenses, such as those for the preservation
of the property, or for the enhancement of its
utility or productivity. It permits the actual
possessor to remain in possession while he has
not been reimbursed by the person who
defeated him in the possession for those
necessary expenses and useful improvements
made by him on the thing possessed. (Ortiz v.
Kayanan, G.R. No. L-32974, July 30, 1979)
Presumption of Possession during the
intervening period
A present possessor who shows his possession
at some previous time is presumed to have held
possession also during the intermediate period,
in the absence of proof to the contrary. (NCC,
Art 554)
LOSS/TERMINATION OF POSSESSION
Possession is lost through (PRADA)
1. Possession of another;
2. Recovery of the thing by the legitimate
owner;
3. Abandonment;
4. Destruction or total loss of the thing a
thing is lost when it perishes or goes out of
commerce, or disappears in such a way that
its existence is unknown, or it cannot be
recovered (NCC, Art. 1189; Art. 555); or
5. Assignment complete transmission of the
thing/right to another by any lawful
manner. (NCC, Art. 555)
Possession of another
Possession of another subject to the provisions
of Art. 537, if a person is not in possession for
more than one year but less than 10 years he
losses possession de facto. He can no longer
bring an action of forcible entry or unlawful
detainer, since the prescriptive period is one
year for such actions. But he may still institute
an accion publiciana to recover possession de
jure, possession as a legal right or the real right
of possession. (NCC, Art. 555; Paras, 2008)
If a person loses possession for more than 10
years, he loses possession de jure, or the real
245
right of possession. (NCC, Art. 555) An accion
publiciana or reivindicatoria is still possible
unless prescription, either ordinary or
extraordinary, has set in. (Paras, 2008)
NOTE: Acts merely tolerated, and those
executed clandestinely and without the
knowledge of the possessor of a thing, or by
violence, do not affect possession. (NCC, Art.
537) (2001, 2009 Bar)
Abandonment
Abandonment involves a voluntary
renunciation of all rights over a thing. There
must be an intention to lose the thing.
Requisites:
1. The abandoner must have been a possessor
in the concept of owner (either an owner or
mere possessor may respectively abandon
either ownership or possession);
2. The abandoner must have the capacity to
renounce or to alienate (for abandonment
is the repudiation of property right);
3. There must be physical relinquishment of
the thing or object; and
4. There must be no spes recuperandi
(expectation to recover) and no more
animus revertendi (intention to return or
get back). (Paras, 2008)
Additional Doctrines
1. A property owner cannot be held to have
abandoned the same until at least he has
some knowledge of the loss of its
possession or the thing.
2. There is no real intention to abandon
property when as in the case of a
shipwreck or a fire, things are thrown into
the sea or upon the highway.
3. An owner may abandon possession merely,
leaving ownership in force, but a mere
possessor cannot abandon ownership
since he never had the same.
4. If an owner has not lost possession
because there has been no abandonment, it
surely cannot be acquired by another thru
acquisitive prescription. Thus, the mere
fact that land is covered by the sea
completely during high tide for failure in
the meantime of the owner to dam the
water off, does not indicate an
abandonment of the land in favor of public
Property
dominion. Moreover, abandonment can
hardly refer to land much less to registered
land.
5. There is no abandonment if an owner
merely tolerated (permitted) another
possession, nor if the latter was done by
stealth or effected thru force and
intimidation. (NCC, Articles 537 and 558)
6. There is no abandonment of movables
even if there is temporary ignorance of
their whereabouts, so long as they remain
under the control of the possessor (that is,
so long as another has not obtained control
of them). (NCC, Art. 556)
7. In true abandonment, both possession de
facto and de jure are lost.
8. Abandonment which converts the thing
into res nullius (ownership of which may
ordinarily be obtained by occupation), does
not apply to land (NCC, Art. 714, Civil Code)
much less does abandonment apply to
registered land. (Act, 496, Sec. 46) (Paras,
2008)
Assignment
Refers to a total transfer of ownership of
property by the owner to another person either
gratuitously or onerously.
While in assignment, at no time did the thing not
have a possessor (for possession merely
changed hands or control); in abandonment,
there was a time, no matter how short, when
the object did not have any possessor at all.
Moreover, while assignment may in some cases
be by onerous title, abandonment is always
gratuitous, otherwise it becomes a virtual
assignment. Moreover, in assignment, both
possession de facto and de jure are lost, and no
action will allow recovery. (Paras, 2008)
Q: Does Art. 555 refer to both real and
personal property?
A: YES (for the law does not distinguish) except
in the case of paragraph 4, for it is evident that
the reference to possession of more than one
year concerns only real property, the rule as to
movable property being explicitly stated in Art.
556.
LOSS OR UNLAWFUL DEPRAVATION OF A
MOVABLE
A lost thing is one previously under the lawful
possession and control of a person but is now
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
without any possessor.
When possession of movables is lost or not
lost
If the possessor has no idea at all about the
whereabouts of the movable, possession is lost,
but not when he more or less knows its general
location, though he may not know its precise or
definite location. In the former, he has lost
juridical control; in the latter, the object
remains within his patrimony (not in the
patrimony of another). (Paras, 2008)
NOTE: An abandoned property is not
considered as a lost thing. (Pineda, 1999)
Loss of immovables with respect to third
person
The possession of immovables and of real rights
is not deemed lost, or transferred for purposes
of prescription to the prejudice of third
persons, except in accordance with the
provisions of the Mortgage Law and the Land
Registration Laws. (NCC, Art. 557)
NOTE: Art. 557 refers to possession of real
property, and other real rights over real
property (like easement or usufruct)
Acts of mere holder
GR: Acts relating to possession, executed or
agreed to by one who possesses a thing
belonging to another as a mere holder to enjoy
or keep it, in any character, do not bind or
prejudice the owner.
XPNS:
1. Unless he gave said holder express
authority to do such acts; or
2. Ratifies them subsequently. (NCC, Art. 558)
FINDER OF LOST MOVABLE
Rule regarding the right of a possessor who
acquires a movable claimed by another
If the possessor is in:
1. Bad faith He has no right.
2. Good faith He has presumed ownership. It
is equivalent to title.
Requisites:
a. Owner has voluntarily parted with the
246
 Civil Law
possession of the thing; and
b. Subsequent possessor is in the concept of
an owner.
c. Possession in good faith;
Possession of movable property acquired in
good faith
GR: Doctrine of irrevindicability The
possession of movable property acquired in
good faith is equivalent to title and the true
owner cannot recover such movable.
NOTE: This is merely presumptive as it can be
defeated by the true owner. (NCC, Art. 559)
XPNs:
1. When the owner has lost a movable; or
2. Has been unlawfully deprived of a movable.
In which case the possessor cannot retain the
thing as against the owner, who may recover it
without paying any indemnity
XPN to the XPNs: Where the movable is
acquired in good faith at a public sale, the
owner must reimburse to recover. [NCC, Art.
559(2)]
Duty of a finder of a lost movable (NCC, Art.
719)
Whoever finds a lost movable, which is not a
treasure, must return it to its previous
possessor. If the latter is unknown, the finder
shall immediately deposit it with the mayor of
the city or municipality where the finding has
taken place. The mayor in turn must publicly
announce the finding of the property for two
consecutive weeks.
Authorized public auction of lost movable
If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be sold
at public auction eight days after the
publication.
Awarding of the lost movable to the finder
If the owner or previous possessor did not
appear after 6 months from the publication, the
thing found or its value or proceeds if there was
a sale, shall be awarded to the finder. The
finder, however, shall pay for the expenses
247
incurred for the publication. (NCC, Art. 719)
Duty of the owner who appeared
1. Give a reward to the finder equivalent to
one-tenth (1/10) of the sum or of the price
of the thing found (NCC, Art. 720);
2.
expenses incurred for the preservation of
the thing (NCC, Art. 546) and expenses
spent for the location of the owner; and
3. Reimburse the expenses for publication if
there was a public auction sale. (Pineda,
1999)
Summary of recovery or non-recovery
principle
A. Owner MAY RECOVER WITHOUT
REIMBURSEMENT:
1. From possessor in bad faith; or
2. From possessor in good faith (if owner
had LOST the property or been
unlawfully deprived of it) (the
acquisition being from a private
person). (NCC, Art. 559)
B. Owner MAY RECOVER but should
REIMBURSE:
If possessor acquired the object in good faith
at a PUBLIC SALE or AUCTION. (NCC, Art.
559) Because the publicity attendant to a
public sale should have been sufficient
warning for the owner to come forward and
claim the property.
C. Owner CANNOT RECOVER, even if he
offers to REIMBURSE (whether or not the
owner had lost or been unlawfully deprived):
1. If possessor had acquired it in good faith
by purchase from a or
in fairs, or markets in accordance with
the Code of Commerce and special laws
(NCC, Art. 1505 and Code of Commerce,
Art. 85 and Art. 86);
2. precluded
from
s (NCC, Art. 1505); and
3. If possessor had obtained the goods
because he was an innocent purchaser
for value and holder of a NEGOTIABLE
document of title to the goods. (NCC, Art.
1518) (Paras, 2008)
Property
Q: Suppose a recently stolen property is
found in possession of A, is A presumed to be
the thief?
A: YES,
person found in possession of a thing taken in
the doing of a recent wrongful act is the taker
(Rules of Court, Rule
131, Sec. 3[j]) It is true that one who possesses a
movable, acquired in good faith, has what is
called an equivalent of title, but this is
destroyed when it is proved that said movable
belongs to somebody else who has lost it, or has
been unlawfully deprived of its possession.
(NCC, Art. 559) (Paras, 2008)
Q: In order to contest the title of the
possessor in good faith, what should the
true owner do?
A: The true owner should present sufficient
proof of the identity of the object AND that he
had either lost it or has been illegally deprived
of it. This proof is an indispensable requisite a
conditio sine qua non in order that the owner of
the chattel may contest the apparent title of its
possessor. Without adequate proof of such loss
or illegal deprivation, the present holder cannot
be put on his defense, even if as possessor he
has no actual proprietary title to the movable
property in question. (Paras, 2008)
Rule when possessor has already become
the owner
Art. 559 in fact assumes that the possessor is as
yet not the owner, for it is obvious that where
the possessor has come to acquire indefeasible
title, let us say adverse possession for the
necessary period, no proof of loss, or illegal
deprivation could avail the former owner of the
chattel. He would no longer be entitled to
recover it under any condition. (Paras, 2008)
Estafa is considered as unlawful deprivation
Q: Using a falsified manager's check, Justine,
as the buyer, was able to take delivery of a
secondhand car which she had just bought
from United Car Sales Inc. The sale was
registered with the Land Transportation
Office. A week later, the seller learned that
the check had been dishonored, but by that
time, Justine was nowhere to be seen. It
turned out that Justine had sold the car to
Jerico, the present possessor who knew
nothing about the falsified check. In a suit by
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
United Car Sales, Inc. against Jerico for
recovery of the car, plaintiff alleges it had
been unlawfully deprived of its property
through fraud and should, consequently, be
allowed to recover it without having to
reimburse the defendant for the price the
latter had paid. Should the suit prosper?
(1998 BAR)
A: The suit should prosper because the criminal
act of estafa should be deemed to come within
the meaning of unlawful deprivation under Art.
559 as without it, United Car Sales would not
have parted with the possession of its car. Thus,
it was allowed to recover the property without
having to reimburse the defendant.
Possession of wild animals
Wild animals are possessed only while they are
animals are considered domestic or tame, if
they retain the habit of returning to the
premises of the possessor. (NCC, Art. 560)
Lawful recovery of possession that had been
unjustly lost
One who recovers, according to law, possession
unjustly lost, shall be deemed for all purposes
which may redound to his benefit, to have
enjoyed it without interruption. (NCC, Art. 561)
Requisites:
1. Possession was lost unlawfully or unjustly;
2. Possessor lawfully recovers possession; and
3. Uninterrupted possession is beneficial to
him.
USUFRUCT
Usufruct is the right of a person called
usufructuary, to enjoy the property of another
called the owner, with the obligation of
returning it at the designated time and
preserving its form and substance, unless the
title constituting it or the law provides
otherwise. (Pineda, 2009)
NOTE: A usufruct can be constituted in favor of
a town, corporation or association, but it cannot
be for more than 50 years. (NCC, Art. 605)
Characteristics of usufruct (ENA)
1. Essential Those without which it cannot
248
 Civil Law Property
be termed as usufruct: 3. As to the extent of object: giving the usufruct.
a. Total constituted on the whole 2. In case of deficiency, the provisions on Civil
a. Real right (whether registered in the property remains unimpaired despite such thing Code. (NCC, Art. 565)
registry of property or not); encumbrance. Only the jus utendi and jus b. Partial constituted only on a part.
b. Constituted on property fruendi over the property are transferred to the Usufruct vs. Lease
i. Real; usufructuary. The owner of the property 4. As to the subject matter:
ii. Personal; maintains the jus disponendi or the power to a. Over things
iii. Consumable; alienate, encumber, transform, and even i. Normal (or perfect or regular) BASIS USUFRUCT LEASE
iv. Non-consumable; destroy the same. (Hemedes v. CA, G.R. Nos. involves non-consumable things
v. Tangible; 107132 & 108472, October 8, 1999) where the form and substance Real right only
vi. Intangible. are preserved; or if, as in the
c. Temporary duration; KINDS OF USUFRUCT ii. Abnormal (or imperfect or case of a lease
d. Purpose: to enjoy the benefits and irregular) Involves consumable over real
derive all advantages from the object 1. As to origin: things that which involves property, the
as a consequence of normal use or a. Legal Created by law such as things which would be useless to Nature of Always a real lease is
exploitation. usufruct of the parents over the the usufructuary unless they are the right right. registered, or
property of their unemancipated consumed or expanded. is for more
2. Natural That which ordinarily is present, children; b. Over rights involves intangible than one year,
but a contrary stipulation can eliminate it NOTE: The right of the parents over property; rights must not be otherwise it is
because it is not essential; personal or intransmissible in a personal
property shall be limited primarily to character so present or future right.
a. The obligation of conserving or support cannot be an object of May not be the
preserving the form and substance the collective daily needs of the family. usufruct. owner, as in
(value) of the thing.; and (FC, Art. 226) Creator of Owner or his the case of a
b. It is transmissible. b. Voluntary Created by will of the 5. As to the effectivity or extinguishment: Right agent. sub- lessor or
parties either by act inter vivos (e.g. a. Pure no term or condition a
3. Accidental Those which may be present or donation) or by act mortis causa (e.g. b. With a term there is a period which usufructuary.
absent depending upon the stipulation of in a last will and testament); may be either suspensive or resolutory By contract, by
parties. c. Mixed Created by both law and act of i. Ex die from a certain day way of
the person (e.g. acquired by ii. In diem up to a certain day exception by
a. Whether it be pure or a conditional prescription: I possessed in good faith iii. Ex die in diem from a certain day law (as in the
usufruct; a parcel of land which really belonged up to a certain day. case of an
b. The number of years it will exist; to another. Still in good faith, I gave in c. Conditional subject to a condition implied new
c. Whether it is in favor of one person or my will to X, the naked ownership of which may be either suspensive or lease under
several, etc. land and to Y, the usufruct. In due resolutory. By law, Art. 1670), or
time, Y may acquire the ownership of contract, will when a builder
Obligation to preserve the form and the usufruct by acquisitive GR: No form is required in constituting a Origin of testator or has built in
substance of the thing in usufruct prescription) (Paras, 2008); usufruct. Even an oral usufruct may be by good faith on
d. Prescriptive acquired by third constituted. prescription. the land of
GR: The usufructuary is bound to preserve the persons through continuous use of the another a
form and substance of the thing in usufruct. usufruct for the period required by XPNs: building, when
This is to prevent extraordinary exploitation, law. 1. Usufruct over real property must be the land is
prevent abuse of property and prevent registered to bind third person considerably
impairment. 2. As to the number of beneficiaries 2. Statute of Frauds apply in case Real worth more in
a. Simple If only one usufructuary Property is involved. If Personal value than the
XPN: In case of an abnormal usufruct, whereby enjoys the usufruct; property, Statute of Frauds will apply building.
the law or the will of the parties may allow the b. Multiple If several usufructuaries where the value is P 500 or higher and Only those
modification of the substance of the thing. in case the agreement is not to be Extent of All fruits, uses
enjoy the usufruct; particular or
performed in one year; Enjoyment and benefits.
i. Simultaneous at the same time specific use.
Q: Chayong owned a parcel of land which she ii. Successive one after the other 3. A usufruct by donation or by will must A passive
mortgaged to Michael. Upon the OCT was an NOTE: In case usufructuary is created by comply with formalities of a donation owner who
annotation of usufructuary rights in favor of or will An active
donation, apply Art. 756. If the usufruct is allows the
Cheddy. Is Michael obliged to investigate owner who
testamentary, apply Rules on Fidei Cause usufructuary
Rules governing usufruct makes the
Commisary substitution under Art. 863 and to enjoy the
lessee enjoy
869. object of
A: NO. The annotation is not sufficient cause to 1. The agreement of the parties or the title usufruct

249 UNIVERSITY OF SANTO TOMAS 250

2021 GOLDEN NOTES
 Civil Law Property
Usufructuary usufructuary may lease the thing to b. Not bound to refund to the Limitations to Usufructuary Rights
pays for another, even without the consent of the owner the expenses of
ordinary owner. cultivation and production The usufructuary cannot:
Lessee cannot
repairs and but without prejudice to 1. Sell, pledge or mortgage the property itself
constitute a
Repairs pays for 8. To Set-off the improvements he may have the right of third persons; because he is not the owner;
usufruct on
and Taxes annual made on the property against any damage 2. Sell future crops (growing crops at the
the property
charges and to the same. (NCC, Art. 580) BUT without prejudice to the termination of the usufruct belong to the
leased.
taxes on the right of third persons. Thus, if owner); and
fruits. Rule as to certain rights (rent, pension, the fruits had been planted by a 3. Lease the thing for a period longer than the
benefits, etc.) possessor in good faith, the term of the usufruct without the consent of
Usufructuary pending crop expenses and owner
may lease the The lessee Whenever a usufruct is constituted on the right charges shall be pro-rated
Limitation property to cannot to receive a rent or periodical pension, whether between said possessor and the XPN: In lease of rural lands, it may exceed the
on the use another but constitute a in money or in fruits, or in the interest on bonds usufructuary lifetime of the usufruct and shall subsist during
of cannot usufruct on or securities payable to bearer, each payment the agricultural year.
property alienate the the property due shall be considered as the proceeds of fruits Belong to the owner but he is Q: Can a usufruct be constituted on an
thin itself. leased. of such right. Whenever it consists in the bound to reimburse the encumbered or mortgaged land?
enjoyment of benefits accruing from a At the usufructuary of the ordinary
participation in any industrial or commercial termination cultivation expenses (NCC, Art. A: YES. The mortgage remains inactive until the
RIGHTS OF USUFRUCTUARY enterprise, the date of the distribution of which of the 545) out of the fruits received. debt is not paid, and the mortgage is not for the
is not fixed, such benefits shall have the same usufruct (NCC, Art. 443) The right of purpose of limiting the use of the fruits.
Rights of the usufructuary as to the thing and character. In either case they shall be innocent third parties should
its fruits (RIRICRES) distributed as civil fruits, and shall be applied in not be prejudiced. Right of usufructuary to make useful or
the manner prescribed in the preceding article. luxurious improvements
1. To Receive the fruits of the property in (Paras, 2008) NOTE: Civil fruits accrue daily; stock dividends
usufruct and half of the hidden treasure he and cash dividends are considered civil fruits. 1. The usufructuary may construct and make
accidentally finds on the property (NCC, The things referred to in Art. 570 are improvements on the property as he may
Articles 566 and 438); considered civil fruits and shall be deemed to deem proper;
accrue proportionately to the naked owner and such are not declared from profits of the XPN: If there is an express prohibition to
NOTE: The usufructuary is entitled to the usufructuary, for the time the usufruct lasts. corporation. that effect.
natural, industrial, and civil fruits that will 2. Limitation: the usufructuary cannot alter its
accrue during the existence of the usufruct. Rules if the finder of a hidden treasure is a Aside from the right to the fruits, the form and substance;
usufructuary usufructuary has the right to the enjoyment (use, 3. Removal: usufructuary may generally
2. To enjoy any Increase which the thing in not ownership) of: remove provided no injury is made on the
usufruct may acquire through accession If the finder is a usufructuary and he discovers a. Accessions (whether artificial or natural); principal even against the will of the naked
(NCC, Art. 571); it by chance, the usufructuary shall be entitled b. Servitudes and easements; and owner. If he has chosen not to remove he
3. To Retain the thing until he is reimbursed to one half of the value thereof. The other half c. All benefits inherent in the property (like cannot be compelled to remove them; and
for advances for extraordinary expenses belongs to the naked owner. the right to hunt and fish therein, the right 4. Indemnity: no right to be indemnified if the
and taxes on the capital (NCC, Art. 612); to construct rainwater receptacles, etc.) improvements cannot be removed. He may
4. To make such Improvements or expenses If the finder is a third person and he found however set-off the value of the
on the property he may deem proper and to hidden treasure by chance in the property Reason: improvements against the amount of
remove the improvements provided no under usufruct, the usufructuary shall be damage he had caused to the property.
damage is caused to the property (NCC, Art. considered a stranger. The finder gets half and The usufructuary, as a rule, is entitled to the: (Pineda, 2009)
the other half shall belong to the naked owner. a. ENTIRE jus fruendi (including fruits of
579);
(Paras, 2008) accessions); and NOTE: If the right of the usufructuary to remove
5. To Collect reimbursements from the owner
b. ENTIRE jus utendi (so he can make use for improvements is not registered in the
for indispensable extra ordinary repairs,
Rights of a usufructuary on pending natural example of an easement) registration proceedings of the land in usufruct,
taxes on the capital he advanced, and
and industrial fruits (NCC, Art. 567) an innocent purchaser for value of the property
damages caused to him;
When the expenses of cultivation and is not bound to respect the right.
6. To Remove improvements made by him if
the same will not injure the property; production exceeds the proceeds of the
FRUITS RIGHTS OF THE growing fruits Offsetting of damages and improvements
7. To personally Enjoy the thing or lease it to
another (NCC, Articles. 572-577) generally GROWING USUFRUCTUARY introduced by the usufructuary
for the same or shorter period as the If the expenses exceed the proceeds of the
At the growing fruits, the owner has no obligation to Requisites before set-off can be made:
usufruct; and
beginning of a. Belong to the usufructuary; reimburse the difference. (NCC, Art. 567) 1. Damage must have been caused by the
the usufruct usufructuary;
NOTE: As to the thing itself, the

251 UNIVERSITY OF SANTO TOMAS 252

2021 GOLDEN NOTES
 Civil Law
2. Improvements must have augmented the
value of the property; and
3. Notice of intention to set-off.
If the damages exceed the value of the
improvements, the usufructuary is liable for the
difference as indemnity.
If the improvements exceed the amount of
damages, the usufructuary may remove the
portion of the improvements representing the
excess in value if it can be done without injury;
otherwise, the excess in value accrues to the
owner.
Q: Why do improvements accrue to the
owner?
A: Because there is no indemnity for
improvements.
Rights of the usufructuary as to the usufruct
itself
1. To Alienate, pledge or mortgage the right of
usufruct, even by gratuitous title (NCC, Art.
572);
2. In a usufruct to Recover property/real
right, to bring the action and to oblige the
owner thereof to give him the proper
authority and the necessary proof to bring
the action (NCC, Art. 578); and
3. In a usufruct of part of a Common property,
to exercise all the rights pertaining to the
co-owner with respect to the
administration and collection of fruits or
interests.
Lease, alienation and encumbrance of the
property subject to usufruct
1. Rights with Reference to the THING ITSELF (in
Addition to the Usufruct)
The usufructuary, not being the owner of the
thing subject to usufruct, cannot alienate,
pledge or mortgage the thing itself.
However, the usufructuary may lease the
thing to another (This can be done even
ordinarily the lease must not extend to a
period longer than that of the usufruct,
unless the owner consents. Thus, the lease
ends at the time the usufruct ends, except in
the case of rural leases).
NOTE: If the lessee should damage the
253
property, the usufructuary shall answer to
the owner. (Art. 590) The relation between
the owner and the usufructuary, does not end
just because a lease has been made. The
usufructuary, however, can demand
reimbursement from the lessee, because of
of lease. If
the usufructuary cannot pay the damage to
the naked owner, his bond shall be liable.
This is precisely one reason for the
requirement of a bond. (NCC, Art. 583)
2. Rights with Reference to the USUFRUCTUARY
RIGHT ITSELF
The usufructuary may alienate (sell, donate,
bequeath, or devise) the usufructuary right
(except a legal usufruct, i.e., the usufruct
which parents have over the properties of
their unemancipated children, because said
usufruct is to be used for certain obligations
towards children); or a usufruct granted a
usufructuary in consideration of his person;
or a usufruct acquired thru a caucion
juratoria, for here, the need of the
usufructuary himself is the reason for the
enjoyment. (NCC, Art. 587)
The usufructuary may pledge or mortgage
the usufructuary right (because he OWNS
said right) BUT he cannot pledge or mortgage
the thing itself because he does not own the
thing [NCC, Art. 2085(2)]. Neither can he sell
or in any way alienate the thing itself, or
future crops, for crops pending at the
termination of the usufruct belong to the
naked owner. (NCC, ArtIcles 567 and 572 and
Mortgage Law, Art. 106)
Q: 120 hectares of land from the NHA
property were reserved for the site of the
National Government Center. 7 hectares from
which were withdrawn from the operation.
These revoked lands were reserved (MSBF)
However, MSBF occupied approximately 16
hectares and leased a portion thereof to
Bulacan Garden Corporation (BGC) BGC
occupies 4,590 sqm. Implementing such
revocation, NHA ordered BGC to vacate its
occupied area. BGC then filed a complaint for
injunction. Has BGC any right over the leased
premises?
A: A usufructuary may lease the object held
in usufruct. The owner of the property must
respect the lease entered into by the
Property
usufructuary so long as the usufruct exists. MSBF
was given a usufruct over only a 7-hectare area.
NHA cannot evict BGC if the 4,590 square meter
portion MSBF leased to BGC is within the 7-
hectare area held in usufruct by MSBF. However,
the NHA has the right to evict BGC if BGC
occupied a portion outside of the 7- hectare area
covered by MSBF's usufructuary rights. (NHA v.
CA, G.R. No. 148830, April 13, 2005)
Transfer of the usufruct
The transferee can enjoy the rights transferred
to him by the usufructuary until the expiration
of the usufruct. Transfer of usufructuary rights,
gratuitous or onerous, is co-terminus with the
term of usufruct.
Exercise of acts of ownership by a
usufructuary
GR: A usufructuary cannot exercise acts of
ownership such as alienation or conveyance.
XPNs: When what is to be alienated or
conveyed is a:
1. Consumable;
2. Property intended for sale; or
3. Property which has been appraised when
delivered. (NCC, Art. 574)
NOTE: If it has not yet been appraised or if it is
not a consumable, return the same quality
(mutuum)
Abnormal usufruct on consumable things
This is another instance of abnormal usufruct,
- (Art. 582);
really preserved. Thus, this is really a SIMPLE
loan. It has been included however in the title
on usufructs because in what are called
UNIVERSAL USUFRUCTS, both non-consumable
and consumable properties are included. While
we seldom find usufructs on consumable
properties alone, it is a fact that they indeed
exist. Thus, the Supreme Court has held that
even money may be the object of a usufruct.
(Paras, 2008)
- 1. Natural resources (including forest or
1. The usufructuary (debtor-borrower) can
use them (as if he is the owner, with
complete right of pledge or alienation)
2. BUT at the end of the usufruct, he must:
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
1. Pay the APPRAISED value (if appraised
when first delivered); or
2. If there was no appraisal, return same
kind, quality, and quantity OR pay the
price current at the termination of the
usufruct (therefore not at the original
price or value)
Usufruct on fruit-bearing trees and shrubs
The usufructuary of fruit-bearing trees and
shrubs may make use of the dead trunks, and
even of those cut off or uprooted by accident,
under the obligation to replace them with new
plants. (NCC, Art. 575)
NOTE: This is a SPECIAL usufruct.
Rights
The usufructuary can use (even for firewood,
though he is NOT the naked owner) the
following:
a. Dead trunks; and
b. Those cut off or uprooted by accident.
BUT he must REPLACE them with new plants
(for indeed, he was not the naked owner)
Other SPECIAL usufructs
1. Of periodical pension, income, dividends
(NCC, Art. 570);
2. Of woodland (NCC, Art. 577);
3. Of right of action to recover real property,
real right, or movable property (NCC, Art.
578);
4. Of part of property owned in common
5. Of the entire patrimony of a person (NCC,
Art. 598);
6. On a mortgaged immovable (NCC, Art. 600);
and
7. On a flock or herd of livestock. (NCC, Art.
591)
Special usufruct over a WOODLAND
This is not a common or frequent usufruct
because:
timber lands) belong to the State (Regalian
Doctrine under Art. XII, Sec. 3 of the 1987
Philippine Constitution);
2. A license is generally essential if one desires
to gather forest products (Revised
254
 Civil Law
Administrative Code, Sec. 47)
Obligations of the usufructuary over a
woodland
In the enjoyment of the usufruct, the
usufructuary:
1. Must bear in mind that he is not the owner,
and therefore, in the exercise of the diligence
in caring for the property (required under
Art. 589 he must see to it that the woodland
is preserved, either by development or by
replanting, thus he cannot consume all,
otherwise nothing would be left for the
owner.
2. In the cutting or felling of trees, he must
a.
b. In default thereof, follow the customs of
the place (as to MANNER, AMOUNT and
SEASON) (NCC, Art. 577)
All without prejudice to the owner,
for while he can USE, he cannot
ABUSE.
NOTE: The rule above is applicable if the
woodland:
i. Is a COPSE (thicket of small trees);
or
ii. Consists of timber for BUILDING.
c. If there be no customs, the only time
the usufructuary can CUT DOWN trees
will be for REPAIR or IMPROVEMENT,
but here the owner must first be
informed (the owner, thus, does not
need to consent)
3. Cannot alienate the trees (for the trees are
not considered fruits) unless he is
permitted, expressly or impliedly by the
owner (as when the purpose of the usufruct
was really to sell the timber) or unless he
needs the money to do some repairs (but in
the last case, the owner must be informed)
Rights of usufructuary to recover the
property held in usufruct
To bring the action, the usufructuary can
DEMAND from the owner:
1. Authority to bring the action (usually a
special power of attorney); and
2. Proofs needed for a recovery.
255
The action may be instituted in the
name, for being the owner of the
usufruct, he is properly deemed a real party in
interest. (Rules of Court, Sec. 2, Rule 3)
a. If the purpose is the recovery of the
property or right, he is still required under
Art. 578 to obtain the naked own
authority.
b. If the purpose is to object to or prevent
disturbance over the property (once the
property is given him), no special authority
from the naked owner is needed.
Usufructuary of a part of common property
The usufructuary of a part of a thing held in
common shall exercise all the rights pertaining
to the owner thereof with respect to the
administration and the collection of fruits or
interest. Should the co-ownership cease by
reason of the division of the thing held in
common, the usufruct of the part allotted to the
co-owner shall belong to the usufructuary.
(NCC, Art. 582)
A co-owner may give the usufruct of his share
to another, even without the consent of the
others, unless personal considerations are
present. (NCC, Art. 493)
The usufructuary in such a case takes the
a. Administration (management); and
b. Collection of fruits or interest (NCC, Art.
582) (BUT not as to alienation, disposition,
or creation of any real right over the
property, since these are strict acts of
ownership, unless of course he is
authorized by the naked owner) (Paras,
2008)
Rights of usufructuary at the expiration of
the usufruct
1. To collect reimbursement from the owner:
a. For indispensable extraordinary
repairs made by the usufructuary
(NCC, Art. 593);
b. For taxes on the capital advanced by
the usufructuary (NCC, Art. 597);
c. For damages caused by the naked
owner;
d. For payment of increase in value of the
immovable by reason of repairs
provided the owner is notified of the
Property
urgency of such repairs but the latter point out discrepancies and omissions in
failed to make said repairs despite the the inventory.
notification, and the repair is
necessary for the preservation of the 2. Conditions of immovables must be
property. (NCC, Art. 594) described; and
3. Movables must be appraised.
2. To retain the thing until reimbursement is
made. (NCC, Art. 612) NOTE: As a rule, no form is required, except
when there are real properties. Expenses
OBLIGATIONS OF USUFRUCTUARY are to be borne by the usufructuary. (Paras,
2008)
The usufructuary has obligations
When inventory is not required
1. Before the usufruct (like the making of
inventory); 1. Waived;
2. During the usufruct (like taking due care of 2. No one will be injured by the lack of
property); and inventory (NCC, Art. 585);
3. After the usufruct (like the duty to return 3. When the donor has reserved to himself the
and indemnify in the proper cases) usufruct of the property donated; or
4. Agreement of both parties.
1. Before the usufruct (NCC, Art. 583)
Effects of failure to post a bond or security
a. Make an inventory; and
b. Give security
1. The owner shall have the following options
(NCC, Art. 586):
This article speaks of two obligations (inventory
a. Receivership of realty;
and security) They are not necessary however
b. Sale of movables;
before the right to the usufruct begins; they are
c. Deposit of securities;
merely necessary before physical possession and
d. Investment of money; or
enjoyment of the property can be had, thus if the
e. Retention of the property as
usufructuary fails to give security (unless
administrator.
exempt) the usufruct still begins but the naked
owner will have the rights granted him under
2. The net product shall be delivered to the
Art. 586. (Paras, 2008)
usufructuary;
3. The usufructuary cannot collect credit due
NOTE: The purpose of giving security is to
or make investments of the capital without
insure fulfillment by the usufruct of the
the consent of the owner or of the court
obligation imposed upon him.
until the bond is given.
After the security has been given by the
Effects of failure to give security
usufructuary, he shall have a right to all the
proceeds and benefits from the day on which, in
1. On the rights of the naked owner:
accordance with the title constituting the
a. May deliver the property to the
usufruct, he should have commenced to receive
usufructuary;
them (retroactive effect of security). (NCC, Art.
b. May choose retention of the property
588)
as administrator; and
c. May demand receivership or
Requirements for the inventory
administration of the real property,
sale of movable, conversion or deposit
1. The naked owner or representative must be
of credit instruments or investment of
previously notified;
cash or profits.
NOTE: The purpose is to enable him to
2. On the rights of the usufructuary:
correct errors in the inventory if he desires.
a. Cannot possess the property until he
His absence is a waiver for corrections. If
gives security;
there is non-notification, the inventory can
b. Cannot administer property;
go on but the naked owner may later on
UNIVERSITY OF SANTO TOMAS 256
2021 GOLDEN NOTES
 Civil Law Property
c. Cannot collect credits that have 2. During the usufruct 2. Those caused by exceptional circumstances 3. After the usufruct/ at the termination
matured nor invest them; and and are indispensable for its preservation. a. Return the thing in usufruct to the
XPN: if the court or naked owner a. Take care of property; naked owner unless there is a right of
consents; b. Replace the young of animals that die or Liabilities: retention;
d. May alienate his right to usufruct. are lost or become prey when the a. The naked owner shall be held liable; b. Pay legal interest for the time that the
usufruct is constituted on a flock or herd and usufruct lasts; and
Exemption of usufructuary from the of livestock; b. The usufructuary is allowed to make c. Indemnify the naked owner for any
obligation to give security c. Make ordinary repairs; them with the right to get the increase losses due to his negligence or of his
d. Notify the owner of urgent in value and the right of retention at the transferees.
Usufructuary may be exempt from the obligation extraordinary repairs; termination of usufruct, provided there
to give security when: e. Permit works & improvements by the was notification by the usufructuary and NOTE: The usufructuary may be liable for the
naked owner not prejudicial to the failure to repair by the naked owner. damages suffered by the naked owner on
1. No one will be injured by the lack of the usufruct; (Paras, 2008) account of fraud committed by him or through
bond (NCC, Art. 585); f. Pay annual taxes and charges on the his negligence.
2. The donor (or parent) reserved the fruits; 3. Those caused by exceptional circumstances
usufruct of the property donated (NCC, Art. g. Pay interest on taxes on capital paid by but are not needed for its preservation. XPN: the usufructuary is not liable for
584); the naked owner; Liabilities: deterioration due to:
3. When there is waiver by the naked owner; h. Pay debts when usufruct is constituted a. The naked owner is liable; and
4. When there is parental usufruct (FC, Art. on the whole patrimony; b. The usufructuary cannot compel the 1. Wear and tear; or
225); i. naked owner to make such repairs and 2. Fortuitous event.
5. The usufruct is subject to caucion juratoria approval to collect credits in certain he is not allowed to make them even if
where: cases; the naked owner has failed to make RIGHTS OF THE OWNER
j. Notify the owner of any prejudicial act them. (Paras, 2008)
a. The usufructuary takes an oath to take committed by third persons; and Rights of a naked owner and the limitations
care of the things and restore them to k. Pay for court expenses and costs. NOTE: Extraordinary repairs shall be at the
imposed upon him
its previous state before the usufruct expense of the owner. The usufructuary is
is constituted; and repairs obliged to notify the owner when the need for
b. The property subject to such cannot be such repairs is urgent.
RIGHTS LIMITATIONS
alienated or encumbered or leased. The usufructuary is obliged to make the
ordinary repairs needed by the thing given in Right of retention of the usufructuary
Caucion juratoria Can alienate the thing in
usufruct. It includes such as are required by the Alienation
The usufructuary has a right of retention even usufruct.
wear and tear due to the natural use of the Cannot alter the form and
thing and are indispensable for its preservation. after the termination of the usufruct until he is Alteration
The usufructuary, being unable to file the reimbursed for the increase in value of the substance.
(NCC, Art. 592)
required bond or security, may file a verified property caused by extraordinary repairs for Cannot do anything
petition in the proper court asking for the preservation. Enjoyment prejudicial to the
NOTE: If the naked owner demanded the repair
delivery of the house and furniture necessary for usufructuary
and the usufructuary still fails to do so, the
himself and his family so that he and his family Charges or taxes which the usufructuary Can construct any works
owner may make them personally or thru
be allowed to live in a house included in the must pay and make any
another, at the expense of the usufructuary.
usufruct and retain it until the termination of the improvement provided it
(NCC, Art. 592) Construction and
usufruct without any bond or security. 1. The annual charges (in the fruits); does not diminish the
Improvement
2. The annual taxes on the fruits; and value or the usufruct or
Extraordinary repairs (NCC, Art. 593)
The same rule shall be observed with respect to prejudice the rights of the
implements, tools and other movable property Taxes imposed directly on the capital usufructuary.
It includes:
necessary for an industry or vocation in which 1. Those required by the wear and tear due to
he is engaged. (NCC, Art. 587) These shall be at the expense of the owner Alienation by naked owner
the natural use of the thing but not
indispensable for its preservation. provided they are not annual. (Paras, 2008)
Requisites before the caucion juratoria is Since the jus disponendi and the title (dominium
allowed Rules: directum) reside with the naked owner, he
Liabilities:
1. If paid by the naked owner, he can demand retains the right to ALIENATE the property
a. The naked owner should be held liable,
1. Proper court petition; legal interest on the sum paid; or BUT:
whether or not he is notified by the
2. Necessity for delivery of furniture, usufructuary; and 2. If advanced by the usufructuary, he shall
implements or house included in the recover the amount thereof at the 1. He cannot alter its form or substance; or
b. The law does not require the naked
usufruct; termination of the usufruct. [NCC, Art. 2. Do anything prejudicial to the usufructuary
owner to make them; what is important
3. Approval of the court; and 597(2)] (as when he should illegally lease the
is that he will bear the expenses made
4. Sworn promise. property to another, since this right
by the usufructuary. (Paras, 2008)

257 UNIVERSITY OF SANTO TOMAS 258

2021 GOLDEN NOTES
 Civil Law
ordinarily pertains to the usufructuary)
Improper use of the thing by the
usufructuary
The owner may demand the delivery of and
administration of the thing with responsibility
to deliver net fruits to usufructuary.
Q: On 1 January 1980, Minerva, the owner of
a building granted Petronila a usufruct over
the property until 01 June 1998 when
Manuel, a son of Petronila, would have
reached his 30th birthday. Manuel, however,
died on 1 June 1990 when he was only 26
years old.
Minerva notified Petronila that the usufruct
had been extinguished by the death of
Manuel and demanded that the latter vacate
the premises and deliver the same to the
former. Petronila refused to vacate the place
on the ground that the usufruct in her favor
would expire only on 1 June 1998 when
Manuel would have reached his 30 th
birthday and that the death of Manuel
before his 30th birthday did not extinguish
the usufruct. Whose contention should be
accepted? (1997 BAR)
accepted. A usufruct granted for the time that
may elapse before a third person reaches a
certain age shall subsist for the number of years
specified even if the third person should die
unless there is an express stipulation in the
contract that states otherwise. (NCC, Art. 606)
There is no express stipulation that the
consideration for the usufruct is the existence
not the exception should apply in this case.
When buyer must respect the usufruct
A purchaser of the property must respect the
usufruct in case it is registered or known to him
(NCC, Art. 709), otherwise, he can oust the
usufructuary, who can then look to the naked
owner for damages. (NCC, Art. 581)
Effect of the death of the naked owner on the
usufruct
The usufruct does not terminate the usufruct.
his
heirs.
259
OBLIGATIONS OF THE OWNER
1. To make reimbursement for advances of
the usufructuary (NCC, Art. 597);
2. To cancel the security, upon discharge of the
(NCC, Art. 612);
3. To respect leases of rural lands by the
usufructuary for the balance of the
agricultural year. (NCC, Art. 572)
EXTINCTION/TERMINATION
Usufruct is extinguished by: (PLDT-ERM)
1. Acquisitive Prescription;
NOTE: The use by a third person and not
the non-use by the usufructuary. Mere non-
use of the usufructuary does not terminate
the usufruct.
XPN: unless it is also a renunciation.
2. Total Loss of the thing;
NOTE: If the loss is only partial, the
usufruct continues with the remaining part.
3. Death of the usufructuary;
GR: Death of the usufructuary generally
ends the usufruct since a usufruct is
constituted essentially as a lifetime benefit
for the usufructuary or in consideration of
his person.
XPNs:
a. In the case of multiple usufructs, it
ends on the death of the last survivor
(NCC, Art. 611);
b. In case there is a period fixed based on
the number of years that would elapse
before a person would reach a certain
age, unless the period was expressly
granted only in consideration of the
existence of such person, in which
case it ends at the death of said person
(NCC, Art. 606); or
c. In case the contrary intention clearly
appears.
4. Termination of right of the person
constituting the usufruct;
5. Expiration of the period or fulfilment of the
resolutory condition;
Property
NOTE: If the usufructuary is a juridical
person, the term should not exceed 50
years.
6. Renunciation by the usufructuary; and
NOTE: It partakes the nature of a
condonation or donation. It can be made
expressly or impliedly as long as done
clearly. If done expressly, it must conform
with forms of donation. Renunciation of
of right. It is really abandonment by the
usufructuary of his right and does not
require the consent of the naked owner but
it is subject to the rights of creditors. There
can be a partial waiver except if it is a
universal usufruct.
7. Merger of the usufruct and ownership in
the same person who becomes the absolute
owner thereof. (NCC, Art. 1275)
Other Causes of termination of usufruct
a. Annulment of the act or title
constituting the usufruct;
b. Rescission;
c. Expropriation;
d. Mutual withdrawal;
e. Legal causes for terminating legal
usufruct; or
f. Abandonment or dissolution of
juridical entity (e.g. corporation)
granted with usufruct before the lapse
of the period.
Usufruct cannot be constituted in favor of a
town, corporation or association for more
than 50 years
Any usufruct constituted in favor of a
corporation or association cannot be
constituted for more than fifty years. (NCC, Art.
605) A usufruct is meant only as a lifetime
grant. Unlike a natural person, a corporation or
association's lifetime may be extended
indefinitely. The usufruct would then be
perpetual. This is especially invidious in cases
where the usufruct given to a corporation or
association covers public land. (NHA v. CA, G.R.
No. 148830, April 13, 2005)
Usufruct on a building and/or land
concerned
Rules:
1. If the usufruct is both on the building and
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
the land but the building is destroyed in
any manner whatsoever before the
expiration of the period of usufruct:
a. The usufruct on the building ends, but
the usufruct on the land continues
(usufructuary is still entitled to the use
of the land and remaining materials of
the building);
b. If the naked owner wants to rebuild
but the usufructuary refuses, the latter
prevails but the use of the land is still
his for the remainder of the period.
(Paras, 2008)
2. The usufruct is on the building alone (but
the building is destroyed before the
termination of the period):
a. The usufruct on the building ends, but
the usufructuary can still make use of
whatever materials of the building
remain;
b. The usufructuary is entitled to the use
of the land but the naked owner enjoys
preferential right to its use. (Paras,
2008)
NOTE: While the usufruct on a building does not
expressly include the land on which it is
constructed, the land should be deemed
included, because there can be no building
without land. (De Leon, 2006)
Payment of insurance on a building held in
usufruct (NCC, Art. 608)
1. If the naked owner and usufructuary share in
the premiums and the property is destroyed:
a. If the owner constructs a new building,
the usufruct continues on the new
building.
i. If the cost of the new building is
less than the insurance
indemnity, the usufructuary
should get legal interests on the
difference.
ii. If the cost is more than the
insurance indemnity, the
usufructuary enjoys the new
building completely with no
obligation to give interest on the
additional cost of the naked
owner.
b. If the naked owner does not construct a
260
 Civil Law Property
new building or rebuild, the naked owner alternative, he shall give security for the owner is obliged to abstain from doing Essential qualities of easements:
gets the insurance indemnity but he the payment of interest. (NCC, Art. or to permit a certain thing to be done on
should pay the interest thereon to the 609) his estate. (NCC, Articles 613 and 614) 1. Incorporeal;
usufructuary. (Paras, 2008) 2. Imposed upon corporeal property;
2. If both the naked owner and the Where the easement may be established on any 3. Confers no right to a participation in the
2. If the naked owner alone pays the insurance usufructuary were separately given of several tenements surrounding the dominant profits arising from it;
indemnity and the usufructuary refused to share: indemnity, each owns the indemnity given estate, the one where the way is shortest and 4. Imposed for the benefit of corporeal
to him, the usufruct being totally will cause the least damage should be chosen. property;
a. The naked owner gets the whole extinguished. However, if these two circumstances do not 5. Has two distinct tenements: dominant and
indemnity (with no obligation to give the concur in a single tenement, the way which will servient estate; and
interest thereon to the usufructuary) 3. If the usufructuary alone was given the cause the least damage should be used, even if it 6. Cause must be perpetual.
b. If the usufruct was on the building and the indemnity, he must give it to the naked will not be the shortest.
land, the usufruct continues on the land owner and compel the latter to return Easement vs. Usufruct
and the material. either the interest or to replace the There can be no easement over another
c. If the usufruct was on the building alone, property. He may deduct the interest easement for the reason that an easement may
the naked owner may rebuild, with or himself if the naked owner fails to object. be constituted only on a corporeal immovable BASIS EASEMENT USUFRUCT
without the approval of the usufructuary, (Paras, 2008) property. An easement, although it is real right
but he must pay interest on the value of over an immovable, is not a corporeal right. On real Real or
Constituted on
the land and the old materials that may Effect of bad use of the property held in (1995 BAR) property personal
have been used. (NCC, Art. 607) usufruct Limited to a
Easement vs. Servitude particular or
3. If the naked owner alone paid for the GR: Usufruct is not extinguished by bad use of Includes all
specific use
insurance but there is failure or omission on the the thing in usufruct. Use granted uses and
of the
part of the usufructuary to share: EASEMENT SERVITUDE fruits.
servient
XPN: If the abuse should cause considerable estate.
The effect is the same as if there was a injury to the owner, the latter may demand An English law Involves a
sharing, but the usufructuary must delivery to and administration by him, but he Used in civil law countries
term No right of
will be obliged to pay net proceeds to the Real Real or personal As to right of possessory possession in
share in the insurance premium. usufructuary. (NCC, Art. 610) The right Burden imposed upon possession right over an an
enjoyed another immovable immovable
4. If the usufructuary alone pays the insurance Rules in case of multiple usufructs or movable.
premium: Characteristics of easement (NICE LIAR) Not
a. The insurance indemnity goes to the 1. If constituted simultaneously, all the extinguished Extinguished
usufructuary alone, with no obligation usufructuaries must be alive at the time of As to effect of
1. A right limited by the Needs of the by death of by death of
to share it with, nor to give legal interest the constitution. The death of the last death
dominant owner or estate, without dominant usufructuary.
thereon to, the naked owner. survivor extinguishes the usufruct (NCC, possession; owner.
b. The usufruct continues on the land for Art. 611); 2. Inseparable from the estate to which it is Real right Real right
the remaining period (unless usufruct 2. If constituted successively by virtue of a attached cannot be alienated whether or whether or
has been constituted on the building donation, all the donee-usufructuaries must Nature of right
independently of the estate (NCC, Art. 617) not not
alone) be living at the time of the constitution- (2001, 2010 BAR); registered. registered.
donation of the usufruct (NCC, Art. 756); and 3. Cannot consist in the doing of an act unless As to
Rule in case of expropriation of the property 3. If constituted successively by virtue of a last the act is accessory in relation to a real Transmissibl Transmissibl
transmissibilit
(NCC, Art. 609) will, there should only be two successive easement; e e
y
usufructuaries, and both must have been 4. Involves two (2) neighboring Estates: the Cannot be
In case the property held in usufruct is death. dominant estate to which the right belongs May be constituted
expropriated for public use: and the servient estate upon which an constituted on an
EASEMENT OR SERVITUDE obligation rests; in favor, or, easement but
1. If the naked owner alone was given the 5. AL rights How it may be
burdening, a it may be
indemnity, he has the option to: It is an encumbrance imposed upon an of ownership; constituted
piece of land constituted
a. Replace it with another thing of the immovable for the benefit of: 6. Indivisible not affected by the division of held in on the land
same value and of similar condition; or the estate between two or more persons usufruct. burdened by
b. Pay legal interest to usufructuary on 1. Another immovable belonging to a different (NCC, Art. 618); an easement.
the amount of indemnity for the whole owner; or 7. It is enjoyed over Another immovable never
period of the usufruct, not just the 2. For the benefit of a community or one or Q: Can there be an easement over a
unexpired period. more persons to whom the encumbered 8. A Real right but will affect third persons usufruct?
NOTE: If the owner chooses the latter estate does not belong by virtue of which only when registered.

261 UNIVERSITY OF SANTO TOMAS 262

2021 GOLDEN NOTES
 Civil Law
A: There can be no easement over a usufruct.
Since an easement may be constituted only on a
corporeal immovable property, no easement
may be constituted on a usufruct which is not a
corporeal right.
Q: Can there be a usufruct over an
easement?
A: There can be no usufruct over an easement.
While a usufruct may be created over a right,
such right must have an existence of its own
independent of the property. A servitude
cannot be the object of a usufruct because it has
no existence independent of the property to
which it attaches.
Q: Is there such thing as judicial easement?
A: NO. When the court says that an easement
exists, it is not creating one. For, even an
injunction cannot be used to create one as there
is no such thing as a judicial easement. The
court merely declares the existence of an
easement created by the parties. (La Vista
Association v. CA, G.R. No. 95252, September 5,
1997)
PARTIES TO AN EASEMENT
1. Dominant estate refers to the immovable
for which the easement was established;
and
2. Servient estate the estate which provides
the service or benefit.
Dominant Estate v. Servient Estate
DOMINANT ESTATE SERVIENT ESTATE
Immovable in favor of That property or estate
which, the easement is which is subject to the
established. dominant estate.
Which the right Upon which an
belongs. obligation rests.
RIGHTS AND OBLIGATION OF THE OWNERS
OF THE DOMINANT AND SERVIENT
ESTATES
The owner of the dominant estate may make, at
his own expense, on the servient state any
works necessary for the use and preservation of
the servitude, but without altering it or
rendering it more burdensome.
263
For this purpose, he shall notify the owner of
the servient estate, and shall choose the most
convenient time and manner so as to cause the
least inconvenience to the owner of the servient
estate. (NCC, Art. 627)
NOTE: The necessity of the works for the use
and preservation of the easement is the basis
and the determining factor for the extent of
such works.
The works must be executed in the manner
least inconvenient to the servient owner, who
cannot recover indemnity for the inevitable
damages or inconveniences which may be
caused thereby.
But if the work is done badly, the dominant
owner will be liable for damages that may be
suffered by the servient owner.
Rights of the dominant owner (MARE)
1. Make on the servient estate all works
necessary for the use and preservation of
the servitude (NCC, Art. 627);
2. Ask for mandatory injunction to prevent
impairment of his right (Resolme v. Lazo,
G.R. No. L-8654, March 30, 1914);
3. Renounce the easement if he desires to be
exempt from contributing necessary
expenses (NCC, Art. 628); and
4. Exercise all rights necessary for the use of
the easement. (NCC, Art. 625)
Obligations of the dominant owner (CANECO)
1. He cannot Exercise the easement in any
other manner than that previously
established (NCC, Art. 626);
2. He cannot Alter the easement or render it
more burdensome [NCC, Art. 627(1)];
3. He shall Notify the servient owner of works
necessary for the use and preservation of
the servitude [NCC, Art. 627(2)];
4. He must Choose the most convenient time
and manner of making the necessary works
as to cause the least inconvenience to the
servient owner;
5. If there are several dominant estates he
must Contribute to the necessary expenses
in proportion to the benefits derived from
the works [NCC, Art. 628(1)]; and
6. He can may make, at his Own expense, on
the servient estate, any works necessary for
the use of servitude, provided it will not
Property
alter or make it more burdensome. [NCC,
Art.627(1)]
Servient owner
The owner of the immovable whose property is
subject to easement for the benefit of the
dominant owner.
Rights of the servient owner (RMC)
1. Retain the ownership of the portion of the
estate on which easement is imposed;
2. Make use of the easement unless there is an
agreement to the contrary [NCC, Art.
628(2)]; and
3. Change the place or manner of the use of
the easement, provided it be equally
convenient. [NCC, Art. 629(2)]
Obligations or limitations imposed on the
servient owner (IC)
1. He cannot Impair the use of the easement.
XPN: (1) When the easement has become
very inconvenient to the said servient
owner; and (2) If it prevents him from
making any important works, repairs, or
improvements thereon.
2. He must Contribute to the necessary
expenses in case he uses the easement,
unless otherwise agreed upon. [NCC, Art.
628(2)]
CLASSIFICATIONS OF EASEMENT
1. As to recipient of the benefit
a. Real (or predial) The easement is in
favor of another immovable (NCC, Art.
613); and
NOTE: It requires two distinct
immovables belonging to different
owners to which it relates.
b. Personal The easement is in favor of
a community, or of one or more
persons to whom the encumbered
estate does not belong e.g. easement of
right of way for passage of livestock.
(NCC, Art. 614)
NOTE: In personal servitude the
person in whose favor the easement is
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
constituted need not to be the owner
of any estate and does not require a
dominant estate because the person in
whose favor the easement is
constituted need not to be the
property owner.
2. As to the manner of exercise
a. Continuous Their use may or may not
be incessant, without the intervention
of any act of man. E.g. Easement of
drainage (NCC, Art. 615); and
NOTE: For acquisitive prescription,
the easement of aqueduct and
easement of light and view are
considered continuous.
b. Discontinuous Used at intervals and
depend upon the acts of man. E.g.
Easement of right of way
3. As to whether their existence is
indicated
a. Apparent Made known and
continually kept in view by external
signs that reveal the use and
enjoyment of the same (NCC, Art. 615);
and
NOTE: By way of exception the
easement of aqueduct is always
apparent, whether or not it can be
seen. (NCC, Art. 646)
b. Non-apparent They show no external
indication of their existence. (NCC, Art.
615)
4. As to the right given
a. Right to partially use the servient
estate;
b. Right to get specific materials or
objects from the servient estate;
c. Right to participate in ownership; and
d. Right to impede or prevent the
neighboring estate from performing a
specific act of ownership. (Paras, 2008)
5. As to source
a. Legal Those created by law for public
use or private interests;
b. Voluntary - constituted by will or
agreement of the parties or by
testator; and
NOTE: Like any other contract, a
264
 Civil Law
voluntary easement (of right-of-way)
could be extinguished only by mutual
agreement or by renunciation of the
owner of the dominant estate. (La
Vista Association v. CA, G.R. No. 95252,
September 5, 1997)
c. Mixed Created partly by agreement
and partly by law.
6. As to the duty of the servient owner:
a. Positive Imposes upon the owner of
the servient estate the obligation of
allowing something to be done or
doing it himself; and
e.g. Right of way imposes the duty to
allow the use of said way.
b. Negative Prohibits the owner of the
servient estate from doing something
which he could lawfully do if the
easement did not exist.
e.g. Easement of light and view where
the owner is prohibited from
obstructing the passage of light.
MODES OF ACQUIRING EASEMENT
1. By Title the following easements may be
acquired only by title:
a. Continuous non-apparent easements;
b. Discontinuous apparent easements;
and
c. Discontinuous non-apparent
easements. (NCC, Art. 622) (2005
BAR)
NOTE: Title means:
It does not necessarily mean
document.
It means a juridical act or law
sufficient to create the encumbrance.
E.g. law, donation, testamentary
succession, contract.
a. Intestate succession does not
create an easement, for no act is
involved. Hence, instead of
creating an easement, it transmits
merely an easement already
existing.
b. Prescription is a mode of
acquisition, and is generally and
ordinarily a title, but is not
265
considered as such under Art.
620 which expressly makes it
DISTINCT from title.
2. By Prescription of 10 years (2009 BAR)
NOTE: Prescription runs irrespective of
good faith or bad faith of the possessor and
whether or not he has just title. The only
requirement is adverse possession. Only
continuous and apparent easements can be
acquired by prescription. (NCC, Art. 620)
3. By deed of Recognition
4. By Final judgment
NO JUDICIAL EASEMENTS. Resultantly,
when the court says that an easement
exists, it is not creating one. For, even an
injunction cannot be used to create one as
there is no such thing as a judicial
easement. The court merely declares the
existence of an easement created by the
parties. (La Vista Association, Inc. v. CA, G.R.
No. 95252, September 5, 1997)
NOTE: If the owner of the servient estate
refuses to execute the deed of recognition,
the court may, in its judgment, declare the
existence of the easement.
5. By Apparent sign established by the owner
of the two adjoining estates
XPN: unless at the time the ownership of
the two estates is divided:
a. There are contrary stipulations; or
b. The sign is removed before the
execution of the deed. (NCC, Art. 624)
Computation of prescriptive period
1. Positive easement The 10-year period is
counted from the day when the owner of
the dominant estate begins to exercise it;
and
2. Negative easement from the day a notarial
prohibition is made on the servient estate.
Negative easement cannot be acquired by
prescription since they are non-apparent.
However, for purposes of prescription, there are
negative easement that can be considered
Property
their existence but because of the making of the
NOTARIAL PROHIBITION which makes it
apparent.
NOTE: In negative easement there is a need of a
formal act.
Doctrine of Apparent Sign
Easements are inseparable from the estate to
which they actively or passively pertain. The
existence of apparent sign under Art. 624 is
equivalent to a title. It is as if there is an implied
contract between the two new owners that the
easement should be constituted, since no one
objected to the continued existence of the
windows.
NOTE: It is understood that there is an exterior
sign contrary to the easement of party wall
whenever:
1. There is a window or opening in the
dividing wall of buildings;
2. Entire wall is built within the boundaries of
one of the estates;
3. The dividing wall bears the burden of the
binding beams, floors and roof frame of one
of the buildings, but not those of the others;
or
4. The lands enclosed by fences or live hedges
adjoin others which are not enclosed.
In all these cases, ownership is deemed to
belong exclusively to the owner of the property
which has in its favor the presumption based on
any of these signs.
Acknowledgement of an easement in one
who owns property
An acknowledgement of the easement is an
admission that the property belongs to another.
(BOMEDCO v. Heirs of Valdez, G.R. No. 124669,
July 31, 2003)
MODES OF EXTINGUISHMENT
OF EASEMENTS
Easements are extinguished (MEN-CRR)
(2001, 2010 BAR)
1. By Merger in the same person of the
ownership of the dominant and servient
estates;
2. By Non-user for 10 years; with respect to
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
discontinuous easements, this period shall
be computed from the day on which they
ceased to be used; and, with respect to
continuous easements from the day on
which an act contrary to the same took
place;
3. When either or both of the estates fall into
such condition that the easement Cannot be
used; but it shall revive if the subsequent
condition of the estates or either of them
should again permit its use, unless when
the use becomes possible, sufficient time
for prescription has elapsed, in accordance
with the provisions of the preceding
number;
4. By the Expiration of the term or the
fulfillment of the condition, if the easement
is temporary or conditional;
5. By the Renunciation of the owner of the
dominant estate; and
6. By the Redemption agreed upon between
the owners of the dominant and servient
estates. (NCC, Art. 631)
NOTE: The grounds under Article 631 are not
exclusive.
In addition to the foregoing causes enumerated
in Article 631 of the New Civil Code the
following may be added: (1) annulment or
rescission of title constituting easement; (2)
termination of the right of the grantor; and (3)
abandonment of the servient estate; and (4)
eminent domain. (4 Manresa, 5th ed., 590)
Merger
It is enough that the merger be with respect to
the portion of the tenement that is affected by
the servitude, or the part for the benefit of which
it was established.
Where the merger is temporary or under
resolutory condition, there is at most a
suspension, but not an extinguishment of the
servitude.
Non-user
Non-use must be due to voluntary abstention by
the dominant owner, and not to fortuitous event,
because the basis of this cause of extinguishment
is a presumptive renunciation.
NOTE: Reckoning point:
266
 Civil Law
1. Discontinuous counted from the day they
ceased to be used.
2. Continuous counted from the day an act
adverse to the exercise takes place.
Non-user presupposes that the easement has
been used before but it was abandoned for 10
years. Thus, it cannot apply to easements which
have not been used.
Impossibility of use
The impossibility of use only suspends the
servitude until such time when it can be used
again.
Expiration
e.g. An easement was agreed upon to last till the
owner of the dominant easement becomes a
lawyer. When the condition is fulfilled, the
easement ceases.
Renunciation
Renunciation must be express, definite, clear,
specific (otherwise it might be confused with
non- user) This is particularly true for
discontinuous easements. Renunciation of a real
right must be reflected in a public instrument.
Redemption
This is voluntary redemption, existing because of
an express stipulation. The stipulation may
provide conditions under which the easement
would be extinguished. (Paras, 2008)
LEGAL EASEMENT
Legal easements are those imposed by law
having for their object either public use of the
interest of private persons. They shall be
governed by the special laws and regulations
relating thereto, and in the absence thereof, by
the Civil Code.
Public legal easement
Public legal easement is for public or communal
use.
Private legal easement
267
Property
Private legal easement is for the interest of Subjacent Support
private persons or for private use. It shall be
governed by:
1. Agreement of the parties provided they are
neither prohibited by law nor prejudicial to
third persons;
2. In default, general or local laws and
ordinances for the general welfare; or
3. In default, title VII of Articles 613-687 of
the NCC.
6. Intermediate distances and works for certain
Kinds of legal easements (WIND PLWS)
construction and plantings; EASEMENTS RELATING TO WATERS
1. Easement relating to Waters;
Different easements relating to waters:
2. Easement relating to right of Way; (NBREWAC)
A. Natural drainage (NCC, Art. 637);
Scope of easement of natural drainage
Lower estates are obliged to receive the waters
which naturally and without the intervention of
7. Easement against Nuisance; and man descend from higher estates, as well as the
stones or earth which they carry with them.
(NCC, Art. 637) (2002 BAR)
3. Easement of Party wall;
NOTE: Art. 637 has already been superseded by
Art. 50 of P.D. 1067. (Water Code of the
Philippines)
Duties of Servient Estate
The owner cannot construct works that would
impede the easement BUT he may regulate or
control the descent of water.
8. Easement relating to lateral and Subjacent
4. Easement of Light and view; Duties of Dominant Estate
support.
1. He cannot construct works which will
Lateral Support
increase the burden, but he may construct
works preventing erosion;
2. They must compensate the owners of the
servient estates if the waters are result of an
overflow from irrigation dams, or the result
of artificial descent done by man and
damages caused by reason thereof,
5. Drainage of Building; Prescription of easement of natural drainage
The easement of natural drainage prescribes by
non-use for 10 years. (Paras, 2008)
Indemnity in easement of natural drainage
UNIVERSITY OF SANTO TOMAS 268
2021 GOLDEN NOTES
 Civil Law
Art. 637 of the New Civil Code, which provides
for the easement of natural drainage, does not
speak of any indemnity. It follows that no
indemnity is required as long as the conditions
laid down in the article are complied with.
(Paras, 2008)
B. Drainage of Buildings (NCC, Art. 674);
C. Easement on Riparian banks for navigation,
floatage, fishing, salvage, and tow path (NCC,
Art. 638);
Easement on Riparian Property
The banks of rivers and streams and the shores
of the seas and lakes throughout their entire
length and within a zone of three meters in
urban areas, 20 meters in agricultural areas, and
40 meters in forest areas along their margins are
subject to the easement of public use in the
interest of recreation, navigation, floatage,
fishing and salvage.
No person shall be allowed to stay in this zone
bigger than what is necessary for recreation,
navigation, floatage, fishing or salvage or to
build structures of any kind. (Art. 51, PD 1067)
D. Easement of a Dam (NCC, Articles 639 and
647);
A person may establish the easement of
abutment or of a dam provided that:
1. The purpose is to divert or take water from
a river or brook, or to use any other
continuous or discontinuous stream;
2. It is necessary to build a dam;
3. The person to construct it is not the owner
of the banks or lots which must support it;
and
4. Payment of proper indemnity is made.
He must seek the permission of the owner and in
from the proper administrative agency.
E. Easement for drawing Water or for watering
animals (NCC, Arts. 640-641);
This is a combined easement for drawing of
water and right of way.
Requisites for easement for watering cattle
269
1. It must be imposed for reasons of public
use;
2. It must be in favor of a town or village; and
3. Indemnity must be paid. (NCC, Art. 640)
NOTE: The right to make the water flow thru or
under intervening or lower estates.
Requisites for drawing water or for watering
of animals
1. Owner of the dominant estate has the
capacity to dispose of the water;
2. The water is sufficient for the use intended;
3. Proposed right of way is the most
convenient and the least onerous to third
persons; and
4. Pay indemnity to the owner of the servient
estate. (NCC, Art. 643)
NOTE: The absence of any one of these
requirements will prevent the imposition of the
easement of aqueduct on the intervening estates.
Easement Of Right Of Way Does Not
Necessarily Include Easement Of Aqueduct
trenches and lay pipelines for conducting water
to his tenement. (San Rafael Ranch Co. vs. Rogers,
Co., 154 C 76, P1092)
F. Easement of Aqueduct (NCC, Articles 642-
646); and
The easement of aqueduct, for legal purposes, is
considered continuous and apparent even
though the flow of water may not be continuous
or its use depends upon the needs of the
dominant estate or upon a schedule of alternate
days or hours. (NCC, Art. 646)
NOTE: Easement of aqueduct is not acquirable
by prescription after 10 years because although
it is continuous and apparent in character, under
the Water Code of the Philippines (P.D. 1067), all
waters belong to the State; therefore, they
cannot be the subject of acquisitive prescription.
(Jurado, 2011)
It is an easement which gives right to make
water flow thru intervening estates in order that
one may make use of said water. However,
unlike the easement for drawing water or for
Property
watering animals, the existence of the latter does
not necessarily include the easement of
aqueduct.
Requisites for easement of aqueduct
1. Indemnity must be paid to the owners of
intervening estates and to the owners of
lower estates upon which waters may filter
or descend.
NOTE: The amount usually depends on
duration and inconvenience caused.
2. If for private interests, the easement cannot
be imposed on existing buildings,
courtyards, annexes, out- houses, orchards
or gardens but can be on other things, like
road, provided no injury is caused to said
properties.
3. There must be a proof:
a. That the owner of the dominant estate
can dispose of the water;
b. That the water is sufficient for the use
which it is intended;
c. That the proposed course is the most
convenient and least onerous to third
persons and the servient estate; and
d. That a proper administrative
permission has been obtained. (Paras,
2008)
Right of the owner of the servient estate to
fence
The easement of aqueduct does not prevent the
owner of the servient estate from closing or
fencing it, or from building over the aqueduct in
such manner as not to cause the owner of the
dominant estate any damage, or render
necessary repairs and cleanings impossible.
(NCC, Art. 645)
G. Easement for the Construction of a Stop Lock
or Sluice Gate (NCC, Art. 647)
To make these structures in the bed of a stream
from which they needed water for irrigation or
improvement of the dominant estate will be
drawn, it is required that the dominant owner
pays the riparian owners where the structures
will be constructed for the damages caused to
the latter and to other irrigators who may
sustain damages also.
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Q: The original developer of Happy Glen Loop
(HGL) loaned from T. P. Marcelo Realty
Corporation. HGL failed to settle its debts so
he assigned all his rights to Marcelo over
several parcels of land in the subdivision.
Marcelo represented to lot buyers that a
water facility is available in the subdivision.
Marcelo sold the lot to Liwag who
subsequently died. The wife of Liwag
demanded the removal of the overhead
water tank over the parcel of land
contending that its existence is merely
tolerated. HGL Homeowners Association
refused the demand contending that they
have used continuously the facility for more
than 30 years. Is there an established
easement for water facility in the lot?
A: YES. The water facility is an encumbrance on
the lot of the Subdivision for the benefit of the
community. It is continuous and apparent,
because it is used incessantly without human
intervention, and because it is continually kept
in view by the overhead water tank, which
reveals its use to the public. The easement of
water facility has been voluntarily established
either by Marcelo, the Subdivision owner and
the original developer of the Subdivision. For
more than 30 years, the facility was
continuously used as
of water. (Liwag vs Happy Glen Loop
Homeowners Association, Inc., G.R. No. 189755,
July 4, 2012)
EASEMENT OF RIGHT OF WAY
(1996, 2005, 2010 BAR)
Easement of right of way is the right granted to
a person or class of persons to pass over the
land of another by using a particular pathway
have no adequate outlet to a public highway
subject, however to payment of indemnity to
the owner of the land burdened by the right.
(Pineda, 2009)
Right of way
It may refer either to the easement itself, or
simply, to the strip of land over which passage
can be done. (Paras, 2008)
Q: May the easement of right of way be
acquired by prescription?
A: Easement of right of way cannot be acquired
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 Civil Law
by prescription because it is discontinuous or
intermittent. (Ronquillo, et al. v. Roco, G.R. No. L-
10619, February 28, 1958)
Q: What kind of servitude in favor of the
government is a private owner required to
recognize?
A: The only servitude which he is required to
recognize in favor of the government are:
1. The easement of a public highway;
2. Private way established by law; or
3. Any government canal or lateral that has
been pre-existing at the time of the
registration of the land.
NOTE: If the easement is not pre-existing and is
sought to be imposed only after the land has
been registered under the Land Registration
Act, proper expropriation proceedings should
be had, and just compensation paid to the
registered owner. (Eslaban v. Vda De Onorio,
G.R. No. 146062, June 28, 2001)
Requisites for easement on right of way
(POON-D) (1996, 2005, 2010 BAR)
1. The easement must be established at the
point least Prejudicial to the servient estate
(NCC, Art. 649);
2. Claimant must be an Owner of enclosed
3. There must be no adequate Outlet to a
public highway [NCC, Art. 649, (1)];
4. The right of way must be absolutely
Necessary not mere convenience;
5. The isolation must not be Due to the
(NCC, Art. 649); and
6. There must be payment of proper
Indemnity.
Least prejudicial to the servient estate
(1996, 2000, 2005, 2010 BAR)
way means it is the shortest way and the one
which will cause the least damage to the
property to the servient estate in favor of the
dominant estate.
Q: Lots A and B are owned by Demit while
Lot C is owned by Dayum. Lot C has an
existing right of way. After inspection of the
area, it has been found out that a fence and
portion of the residential house owned by
271
right of way. Dayum demanded that Demit
pay for the area encroached or demolish the
wall fence and portion of the house which
have been encroaching. Demit contends that
as owner of Lot A and B, he is equally
entitled to the road of right of way and
proposed to buy the portion. Is the
contention of Demit correct?
A: NO. As the owner of the servient estate,
Dayum retained ownership of the road right of
way even assuming that said encumbrance was
for the benefit of Lots of Demit. The latter could
not claim to own even a portion of the road
right of way because Art. 630 of the Civil Code
expressly provides that "[t]he owner of the
servient estate retains ownership of the portion
on which the easement is established, and may
use the same in such manner as not to affect the
exercise of the easement." (Sps. Mercader v. Sps.
Bardilas, G.R. No. 163157, June 27, 2016)
Q: What if the property is not the shortest
way but will cause the least damage to the
servient estate?
A: The way which will cause the least damage
should be used even if it will not be the
shortest.
The easement of right of way shall be
established at the point least prejudicial to the
servient estate and where the distance from the
dominant estate to a public highway is the
shortest. In case of conflict, the criterion of least
prejudice prevails over the criterion of shortest
distance.
Mere Inconvenience is not a Justification for
a Right of Way
Thus, it was held that where the petitioner
could have access to Sucat Road (Paranaque)
through the Lombos Subdivision from which he
acquired his lot and not from Gatchalian Realty
Inc., he cannot claim any right of way from the
latter. (Ramos vs. Gatchalian Realty, Inc., G.R.
75905, 154 SCRA 703)
Legal Easement, Not Dependent Upon
Consent
The existence of a legal easement does not
depend upon the consent of the servient owner
or owners
Property
Claimant must be an owner of enclosed
immovable or with real right
Adequate outlet
The convenience of the dominant estate has
never been the gauge for the grant of
compulsory right of way. To be sure, the true
standard for the grant of the legal right is
"adequacy." Hence, when there is already an
existing adequate outlet from the dominant
estate to a public highway, as in this case, even
when the said outlet, for one reason or another,
be inconvenient, the need to open up another
servitude is entirely unjustified. (Dichoso v.
Marcos, G.R. No. 180282, April 11, 2011; Alicia B.
Reyes v. Spouses Francisco S. Valentin and
Anatalia Ramos, G.R. No. 194488, February 11,
2015, as penned by J. Leonen)
Q: The coconut farm of Federico is
surrounded by the lands of Romulo.
Federico seeks a right of way through a
portion of the land of Romulo to bring his
coconut products to the market. He has
chosen a point where he will pass through a
housing project of Romulo. The latter wants
him to pass another way which is 1km
longer. Who should prevail? (2000 BAR)
A: ROMULO will prevail. Under Art. 650, the
easement of right of way shall be established at
the point least prejudicial to the servient estate
and where the distance from the dominant
estate to a public highway is the shortest. In
case of conflict, the criterion of least prejudice
prevails over the criterion of shortest distance.
Since the route chosen by Federico will
prejudice the housing project of Romulo,
Romulo has the right to demand that Federico
pass another way even though it will be longer.
Q: David owns a subdivision which does not
have access to the highway. When he applied
for a license to establish the subdivision, he
represented that he will purchase a rice
field located between his land and the
highway, and develop it into an access road.
However, when the license was granted, he
did not buy the rice field, which remained
unutilized. Instead, he chose to connect his
subdivision with the neighboring
subdivision of Nestor, which has access to
the highway. When Nestor and David failed
to arrive at an agreement as to
compensation, Nestor built a wall across the
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
David entitled to an easement of right of way
through the subdivision of Nestor which he
claims to be the most adequate and practical
outlet to the highway?
A: NO, David is not entitled to the right of way
being claimed. The isolation of his subdivision
was due to his own act or omission because he
did not develop an access road to the rice fields
which he was supposed to purchase according
to his own representation when he applied for a
license to establish the subdivision. (Floro v.
Llenado, G.R. No. 75723, June 2, 1995)
When Adequate Outlet to a Public Highway
is Available Through Water
If the outlet to a highway is through water, like
a river, lake or sea, and the same is not
dangerous to cross nor do they pose grave
inconvenience, the right of way should not be
granted.
If the waterway is dangerous and to construct a
bridge over it is too expensive, it is as if there is
no available outlet to the highway. In which
case, right of way is grantable.
Determination of proper indemnity to the
servient estate
If the passage is:
1. Continuous and permanent The
indemnity consists of the value of the
land occupied plus the amount of damages
caused to the servient estate; and
2. Temporary Indemnity consists in the
payment of the damage caused.
Two instances where indemnity is not
required
1. When a piece of land acquired by sale,
exchange or partition is surrounded by
other estates of the vendor, exchanger or
co-owner. In such case he shall be obliged
to grant a right of way without indemnity
(NCC, Art. 652); or
2. When a piece of land acquired by donation
surround the estate of the donor or grantor.
In such case, the donee or grantee shall be
obliged to grant a right of way without
indemnity. (NCC, Art. 653 (2))
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 Civil Law
NOTE: If it is the land donated that is
surrounded by the estate of the donor or
grantor, although the latter is obliged to grant a
right of way, he can demand the required
indemnity. (NCC, Art. 652)
Granting of Right of Way, Without Indemnity
When the vendor sells a parcel of land and this
land is surrounded by other estates of said
vendor and is without access to a public
highway, the vendor is obliged to grant a right
of way without demanding an indemnity.
This rule equally applies to an exchange of
property, or partition of property in co-
ownership. The exchanger, or the co-owner
shall have the same obligation as the vendor.
Measurement for the easement of right of
way
The width of the easement shall be that which is
sufficient for the needs of the dominant estate.
(NCC, Art. 651)
Q: Can a dominant owner demand a
driveway for his automobile?
A: YES, due to necessity of motor vehicles in the
present age.
Liability for repairs and taxes
1. As to repairs, the dominant owner is liable
for necessary repairs;
2. As to proportionate share of the taxes, it
shall be reimbursed by said owner to the
proprietor of the servient estate. This
applies only to permanent easements. (NCC,
Art. 654)
Special causes of extinguishment of right of
way
1. The opening of a public road giving access
to isolated estate; or
2. When the dominant estate is joined to
another estate (such as when the dominant
owner bought an adjacent estate) which is
abutting a public road, the access being
adequate and convenient. (NCC, Art. 655)
Both cases must substantially meet the needs of
the dominant estate. Otherwise, the easement
may not be extinguished.
273
NOTE: Said extinguishment is NOT automatic.
There must be a demand for extinguishment
coupled with tender of indemnity by the
servient owner.
Q: Emma bought a parcel of land from
Equitable-PCI Bank, which acquired the
same from Felisa, the original owner.
Thereafter, Emma discovered that Felisa
had granted a right of way over the land in
favor of the land of Georgina, which had no
outlet to a public highway, but the easement
was not annotated when the servient estate
was registered under the Torrens system.
Emma then filed a complaint for
cancellation of the right of way, on the
ground that it had been extinguished by
such failure to annotate. How would you
decide the controversy? (2001 BAR)
A: The complaint for cancellation of easement
of right of way must fail. The failure to annotate
the easement upon the title of the servient
estate is not among the grounds for
extinguishing an easement under Art. 631 of the
NCC. Under Art. 617, easements are inseparable
from the estate to which they actively or
passively belong. Once it attaches, it can only be
extinguished under Art. 631, and they exist
even if they are not stated or annotated as an
encumbrance on the Torrens title of the
servient estate.
Temporary easement of right of way
If it be indispensable for the construction,
repair, improvement, alteration or
beautification of a building, to carry materials
through the estate of another, or to raise
thereon scaffolding or other objects necessary
for the work, the owner of such estate shall be
obliged to permit the act, after receiving
payment of the proper indemnity for the
damage caused him. (NCC, Art. 656)
Easement of right of way for the passage of
livestock or sevidumbres pecurias
Governed by the ordinances and regulations
relating thereto and in their absence, by the
usages and customs of the place.
Maximum width:
1. Animal path 75 meters;
Property
2. Animal trail 37 meters and 50
centimeters; and
3. Cattle 10 meters (unless to the old Civil
Code, vested rights has been acquired to a
greater width). (Paras, 2008; NCC, Art. 657)
EASEMENTS OF PARTY WALL
Easement of party wall
The easement of party wall is also called
servidumbre de medianera.
Party wall defined
Is a wall erected on the line between the
adjoining properties belonging to different
persons, for the use of both estates. (Pineda,
2009)
Governed by:
1. The Civil Code;
2. Local ordinances and customs; and
3. The rules co-ownership. (NCC, 658)
Q: Is the easement of party wall really an
easement or is it a case of co-ownership?
A: While it is called an easement by the law, the
law in some articles refers to it as a case of co-
ownership or part-ownership. (NCC, Articles
662, 665, 666) The truth is that, it is a
compulsory kind of co-ownership (FORGED
INDIVISION) where the shares of each owner
cannot be separated physically (otherwise the
wall would be destroyed), although said shares
may in a sense be materially pointed out. Thus,
each co-owner owns the half nearest to him.
(Paras, 2008)
The existence of an easement of party wall is
presumed, unless there is a title, or exterior
sign, or proof to the contrary:
1. In dividing walls of adjoining buildings up
to the point of common elevation;
2. In dividing walls of gardens or yards
situated in cities, towns, or in rural
communities; or
3. In fences, walls and live hedges dividing
rural lands. (NCC, Art. 659)
It is understood that there is an exterior
sign, contrary to the easement of party wall
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
whenever:
1. There is a window or opening in the
dividing wall of the buildings;
2. Dividing wall is on one side straight and
plumb on all its facement, and on the other,
it has similar conditions on the upper part
but the lower part slants or projects
outward;
3. Entire wall is built within the boundaries of
one of the estates;
4. The dividing walls bears the burden of the
binding beams, floors and roof frame of one
of the buildings, but not those of the others;
5. The dividing wall between courtyards,
gardens and tenements is constructed in
such a way that the coping sheds the water
upon only one of the estates;
6. The dividing wall, being built by masonry,
had stepping stones, which at certain
intervals project from the surface of one
side only, but not on the other; or
7. The lands enclosed by fences or live hedges
adjoin others which are not enclosed.
In all these cases, the ownership is deemed to
belong exclusively to the owner of the property
which has in its favor the presumption based on
any of these signs. (NCC, 660)
Right to Increase Height of Party Wall
Every part-owner of a party has the right to
increase the height of the party wall subject to
the following conditions:
1. The same shall be done at his expense;
2. He shall pay for any damage which may be
caused by his work, even though such
damage may be temporary; and
3. If the party wall cannot bear the increased
height, the owner desiring to raise it shall
be obliged to reconstruct it at his own
expense, if it be necessary to make it
thicker, he shall give space required from
his own land. (NCC, 664)
Repairs and Maintenance of a Party Wall
GR: The expenses for construction and repairs
of party walls shall be shouldered by all the
owners of the party wall.
XPN: If a part owner renounces his part
ownership on the party wall. The renunciation
must be absolute and total because the
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 Civil Law
easement of party wall is indivisible.
NOTE: The owner of the building or structure
supported by a party wall who desires to
demolish such building or structure, may
RENOUNCE his part ownership of the wall. The
cost of all repairs and works necessary to
prevent any damage which the demolition may
cause to the party wall on this occasion shall be
borne by him.
EASEMENT OF LIGHT AND VIEW
No part-owner may, without the consent of the
others, open through the party wall any
window or aperture of any kind. (NCC, Art. 667)
A window or opening in the dividing wall of
buildings is an exterior sign which rebuts the
presumption that the wall is a party wall; one
part-owner may not, therefore, make any
window or opening of any kind thru a party
wall without the consent of others.
The easement of LIGHT The
opening is for the purpose of admitting light
and not for viewing.
(as in the case of small windows, not more than
30 cm. square, at the height of the ceiling joist,
the purpose of which is to admit light, and a
little air, but not VIEW). (Paras. 2008)
The easement of VIEW
The opening is for the purpose of
viewing. (as in the case of full or regular
windows overlooking the adjoining estate)
(Incidentally, although the principal purpose
here is VIEW, the easement of light is necessarily
included, as well as the easement of altius non
tollendi [not to build higher for the purpose of
obstruction. (Paras, 2008)
When easement of light and view is positive
and when negative
Positive If the window is thru a party wall.
(NCC, Art. 668, par. 1) Therefore, the period of
prescription commences from the time the
window is opened.
NOTE: The mere opening of the window does
not create the easement; it is only when after a
sufficient lapse of time the window still remains
open, that the easement of light and view is
created. (NCC, Art. 668, par. 1) Moreover, even if
275
own wall, still the
easement would be positive if the window is on
a balcony or projection extending over into the
adjoining land. (Paras, 2008)
Negative
wall, that is, thru a wall of the dominant estate.
(NCC, Art. 668, par. 2) Therefore, the time for
the period of prescription should begin from
the time of notarial prohibition upon the
Art. 538)
means not merely any writing, but one executed
in due form and/or with solemnity a public
instrument. (Laureana A. Cid v. Irene P. Javier, et
al., G.R. No. L-14116, June 30, 1960)
XPN: Even if the window is on the wall of the
dominant estate, still easement of light and
view would be POSITIVE if the window is on the
balcony or extension extending over the land of
the servient estate.
Thus, the period of prescription for the
acquisition shall be counted from the time
of:
1. Opening of the window, if through a party
wall; or
2. The formal prohibition upon the proprietor
of the adjoining land, if window is through a
wall on the dominant estate.
Openings at height of ceiling joints to admit
light (NCC, Art. 669)
When the distances in Art. 670 are not
observed, the owner of a wall which is not a
party wall can make an opening for the purpose
of admitting light and air, but NOT for view.
Restrictions for making an opening for light
and air
1. The size must not exceed 30-centimeter
square;
2. The opening must be at the height of the
ceiling joists or immediately under the
ceiling;
3. There must be an iron grating imbedded in
the wall; and
4. There must be a wire screen.
If the wall becomes a party wall A part owner
can order the closure of the opening because no
part owner may make an opening through a
Property
party wall without the consent of the others; it
can also obstruct the opening unless an
easement.
The openings allowed by Art. 669 are for the
purpose of admitting light; hence they can be
made only in the walls of buildings.
NOTE: Art. 669 refers to restricted windows.
Direct and oblique views (NCC, Articles 670-
671)
Articles 670 and 671 deal with regular, full
windows.
Direct view - It is that which is obtained from a
wall parallel to the boundary line, such that
from the opening in such wall it is possible to
see the adjoining tenement without the
necessity of putting out or turning one's head
side.
NOTE: When windows are opened at a distance
less than that prescribed by Art. 670 from the
boundary lines, they constitute unlawful
openings, however, it is not necessary always
that the wall sustaining the opening and the
dividing line be exactly and geometrically
parallel.
Oblique view - It is obtained from a wall at an
angle with the boundary line; in order to see the
adjoining tenement, it is necessary to turn one's
head to the left or to the right.
Restrictions as to easement of views
1. Direct Views: The distance of two (2)
meters between the wall and the boundary
must be observed; and
2. Oblique Views: (Walls perpendicular or at
an angle to the boundary line) must not be
60 cm to the nearest edge of the window.
(NCC, Art. 670)
Any stipulation to the contrary is void. (NCC,
Art. 673) And the owner who opened them may
be ordered by the court to close them.
Prescription may still be acquired as a negative
easement after ten years from the time of
notarial prohibition.
The distance referred to in Art. 670 shall be
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
measured in cases of direct views from the
outer line of the wall when the openings do not
project, from the outer line of the latter when
they do, and in cases of oblique view from the
dividing line between the two properties. (NCC,
Art. 671)
Where buildings are separated by a public
way or alley (NCC, Art. 672)
The distance provided in Art. 670 is not
compulsory where there is a public way or alley
provided that it is not less than three meters
wide, the minimum width is necessary for the
sake of privacy and safety.
NOTE: The width of the alley is subject to
special regulations and ordinances.
A private alley opened to the use of the general
public falls within the provision of Art. 672.
Where easement of direct view had been
acquired (NCC, Art. 673)
Whenever the easement of direct view has been
acquired by any such title, there is created a
true easement. The owner of the servient estate
cannot build thereon at less than a distance of
three meters from the boundary line.
NOTE: The title used in Art. 673 refers to any
modes of acquiring easements:
1. Contract;
2. Will;
3. Donation; or
4. Prescription.
The distance may be increased or decreased by
stipulation of the parties provided that in case
of decrease, the minimum distance of two
meters or sixty centimeters prescribed in Art.
670 must be observed, otherwise it is void. The
said distances involve considerations of public
policy and the general welfare; hence, they
should not be rendered ineffective by
stipulation.
EASEMENT OF DRAINAGE OF BUILDINGS
The owner of a building shall be obliged to
construct its roof or covering in such manner
that the rain water shall fall on his own land or
on a street or public place, and not on the land
of his neighbor, even though the adjacent land
276
 Civil Law
may belong to two or more persons, one of
whom is the owner of the roof. Even if it should
fall on his own land, the owner shall be obliged
to collect the water in such a way as not to
cause damage to the adjacent land or tenement.
(NCC, Art. 674)
NOTE: Art. 674 does not establish servitude but
merely regulates the use of one's property.
Easement to receive falling rain waters
(NCC, Art. 675)
The owner of a tenement or a piece of land,
subject to the easement of receiving water
falling from roofs, may build in such manner as
to receive the water upon his own roof or give it
another outlet in accordance with local
ordinances or customs, and in such a way as not
to cause any nuisance or damage whatever to
the dominant estate.
Easement giving outlet to rainwater where
house surrounded by other houses
Requisites:
1. There must be no adequate outlet to the
rainwater because the yard or court of a
house is surrounded by other houses;
2. The outlet to the water must be at the point
where egress is easiest, and establishing a
conduit for drainage; and
3. There must be payment of proper
indemnity. (NCC, Art. 676)
Ownership of Rainwater
Pursuant to the provision of the Water Code of
the Philippines, the, rain waters falling on
private lands shall belong to the State.
INTERMEDIATE DISTANCES AND WORKS
FOR CERTAIN CONSTRUCTIONS AND
PLANTINGS
No constructions can be built, or plantings made
near fortified places or fortresses without
compliance with the conditions required in
special laws, ordinances, and regulations
relating thereto. (NCC, Art. 677)
NOTE: Art. 677 establishes an easement in
favor of the State. The general prohibition is
dictated by the demands of national security.
Construction of aqueduct, well, sewer, etc.
277
No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of
corrosive substances, machinery, or factory
which by reason of its nature or products is
dangerous or noxious, without observing the
distances prescribed by the regulations and
customs of the place, and without making the
necessary protective works, subject, in regard
to the manner thereof, to the conditions
prescribed by such regulations. These
prohibitions cannot be altered or renounced by
stipulation on the part of the adjoining
proprietors. (NCC, Art. 678)
NOTE: The owner must take necessary
protective works or other neighboring estates.
Planting of trees
Art. 679 establishes a negative easement. It
provides the minimum distances of trees and
shrubs from the boundary line. They shall be
regulated by the local ordinances and in the
absence thereof, by the customs of the place,
and in default thereof, by Art. 679.
Distance in Planting of Trees under Article
679 of the New Civil Code.
1. The distance authorized by local ordinances
or customs of the place, if any; or
2. If there are no ordinance or custom:
a. At least two (2) meters from the
dividing line of the estate in case of tall
trees; and
b. At a distance of at least 50 centimeters
in case of shrubs or small trees.
Remedy In Case Of Violation
In case of violation of the law, ordinances, or
customs, and the neighboring landowners can
demand the removal of the trees illegally
planted. This remedy also applies to trees
which have grown spontaneously, that is,
without any thought of planting them in the
tenement of the servient owner.
Intrusions of branches or roots into
neighboring estate
Q: Can the adjoining estate cut the roots and
the branches without the consent of the
owner of the tree?
Property
A: Right to cut roots can be exercised without
notice to the owner of the trees. BUT as to the
branches, it is necessary to ask that they be cut,
and if the owner of the tree does not do so
voluntarily, the court may authorize the
neighboring owner to cut them.
Q: Does this right prescribe?
A: The right to cut does not prescribe so long as
the owner tolerates the branches and roots
invading his tenement. BUT the moment the
owner of the tenement demanded that the
branches be cut off and the owner of the tree
refuses to do so, the prescription starts to run.
Fruits naturally falling upon adjacent land
Q: Who owns the fruits which fall from the
adjacent land?
A: Such fruits belong to the owner of the
adjacent land to compensate him for the
inconvenience causes by the branches of trees
extending over his land. Note however that for
the adjacent owner to be entitled to the fruits
they must not only fall upon his land but the
falling must occur naturally.
NOTE: If the fruits fall on public property, the
owner of the tree retains ownership.
EASEMENT AGAINST NUISANCE
Easement against nuisance is a negative
easement because the proprietor or possessor
is prohibited to do something which he could
lawfully do were it not for the existence of the
easement. However, a nuisance involves any act
or omission which is unlawful.
NOTE: The easement against nuisance is not an
easement at all but a restriction upon the
ownership and not every limitation on the right
of ownership is an easement.
LATERAL AND SUBJACENT SUPPORT
Proprietor prohibited from making
dangerous excavations
No proprietor shall make such excavations
upon his land as to deprive any adjacent land or
building of sufficient lateral or subjacent
support. (NCC, Art. 684)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
General Rule; Exception
The owner of a parcel of land is the owner of its
surface and everything under it. As such, he has
the right to construct any works thereon or
make any plantations and excavations which he
may deem proper. (Art. 437)
As limitation, he cannot do so to the detriment
of servitudes. Further, he must observe the
requirements of special laws and ordinances.
Lateral Support
This is the support on the vertical side of a land,
the removal of which may cause the land to
crumble or slide.
Subjacent Support
This is the horizontal support underneath a
land or building the removal of which may
cause the sinking or crumbling of the land or
building.
The support is lateral when both the land being
supported and the supporting land are on the
SAME PLANE; when the supported land is
ABOVE the supporting land, the support is
subjacent. (Paras, 2008)
Remedies for violation of Art. 684
1. Claim for damages for injuries sustained; or
2. Injunction.
NOTE: Any stipulation or testamentary
provision allowing excavations that cause
danger to an adjacent land or building shall be
void. (NCC, Art. 685)
Notice to owners of adjacent lands
Any proprietor intending to make any
excavation contemplated in Articles 684-686
shall notify all owners of adjacent lands.
The notice is mandatory except where there is
actual knowledge of the proposed excavation.
NOTE: The legal easement of lateral and
subjacent support are NOT only applicable for
buildings already constructed at the time of the
excavations but also to future buildings that
278
 Civil Law Property
may be constructed on the adjoining lands. Art. 690) the condominium belong to the same person. There is a
No one can have an easement over his own continuing
VOLUNTARY EASEMENT Expenses for work required for use and property. Even of the assumption that an harm being
Act
preservation of the easement. easement was created in favor of FMI that alone suffered by
complained of
An easement is voluntary when it is established will not defeat the right of the mortgagee to the aggrieved
Condition is already done
by the will of the owners. If the owner of the servient estate has bound enforce the security if the debtor defaults. party by the
of the act which caused
himself to pay for the cost of the work needed (Bogo- Medellin v. CA, G.R. No. 124699, July 31, maintenance
the injury to
Persons who may constitute voluntary for the use and preservation of the easement, 2003) of the act or
plaintiff
easement and wants to free himself from such obligations, thing which
he may simply renounce or abandon his NUISANCE constitutes
Voluntary easements may be constituted by the property in favor of the owner of the dominant the nuisance.
owner possessing capacity to encumber state. A nuisance is any act, omission, establishment, Abatement
Abatement is
property. If there are various owners, all must business, condition of property, or anything without
not available
consent; but consent once given is not Q: Mr. Bong owns several properties in Pasig else which: judicial
as a remedy.
revocable. City. He decided to build a condominium Abatement proceedings is
The remedy is
named Flores de Manila in one of his lots. To 1. Injures or endangers the health or safety of allowed to
action for
NOTE: Third persons are not bound by a fund the project, he obtained a loan from the others; suppress the
damages.
voluntary easement unless the same is duly National Bank (NB) secured by a real estate 2. Annoys or offends the senses; nuisance.
recorded with the proper authorities. mortgage over the adjoining property which 3. Shocks, defies or disregards decency or
he also owned. morality; NOTE: Nuisance is wrongful in itself due to the
Q: For whose favor are voluntary easements 4. Obstructs or interferes with the free injury caused, regardless of the presence or
established? During construction, he built three pumps passage of any public highway or street, or absence of care, while negligence creates
on the mortgaged property to supply water any body of water; or liability due to want of proper care resulting to
A: to the condominium. After one year, the 5. Hinders or impairs the use of property. (Pineda, 2009)
1. Predial servitudes: project was completed and the (NCC, Art. 694) (2005, 2006 BBAR)
a. For the owner of the dominant estate; condominium was turned over to the Kinds of Nuisance
and buyers. However, Mr. Bong failed to pay his Nuisance vs. Trespass
b. For any other person having any loan obligation to NB. Thus, NB foreclosed 1. As to the number of persons affected:
juridical relation with the dominant the mortgaged property where the pumps NUISANCE TRESPASS (2005 BAR)
estate, if the owner ratifies it. were installed. During the sale on public Use of
auction of the mortgaged property, Mr. which causes injury to a. Public (or common) One that affects a
2. Personal servitudes: Simon won in the bidding. When Mr. Simon another the property, right Direct community or neighborhood or any
a. For anyone capacitated to accept. attempted to take possession of the or interest of another, and infringement of considerable number of persons
property, the condominium owners, who in generally results from the although the extent of the annoyance,
Q: How are voluntary easements created and the meantime constituted themselves into commission of an act or property. danger or damage upon individuals
what are the governing rules for such? Flores de Manila Inc. (FMI), claimed that beyond the limits of the may be unequal (Suarez, 2011); and
they have earlier filed a case for the property affected.
A: declaration of the existence of an easement Injury is direct b. Private one which affects an
before the Regional Trial Court (RTC) of Injury is consequential. individual or few persons only.
1. If created by title (contract, will, etc.), the and immediate.
title governs; and Pasig City and prayed that the easement be
2. If acquired by prescription, it is governed annotated in the title of the property 2. Other classification:
NOTE: An encroachment upon the space of
by the manner or form of possession. foreclosed by NB. FMI further claimed that
when Mr. Bong installed the pumps in his a. Nuisance per se That kind of nuisance
considered a nuisance, and not trespass.
NOTE: In both cases, the Civil Code will only adjoining property, a voluntary easement which is always a nuisance. By its
apply suppletorily. was constituted in favor of FMI. Will the nature, it is always a nuisance all the
Nuisance vs. Negligence
action prosper? (2014 BAR) time under any circumstances
When consent is necessary NEGLIGENCE NUISANCE regardless of location or surroundings
A: NO, the action will not prosper. The essence It is an act, occupation, or structure
Liability
The owner of a property in usufruct may create of a mortgage is that it immediately subjects the which unquestionably is a nuisance at
attaches
easements thereon without the consent of the property upon which it is imposed, and all times and under any circumstances,
whoever the possessor may be, to the Liability is regardless of
usufructuary provided the rights of the latter based on lack the degree of regardless of its location or
are not impaired. (NCC, Art. 689) fulfillment of the obligation for whose security Basis surroundings
it was constituted. There was no voluntary of proper care care or skill
easement in this case because at the time the or diligence. exercised to
NOTE: Consent of both the naked owner and avoid the b. Nuisance per accidens That kind of
water pumps were constructed, the subject lot nuisance by reason of location,
the beneficial owner is necessary for the injury
where the water pumps were constructed and surrounding or in a manner it is
creation of perpetual voluntary easement. (NCC,

279 UNIVERSITY OF SANTO TOMAS 280

2021 GOLDEN NOTES
 Civil Law
conducted or managed It is an act,
occupation, or structure that may
become a nuisance by reason of
circumstances, location, or
surroundings;
c. Temporary That kind which if
properly attended does not constitute
a nuisance;
d. Permanent That kind which by
nature of structure creates a
permanent inconvenience;
e. Continuing That kind which by its
nature will continue to exist
indefinitely unless abated;
f. Intermittent That kind which recurs
off and on and may be discontinued
anytime;
g. Attractive Nuisance One who
maintains on his premises
dangerous instrumentalities
appliances of a character likely to
attract children in play, and who fails
to exercise ordinary care to prevent
children from playing therewith or
resorting thereto, is liable to a child of
tender years who is injured thereby,
even if the child is technically a
trespasser in the premises.
Nuisance per se vs. Nuisance per accidens
PER SE PER ACCIDENS
As a matter of
As a matter of fact.
law.
Depends upon its location
Need only be
and surroundings, the
proved in any
manner of its conduct or
locality.
other circumstances.
May be May be abated only with
summarily reasonable notice to the
abated under person alleged to be
the law of maintaining or doing such
necessity. nuisance.
NOTE: The abatement of a nuisance without
judicial proceedings is possible only if it is a
nuisance per se. A gas station is not a nuisance
per se or one affecting the immediate safety of
persons or property. Hence, it cannot be closed
down or transferred summarily to another
location. (Parayno v. Jovellanos, G.R. No. 148408,
July 14, 2006)
Q: Boracay West Cove, applied for a zoning
compliance covering the construction of a
three-storey hotel over a parcel of land in
Malay. The Zoning Administrator denied the
application on the ground that the proposed
ld
ordering the closure and demolition of
Cove countered that the hotel cannot
summarily be abated because it is not a
nuisance per se. Is the hotel classified as a
nuisance per se?
A: NO.
conditions. The hotel cannot be considered as a
nuisance per se since this type of nuisance is
generally defined as an act, occupation, or
structure, which is a nuisance at all times and
under any circumstances, regardless of location
or
or particular incident its location and not its
inherent qualities that rendered it a nuisance.
Otherwise stated, had it not been constructed in
the no build zone, Boracay West Cove could
have secured the necessary permits without
issue. (Aquino v. Mun.of Malay Aklan, G.R. No.
211356, September 29, 2014)
ATTRACTIVE NUISANCE
One who maintains on his premises dangerous
instrumentalities or appliances of a character
likely to attract children in play, and who fails
to exercise ordinary care to prevent children
from playing therewith or resorting thereto, is
liable to a child of tender years who is injured
thereby, even if the child is technically a
trespasser in the premises. (Jarco Marketing
Corp. v. CA, G.R. No. 129792, December 21, 1999)
Basis for liability
The attractiveness is an invitation to children.
Safeguards to prevent danger must therefore be
set up.
Elements of attractive nuisance
1. It must be attractive; and
2. Dangerous to children of tender years.
Q: Is a swimming pool an attractive
281
Property
nuisance?
A:
GR: A swimming pool or water tank is not an
attractive nuisance, for while it is attractive, it is
merely an imitation of the work of nature.
Hence, if small children are drowned in an
attractive water tank of another, the owner is
not liable even if there be no guards in the
premises. (Hidalgo Enterprises v. Balandan, et.
al, G.R. No. L-3422 June 13, 1952)
XPN: Swimming pool with dangerous slide
characteristics
NOTE: The doctrine of attractive nuisance does
not generally apply to bodies of water, artificial
as well as natural in the absence of some
unusual condition or artificial feature other
than the mere water and its location.
PUBLIC NUISANCE AND PRIVATE NUISANCE
Remedies against public nuisances
1. Prosecution under the RPC or any local
ordinance;
2. Civil action; or
3. Abatement, summarily and without judicial
proceeding. (NCC, Art. 699)
NOTE: A private person may file for a civil
action against a public nuisance if the latter is
injurious to him. Thus, insofar as he is
concerned, the nuisance becomes a private
nuisance which affects him in a special way,
different from that sustained by the public in
general.
Remedies against private nuisances
1. Civil action; or
2. Abatement, summarily and without judicial
proceedings. (NCC, Art. 705)
NOTE: Any person injured by a private
nuisance may abate it by removing, or if
necessary, by destroying the thing which
constitutes the nuisance, without committing a
breach of the peace or doing unnecessary
injury.
However, it is indispensable that the procedure
for extra-judicial abatement of a public
nuisance by a private person be followed. (NCC,
Art. 706)
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
Every successive owner or possessor of
property who fails or refuses to abate a
nuisance in that property started by a former
owner or possessor is liable therefor in the
same manner as the one who created it. (NCC,
Art. 696)
Extra-judicial abatement (2002 BAR)
Requisites of extra-judicial abatement (BAR
VID)
1. The nuisance must be especially Injurious
to the person affected;
2. No Breach of peace or unnecessary injury
must be committed;
3. Demand must first be made upon the
owner or possessor of the property to abate
the nuisance;
4. Demand is Rejected;
5. Abatement is Approved by the district
health officer and executed with the
assistance of the local police; and
6. Value of the destruction does not exceed
P3,000
NOTE: Abatement is the exercise of police
power which includes the right to destroy
property regarded as a public health or safety,
and there is no obligation to give compensation.
An extra-judicial abatement can only be applied
for if what is abated is a nuisance per se and not
nuisance per accidens.
Liability for damages in case of extrajudicial
abatement of nuisance
The private person or a public official
extrajudicially abating a nuisance is liable for
damages to the owner othe thing abated, if he
causes unnecessary injury or if an alleged
nuisance is later declared by courts to be not a
real nuisance. (NCC, Art. 707)
NOTE: The right to question the existence of a
nuisance does not prescribe; it is
imprescriptible.
Q: Respondent Ernesto Lardizabal (Ernesto)
filed a complaint for demolition, before the
City Engineer's Office of Baguio City (City
Engineer's Office), questioning the ongoing
construction of a residential structure and
garage extension by petitioners on a parcel
of land. Upon investigation, the City
282
 Civil Law Property
Engineer's Office found out that the 1. Occupation; 1. Real Or Actual Tradition This succession where inheritance is
construction had no building permit. 2. Law; contemplates the actual delivery of the transferred upon death of the
Consequently, the City Mayor issued 3. Donation; thing from the hand of the grantor to the decedent.
Demolition Order No. 5. Aggrieved, 4. Tradition; hand of the grantee if the thing is a
petitioners moved for a reconsideration of 5. Intellectual creation; personality. If it is a realty, it is manifested g. Quasi-Tradition It consists in the
DO No. 05, but was denied by the City Mayor. 6. Prescription; or by certain possessory acts executed by the delivery of incorporeal property like
Thus, they were prompted to file a 7. Succession; grantee with the consent of the grantor rights and credits done through the (a)
complaint for injunction and prohibition such as by taking over the property; by placing titles of ownership in the
with the RTC. Should DO No. 5 be enjoined? NOTE: Registration of a property does is not a entering it and occupying it. hands of the grantee or his
mode of acquiring ownership. It merely representative; or (b) by allowing the
A: YES. The following shall be subject for 2. Constructive Tradition The delivery of the grantee to make use of the rights with
summary Eviction: (1) New squatter families a property with notice to the whole world. thing is not actual but representative or the consent of the grantor
whose structures were built after the affectivity (Bautista v Dy Bun Chin, 49 O.G. 179) symbolical in essence. But must be the
of RA 7279; and (2) Squatter families identified intention to deliver the ownership. OCCUPATION
by the LGU in cooperation with the Presidential Classification of modes of acquiring
Commission of the Urban Poor (PCUP), ownership a. Traditio symbolica it consists in the Occupation is the acquisition of ownership by
Philippine National Police (PNP) and accredited delivery of certain symbols or things seizing corporeal thing that have no owner,
Urban Poor Organization (UPO) as professional 1. Original Those which do not arise or representing the thing being delivered made with the intention of acquiring them, and
squatters or members of squatting syndicates depend upon any pre-existing right or title such as keys or titles accomplished according to legal rules. (Paras,
as defined in the Act. In this case, petitioners of another person: 2008) (1997, 2007 BAR)
cannot be considered as new squatters, since, b. Traditio Instrumental It consists in
although their structures were built after March a. Occupation (NCC, Art. 713); the delivery of the instrument of Requisites of occupation
28, 1992, they or their predecessors-in-interest b. Intellectual Creation (NCC, Art. 721); conveyance to the grantee by the
had occupied, and were claimants of the subject and grantor 1. There must be Seizure of a thing;
property long before the said date. Neither have c. Acquisitive Prescription. (NCC, Art. 2. Which must be a Corporeal personal
they been identified by the LGU as professional 1106) c. Traditio Longa Manu It consists in property;
squatters nor members of a squatting syndicate. the pointing of the thing (movable 3. Which must be Susceptible of appropriation
Thus, since petitioners do not fall under the 2. Derivative Are those which arise or property) within sight, by the grantor by nature;
coverage of the said IRR, the issuance of DO No. depend upon a pre-existing or preceding to the grantee but which at the time of 4. The thing must be Without an owner; and
05 had no legal basis at the onset. right or title of another person: the transaction, the thing could not be 5. There must be an Intention to acquire
placed yet in the possession of the ownership.
MODES OF ACQUIRING OWNERSHIP a. Law; e.g. hidden treasure (NCC, Art. grantee.
438), improvements on the land of Occupation vs. Possession
Mode v. Title another (NCC, Art. 445), alluvium (NCC, d. Traditio Brevi Manu It consists in the
Art. 457), abandoned riverbeds (NCC, BASIS OCCUPATION POSSESSION
MODE TITLE Art. 461), falling fruits into the possession over the thing delivered Merely raises
Directly and Serves merely to give tenement of another (NCC, Art. 681) but now under a title of ownership. the
immediately produces the occasion for its b. Donation (Art. 725) This is exemplified in the case of a presumption
a real right. acquisition or c. Succession mortis causa (NCC, Art. lessee who had purchased the As regards Mode of
of ownership
774); and property leased to him and thereafter acquisition acquiring
existence. when
d. ivery) as a consequence continues to possess it as the owner of ownership ownership.
Cause Means exercised in
Proximate cause Remote cause thereof the concept of
partnership, mutuum, assignment owner.
Essence of the right Means whereby that
barter. Pure tradition does not transfer e. Traditio Constitutum Possessorium It
which is to be created essence is transmitted. Involves only
ownership such as in deposit or As to
or transmitted. corporeal Any kind of
commodatum. (Pineda, 2009) possession of the property he had sold property
personal property.
to another person, and his present involved
Mode it is a way or process of acquiring or property.
TRADITION possession thereof is no longer that of
transferring ownership. The process may either As regards Requires that
an owner but under another capacity The property
be original or derivative. ownership of the object be
It is defined as legal delivery. It has a cause like a lessee, pledgee, depository, etc. may be owned
the thing by without an
which is the title by reason of which the It is the opposite of Tradicion Brevi by somebody.
Title is a jural act or deed which is not another owner.
delivery was made. It always produces an effect Manu.
sufficient by itself to transfer ownership. There must be
the acquisition of ownership by the person to As regards May be had in
an intent to
whom the delivery is made. f. Tradicion By Operation of Law It the intent to the concept of
Modes of acquiring ownership (OLD TIPS) acquire
consists in the delivery of the thing by acquire a mere holder.
(2007 BAR) ownership.
Classes of Tradition operation of law such as the intestate

283 UNIVERSITY OF SANTO TOMAS 284

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 Civil Law Property
May not take escaped become res nullius again. Longer period of NOTE: Future property means anything which
May exist Shorter period.
As regards place without possession is required. the donor cannot dispose of at the time of the
without
possession some form of Straying Domesticated Animals donation. (NCC, Art. 751) (2009 BAR)
occupation.
possession. DONATION
Generally, Domesticated animals, if they got strayed and XPN: In donation propter nuptias, however, the
As to period Short duration.
longer. were caught by another, the owner may still Donation is an act of pure liberality whereby a Family Code allows a donation of future
As to leading claim them from the captor within 20 days person disposes gratuitously of a thing or right property between future spouses.
Cannot lead to May lead to reckoned from the date of occupation by the
to another in favor of another who accepts it. (NCC, Art.
another mode another mode- latter. Failure to do so, they shall belong to the Donation of future inheritance or the
mode of 725)
of acquisition. prescription.
acquisition captor who kept them. inchoate right to inherit
Requisites of donation (ACID)
Things susceptible of occupation Domesticated as distinguish from Domestic Future inheritance or the inchoate right to
Animals 1. Donor must have Capacity to make the inherit cannot be donated because it is future
1. Things that are without an owner Res donation; property.
nullius; abandoned; Domesticated animals are wild animals but 2. He must have donative Intent (animus
after capture had been tamed and become donandi); Q: May a property, the acquisition of which
NOTE: Stolen property cannot be subject of accustomed and friendly to people. On the other 3. There must be Delivery in certain cases; and is subject to suspensive condition, be
occupation. hand, Domestic Animals or tame animals are 4. Donee must Accept or consent to the donated?
those born, bred and raised under the care of donation during the lifetime of the donor
2. Animals that are the object of hunting and men. and of the donee in case of donation inter A: YES, because once the condition is fulfilled, it
fishing (NCC, Art. 713); vivos (NCC, Art. 746); whereas in case of retroacts to the day the contract is constituted.
Q: When can land be the object of donation mortis causa, acceptance is made [NCC, Art. 1187(1)]
3. Hidden treasures Only if the there is no occupation?
known owner thereof. This is possible only a will. (NCC, Art. 728) Donation of ownership and usufruct
if the treasure is found in places or things A: It depends.
without owners (NCC, Art 718); Essential features or elements of a true Ownership and usufruct of a property may be
1. If without an owner, it pertains to the State donation donated to different persons separately.
4. Abandoned movables A thing is (Regalian Doctrine). However, all the donees are required to be
abandoned when: 1. Alienation of property by the donor during living at the time of donation. (NCC, Art. 756)
2. If abandoned and the property is private, it his lifetime, which is accepted;
a. The expectation to recover is gone can be the object of occupation. 2. Irrevocability by the donor of the donation; Limitation on the amount that can be
(spes recuperandi); and 3. Animus Donandi (donative intent); and donated
3. And if the land does not belong to anyone, it 4. Consequent impoverishment of the donor
b. The intent to return or have it is presumed to be public. (diminution of his assets). 1. If the donor has forced heirs, he cannot give
returned is given up (spes rivertandi). or receive by donation more than what he
Ownership of land cannot be acquired by can give or receive by will;
CHARACTERISTICS
5. Swarm of bees that has escaped from its occupation
owner, under certain conditions (NCC, Art. 2. If the donor has no forced heirs, donation
When the land is without owner, it pertains to EXTENT TO WHICH DONOR MAY may include all present property provided
716);
the State. The State need not acquire abandoned DONATE PROPERTY he reserves in full ownership or in usufruct:
6. Domesticated animals that have escaped lands by occupation because once the requisites
from their owners, under certain conditions of abandonment had been fulfilled; It may comprehend all the present property of a. The amount necessary to support him
(NCC, Art. 716); automatically, the reversion operates. (Pineda, the donor, or part thereof, provided he and those relatives entitled to support
2009) reserves, in full ownership or in usufruct, from him;
7. Transfer of pigeons to another breeding sufficient means for the support of himself, and b.
place without fraud or artifice (NCC, Art. Abandoned land (one with an owner before) of all relatives who, at the time of the debt contracted prior to the donation.
717); and becomes patrimonial land of the State acceptance of the donation, are by law entitled
susceptible of acquisition thru acquisitive to be supported by the donor. (NCC, Art. 750) NOTE: The limitation applies only to simple,
8. Transfer of fish to another breeding place prescription. (Paras, 2008) remunerative, and modal donations but not to
without fraud or artifice. (NCC, Art. 717) Future properties as subject of donation onerous ones, which are governed by the law
Prescription vs. Occupation (2003 BAR) on contracts. (De Leon, 2006)
Acquisition of ownership over a wild animal
by occupation PRESCRIPTION OCCUPATION Future properties cannot be subject of RESERVATIONS AND REVERSIONS
Derivative mode Original mode donations. Donations cannot comprehend
Wild animals are considered res nullius when somebody else was the no previous future properties.
Effect if the donor violates the requirement
not yet captured. After its capture, animals that owner. owner. for reservation under NCC, Art. 750

285 UNIVERSITY OF SANTO TOMAS 286

2021 GOLDEN NOTES
 Civil Law Property
A donation where the donor did not reserve demandable debt. entitled to be supported by him (NCC, Art. NOTE: It partakes of the nature of testamentary
property or assets for himself in full ownership Remuneratory (Second kind) 750); provisions and governed by the rules on
or in usufruct sufficient for his support and all 1. Consideration succession. (NCC, Art. 728)
relatives legally dependent upon him is not for future 2. Donation cannot comprehend Future
void. It is merely reducible to the extent that the services; or property except donations between future Donation mortis causa must comply with the
support to himself and his relatives is impaired 2. Donor imposes 1. Onerous Same husband and wife (FC, Art. 84); and formalities prescribed by law for the validity
or prejudiced. (Pineda, 1999) certain form of that of of wills
conditions, contracts. 3. No person may give by way of donation
Reversion in donation limitations or 2. Gratuitous Same More than he may give by will. Donation mortis causa must comply with the
charges upon form of that of formalities prescribed by law for the validity of
It is a condition established in the deed of the donee, donations. Some inter vivos donations wills, otherwise, the donation is void and would
donation which has for its effect the restoration whose value is produce no effect. That the requirements of
or return of the property donated to the donor inferior to the The following donations have been held to be attestation and acknowledgment are embodied
or his estate or in favor of other persons who donation given. inter vivos: in two separate provisions of the Civil Code
must be living at the time of the donation for Onerous (Articles 805 and 806, respectively) indicate
any cause or circumstances. (NCC, Art. 757) Imposes upon the 1. A donation where the causes of revocation that the law contemplates two distinct acts that
donee a reciprocal have been specified; serve different purposes. An acknowledgment
NOTE: If the reversion is in favor of other obligation; Burdens, is made by one executing a deed, declaring
persons who are not all living at the time of the Same as that of before a competent officer or court that the
charges or services 2. A donation where the donor reserved for
donation, the reversion stipulated shall be void, contracts. deed or act is his own. On the other hand, the
are equal or greater himself a lifetime usufruct of the property,
but the donation shall remain valid. in value to that of the for if he were still the owner, there would attestation of a will refers to the act of the
donation. be no need of said reservation; instrumental witnesses themselves who certify
KINDS OF DONATION to the execution of the instrument before them
Kinds of donation according to perfection or 3. A donation where the donor warrants the and to the manner of its execution. (Echavez v.
1. According to motive or cause: extinguishment title to the thing which he is donating DCDC, G.R. No. 192916, October 11, 2010)
a. Simple; there would be no need of warranty if he is
1. Pure donation It is one which is not not transferring the title; Some mortis causa Donations
b. Remuneratory (1st kind);
subject to any condition;
c. Remuneratory (2nd kind): Conditional 4. Where the donor immediately transferred The following have been held to be mortis
or Modal donations; or the ownership, possession and causa:
2. Conditional It is one wherein the donor
d. Onerous donations. administration of the property to the donee,
imposes on the donee a condition
dependent on the happening of a future but stipulated that the right of the donee to 1. Where the donor has reserved (expressly or
2. As to perfection or extinguishment: harvest and alienate the fruits would begin impliedly) the option to revoke the
event or past event unknown to the parties;
a. Pure; donation at any time before death, even
and
b. With a condition; or had been transferred in the meantime was without the consent of the donee;
c. With a term. only the administration of the property, the 2. Where the donation will be void if the
3. With a Term It is one wherein the donor
imposes on the donee a condition donation is mortis causa); transferee dies ahead of the transferor.
3. According to effectivity: 3.
dependent upon the happening of a future
a. Inter vivos (NCC, Art. 729); 5. Where the donor stated that while he is his will;
and certain event.
b. Mortis causa (NCC, Art. 728); or alive, he would not dispose of the property 4. If the donor retains full or naked ownership
c. Propter nuptials. and control over the property while he is
Effect of illegal or impossible conditions because I am
reserving it to him (the donee) upon my still alive;
Kinds of donation according to motive or death inter vivos 5. If what was in the meantime transferred to
Like in testamentary dispositions (Art. 873),
cause because in effect, he had already renounced the done was merely the administration of
only the illegal or impossible conditions are
disregarded. The donation itself remains valid. the right to dispose of his property); and the property; and
PURPOSE FORM 6. death.
Simple (2007 BAR) 6. A donation where the donees should not as
Same to that of forms DONATION INTER VIVOS
Pure liberality yet get the possession until our demise Donation inter vivos vs. Donation mortis
in donations. administration remaining with the donor causa
Remuneratory (First kind) (2007 BAR) It is a donation which takes effect during the
spouses, or either one surviving.
To reward past lifetime of the donor.
INTER MORTIS
merits, services BASIS
DONATION MORTIS CAUSA VIVOS CAUSA
rendered by the Same to that of forms Limitations imposed by law in making
Takes effect
donee to the donor in donations. donations inter vivos Takes effect
These are donations which are to take effect As to when it during the
provided the same do takes effect lifetime of
1. Donor must Reserve sufficient means for upon the death of the donor. death.
not constitute a the donor,
his support and for his relatives who are

287 UNIVERSITY OF SANTO TOMAS 288

2021 GOLDEN NOTES
 Civil Law Property
independentl the doubt should be resolved in favour of HOW MADE AND ACCEPTED Donation is perfected from the moment the
y of his death. donation inter vivos, rather than mortis causa to donor knows of the acceptance by the donee.
In avoid uncertainty as to the ownership of the Persons who must accept the donation (NCC, Art. 734)
contemplatio property subject of the deed of donation.
The donee must accept the donation personally, The donation is perfected, not from the time of
As to cause death ONEROUS DONATIONS (2007 BAR) or through an authorized person with a special acceptance but from the time of knowledge by
Cause is the donor that the donee has accepted (the
or without power for the purpose, or with a general and
consideratio intention to Onerous donation is a donation given for which sufficient power, otherwise, the donation shall knowledge may of course be actual or
generosity.
n dispose of the donor received a valuable consideration be void. (NCC, Art. 745) (2010 BAR) constructive). If there is no acceptance, the
the thing in which is the equivalent of the property so donation will be null and void.
case of donated. (Pineda, 2009) Reason for the need for an acceptance
survival. FORMALITIES FOR DONATION OF
Valid if donor Samples of Onerous Donations Because the donee may not want to accept the REAL/PERSONAL
On Void if donor
survives the
predecease survives.
done. Where the condition is to take care of the may not agree with the burden imposed. Formalities required for donation
Always (Carlos v. Ramil,
Generally
revocable at G.R. No. 6736, September 5, 1911); or where the Rule prior to knowledge of acceptance 1. As regards movable property: (1998,
irrevocable
any time and donee 2000, 2007 BAR)
On except for
for any expenses. Thus, even if real property is a. With simultaneous delivery of
revocability grounds
reason before involved, it is not essential to have a public property donated:
provided for
by law. instrument. (Manalo v. De Mesa, G.R. No. L-9449, Prior to learning of the acceptance, there is as i. For P5,000 or less May be
death. February 12, 1915) yet no perfected donation (no donation at all), oral/written
Must comply Must comply hence, the donor may give the property to ii. For more than P5,000 Written
On with the with the Kinds of onerous donations somebody else, for he has not really parted with in public or private document
formalities formalities of formalities of the disposition of the property.
donations. a will. 1. Totally onerous When the burden is equal b. Without simultaneous delivery:
Acceptance to or greater than the value of the property When the donation and the acceptance are i. The donation and acceptance
On when
during donated; and in the same instrument must be written in a public or
acceptance
death. 2. Partially onerous When the burden is less private instrument (Statute of
is made
lifetime. than the value of the donation (Pineda, If the donation and the acceptance are in the Frauds), regardless of value.
Property 1999). same instrument, containing the signatures of Otherwise, donation is
On when Property
retained by both donor and donee, it is understood that unenforceable.
property is completely
the donor Laws that apply to onerous donations there is already knowledge of the acceptance,
conveyed to conveyed to
while he is hence, the donation is already perfected. 2. As regards immovable property: (1993,
the done the done.
still alive. 1. Totally onerous Rules on contracts. 2000, 2010 BAR)
On tax 2. Partially onerous Donations made to incapacitated persons a. Must be in a public instrument
Estate tax
payable a. Portion exceeding the value of the specifying
burden simple donations; and Donations made to incapacitated persons shall i. The property donated; and
Test in Determining Whether the Donation b. Portion equivalent to the burden law be void, though simulated under the guise of ii. The burdens assumed by the
is Mortis Causa or Inter Vivos on contracts. (Pineda, 1999) another contract or through a person who is done.
interposed. (NCC, Art. 743)
What is controlling is the nature of the act and Rules of contract govern the onerous portion of b. Acceptance may be made:
its effectivity. If the act is one of disposition, and donation; rules of donation only apply to the Persons who must accept the donation made i. In the same instrument; or
excess, if any. Since the donation imposed on in favor of a minor ii. In another public instrument,
is a donation inter vivos. If it is one of the donee the burden of redeeming the notified to the donor in authentic
deposition, but its effectivity is dependent upon property for value, the donation was onerous. If the donation is pure and simple and does not form, and noted in both deeds.
the death of the donor, it is a mortis causa As an endowment for a valuable consideration, require written acceptance, the minors can Otherwise, donation is void.
donation. it partakes of the nature of an ordinary accept the donation by themselves.
contract; hence, the rules of contract will Q: The Roman Catholic Church accepted a
NOTE: The title given to a deed of donation is govern and Art. 765 of the New Civil Code finds If the donation needs written acceptance, it may donation of a real property located in Lipa
NOT a determinative factor which makes the no application with respect to the onerous be accepted by their guardian or legal City. A deed of donation was executed,
donation inter vivos or mortis causa what is portion of the donation. Insofar as the value of representatives. (NCC, 741) signed by the donor, Don Mariano, and the
controlling is the provision stated in the deed the land exceeds the redemption price paid for donee, the Church, as represented by Fr.
and must be read in its entirety. by the donee, a donation exists, and the legal PERFECTION OF DONATION Damian. Before the deed could be notarized,
provisions on donation apply. (Calanasan v. Sps. Don Mariano died. Is the donation valid?
If there is doubt on the nature of the donation, Dolorito, G.R. No. 171937, November 15, 2013) (2014 BAR)

289 UNIVERSITY OF SANTO TOMAS 290

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 Civil Law
A: The donation is VOID. The donation of an
immovable property must be in a public
instrument in order for it to be valid. In this
case, the donor died even before the
notarization of the deed of donation. Hence, it
does not satisfy the requirement of being in a
public instrument for the donation to be valid.
QUALIFICATIONS OF DONOR/DONEE
DONOR
Any person who has capacity to contract and
capacity to dispose of his property may make a
donation. (NCC, Art. 735) His capacity shall be
determined as of the time of the making of
donation. (NCC, Art. 737)
make donations
refers to natural and artificial persons with
legal personalities. With respect to artificial
persons, they must be authorized by their
Articles to donate.
NOTE:
to mean perfection of the donation, otherwise if
some cases be inconsistent with Art. 734 which
moment the donor knows of the acceptance by
may be stated
perfected, both the donor and the donee must
Status of a donation made by an
incapacitated person
Following the laws in contracts (which are of
suppletory application to simple donations)
said donations should be merely considered
voidable. The same answer should be given in
case there was vitiated consent (as in the case
of fraud or intimidation).
Q: May an emancipated minor by himself
make donation mortis causa?
A: YES, because at the age of 17, a person of
sound mind can already make a valid will.
Donation by a guardian or trustee
Guardians and trustees may of course donate
their own properties, unless they are otherwise
disqualified by the law, but not the property
291
entrusted to them, for the simple reason that
they are not the owners thereof.
guardian
It is believed that such a donation, if made in
other hand, if made by the guardian in the name
of, and with the consent of the ward, it would be
valid provided judicial permission is obtained.
This is particularly true if the donation benefits,
in some way, the ward.
NOTE: When the donation is clearly in the
interest of the beneficiaries, it would be
contrary to the spirit and intent of the law to
say it cannot be done.
DONEE
All those who are not specially disqualified by
law.
Q: May an unborn child be a donee or a
donor?
A: An unborn child may be a donee but not a
donor.
As a donee, donations made to conceived and
unborn children may be accepted by those
persons who would legally represent them if
they were already born. (NCC, Art. 742)
NOTE: If the conceived child did not become a
person, the donation is null and void. An
unborn child cannot be a donor because it is
essential for a person to be able to make a
donation, he must have full civil capacity.
accept a donation
does not refer to those
incapacitated to contract like minors or those of
unsound mind, but to people such as those
mentioned in Art. 739 and husbands and wives
with respect to immoderate donations from
each other (donations of spouses inter se).
Natural and juridical persons may be donees
Since the law does not distinguish, both natural
and juridical persons may become donees. An
unregistered partnership may become a donee
Property
because it is a juridical or artificial person
despite its non-registration. But the conjugal
partnership itself, not being natural or juridical,
cannot be a donee. Instead, the donation should
be given by the stranger to the husband and
wife, the share of the husband being credited to
his capital, and that of the wife being
considered part of her paraphernal property.
EFFECT OF DONATION/LIMITATIONS
IN GENERAL
Rights and actions the donee acquires
The donee is subrogated to the rights and
actions which in case of eviction would pertain
to the donor.
Liability of donors for eviction of hidden
defects
1. If the donation is simple or remunerative,
donor is not liable for eviction or hidden
defects because the donation is gratuitous,
unless the donor acted in bad faith; and
2. If the donation is onerous, the donor is
liable on his warranty against eviction and
hidden defects but only to the extent of the
burden.
Rules regarding the liability of the donee to
pay the debts of donor
1. Where donor imposes obligation upon the
donee, (NCC, Art. 758) the donee is liable:
a. To pay only debts previously
contracted; and
b. For debts subsequently contracted
only when there is an agreement to
that effect.
NOTE: But he is not liable for debts in
excess of the value of donation
received, unless the contrary is
intended.
2. Where there is no stipulation regarding the
payment of debts (NCC, Art. 759):
a. Donee is generally not liable to pay
b. Donee is responsible only if donation
has been made in fraud of creditors;
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
and
NOTE: The presumption that the
donations was made in fraud of
creditors arises when the donor has
not left sufficient assets to pay his
debts, at the time of donation.
c. The donee shall not be liable beyond
the value of donation received.
DOUBLE DONATIONS
There is double donation when the same thing
has been donated to two or more persons.
The rule on double sale under Art. 1544 of NCC
shall be applicable.
Rule: First in time, stronger in right
1. If movable, one who first takes possession
in good faith.
2. If immovable, one who first recorded in the
registry of property in good faith.
If no inscription, one who first took possession in
good faith.
In absence thereof, one who can present oldest
title.
EXCESSIVE/INOFFICIOUS
Rule in case of an excessive or inofficious
donation
1. A donor may not donate more than what he
can give by will. If he donates more than
what he cannot give by will, the donation
will become excessive and to insist on it, the
legitime of the compulsory heirs will be
impaired. Legitime is reserved for the
compulsory heirs and the same cannot be
impaired or disposed of by the testator; and
2. The donee cannot receive by way of
donation more than what he may receive by
will. If the donee can receive by donation
(devise or legacy) more than what the
testator is allowed by law to give, the
donation is inofficious and it may be
suppressed totally or reduced as to its
excess.
292
 Civil Law
IN FRAUD OF CREDITORS
Remedy in case of donations executed in
fraud of creditors
The creditors may rescind the donation to the
extent of their credits. The action is known as
accion pauliana. (NCC, Art. 1381)
NOTE: If the donor did not reserve enough
assets to pay his creditors whom he owed
before the donation, the donation is presumed
to be in fraud of creditors.
VOID DONATIONS
Donations prohibited by law (1990, 2000
BAR) (LAW SCRA POP)
Prohibition on donation inter vivos
1. By persons guilty of Adultery or
concubinage at the time of donation (NCC,
Art. 739);
The action for declaration of nullity may be
brought by the spouse of the donor or
donee; and the guilt of the donor and donee
may be proved by preponderance of
evidence. (NCC, Art. 739)
2. Those made between persons found guilty
of the same Criminal offense, in
consideration thereof (NCC, Art. 739);
NOTE:
concubinage and adultery.
3. Those made to a public Officer or his wife,
descendants and ascendants, by reason of
his office;
Relative Incapacity to Succeed:
4. By individuals, associations or corporations
not permitted by Law to make donations
(NCC, Art. 1027);
5. By a Ward to the guardian before the
approval of accounts (NCC, Art. 1027);
6. By Spouses to each other during the
marriage or to persons of whom the other
spouse is a presumptive heir (FC, Art. 87);
7. To Relatives of such priest, etc. within the
fourth degree, or to the church to which
such priest belongs (NCC, Art. 1027);
293
8. To an Attesting witness to the execution of
donation, if there is any, or to the spouse,
parents or children or anyone claiming
under them (NCC, Art. 1027);
9. To the Priest who heard the confession of
the minister of the gospel who extended
spiritual aid to him during the same period
(NCC, Art. 1027); or
10. To a Physician, surgeon, nurse, health
officer or druggist who took care of the
donor during his/her last illness. (NCC, Art.
1027)
REVOCATION OR REDUCTION
(1991, 2003, 2006 BAR)
GROUNDS FOR REVOCATION
AND REDUCTION
Grounds for revocation of donation
1. Under Art. 760
a.
(legitimate, legitimated, or
illegitimate) after the donation, even
though born after his death;
b. Appearance
missing and thought to be dead by the
donor; or
c. Subsequent adoption by the donor of a
minor child.
2. Under Art. 764 When the donee fails to
comply with any of the conditions which
the donor imposed upon the donee.
3. Under Art. 765 By reason of ingratitude
a. If the donee should commit some
offense against the person, the honor
or the property of the donor, or of his
wife or children under his parental
authority;
b. If the donee imputes to the donor any
criminal offense, or any act involving
moral turpitude, even though he
should prove it, unless the crime or act
has been committed against the donee
himself, his wife or children under his
authority; or
c. If he unduly refuses him support when
the donee is legally or morally bound
Property
to give support to the donor.
NOTE: The list of grounds for
revocation by reason of ingratitude
under Art. 765 is exclusive.
Grounds for reduction of donation
The same grounds for revocation under Art.
760. The donation shall be reduced insofar as it
exceeds the portion that may be freely disposed
of by will, taking into account the whole estate
of the donor at the time of the birth,
appearance, or adoption of a child. (NCC, Art.
761)
Revocation of perfected donations
Once a donation is perfected, it cannot be
revoked without the consent of the donee
except on grounds provided by law. (NCC,
Articles 760, 764 and 765)
Revocation or reduction is NOT automatic.
The emergence of the circumstances
enumerated in Art. 760 do not automatically
revoke or reduce the donation. The revocation
or reduction is authorized only if the amount or
value of the property donated exceeds the
disposable free portion.
Q: For purposes of prescription of action,
what is the rule in case of concurrence of
two or more grounds for revocation or
reduction?
A: In the event that two or more causes are
present, the earliest among them shall be the
starting point in the reckoning of the period of
prescription of the action. (Pineda, 2009)
Execution of a donation subject to a
condition
A donor may execute a donation subject to a
condition, the non-fulfilment of which
authorizes the donor to go to court to seek its
revocation (not reduction).
Revocation of donation in a conditional
donation
A donor cannot revoke a conditional donation
unilaterally, that is, without going to court, even
if the donee had breached any of the obligations
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
imposed in the donation. A judicial action is
essential if the donee refuses to return the
property, or pay its value to the donor, or to
must be filed within the prescriptive period
fixed by law, otherwise, it will be barred. (De
Luna vs. Abrigo, GR No. L-57455, January
18,1990)
The breach of the condition in the donation
causes the automatic revocation. All the donor
has to do is to formally inform the donee of the
revocation. Judicial intervention only becomes
necessary if the donee questions the propriety of
the revocation. Even then, judicial intervention
is required to merely confirm and not order the
revocation. Hence, there can be no 10-year
prescriptive period to file an action to speak of.
When the donee does not contest the revocation,
no court action is necessary. (Province of
Camarines Sur vs Bodega Glassware, G.R. No.
194199, March 22,2017)
Q: Can the creditors of the deceased file an
action for reduction of inofficious donation?
A: NO. Only compulsory heirs or their heirs and
successors in interest may sue for reduction of
inofficious donations. The remedy of the
creditor is to sue, during the lifetime of the
donor, for the annulment of inofficious
donation made in fraud of creditors (NCC, Art.
1387); or they can go against the estate of the
deceased and not against the donees.
EFFECTS OF REVOCATION OR REDUCTION
OF DONATION
Obligations of the donee upon the revocation
or reduction of donation
1. Return the thing or the object of the
donation;
2. If the property had already been alienated
and could not be recovered anymore, its
value shall be paid to the donor. The value
shall be the price of the property estimated
at the time of the perfection of the donation;
and
3. If the property had been mortgaged, the
donor may pay the mortgage obligations,
subject to reimbursement by the donee.
(NCC, Art. 762)
Obligation of the donee to return the fruits
294
 Civil Law Property
1. If due to non-compliance with any condition year prescriptive period? exclusive.
imposed on the donation Fruits acquired
after non-compliance shall be returned; and A: The right of action to revoke or reduce is NOTE: The rationale behind the article is that a
transmitted to his heirs. (Pineda, 1999) person who has been favored with kindness
2. If due to causes stated under Art. 760, and generosity has the moral obligation to be
ingratitude, or inofficious donations fruits Q: Jose, single, donated a house and lot to his and remain grateful to the benefactor. It is a
acquired from the time the complaint is only niece, Maria, who was of legal age and matter of tradition that generosity must not be
filed shall be returned. (NCC, Art. 768) who accepted the donation. The donation reciprocated with ungratefulness.
and Maria's acceptance thereof were
PRESCRIPTION evidenced by a Deed of Donation. Maria then Q: Suppose the husband of the donee had
lived in the house and lot donated to her, maligned the donor, is there a ground for
Period of prescription of action for religiously paying real estate taxes thereon. revocation by reason of ingratitude?
revocation or reduction of donation Twelve years later, when Jose had already
passed away, a woman claiming to be an A: None. The act must be imputable to the
BASIS PRESCRIP RECKONING illegitimate daughter of Jose filed a donee himself and not to another. (Pineda,
TIVE PERIOD complaint against Maria. Claiming rights as 1999)
PERIOD an heir, the woman prayed that Maria be
Birth of Four years From the birth of the ordered to reconvey the house and lot to Mortgages and alienations effected before
child first child. Jose's estate. In her complaint she alleged the notation of the action for revocation
that the notary public who notarized the
Legitimati Four years From birth of the
on legitimated child, Deed of Donation had an expired notarial If there are mortgages and alienations effected
not from the date of commission when the Deed of Donation was before the notation of the complaint for
executed by Jose. Can Maria be made to revocation in the Registry of Property, such
marriage of the
reconvey the property? What can she put up alienations and mortgages shall remain valid
parents.
as a defense? (2015 BAR) and must be respected. (NCC, Art. 766)
Recognitio Four years From the date the
n of an recognition of the
A: NO. Maria cannot be compelled to reconvey NOTE: Alienations and mortgages after the
illegitimat child by any means
the property. The Deed of Donation was void registration of the pendency of the complaint
e child enumerated in Art.
because it was not considered a public shall be void.
712 of the Family
document. However, a void donation can trigger
Code.
acquisitive prescription. (Solis v. CA, G.R. Nos. Remedy of the donor
Adoption Four years From the date of
46753-54, August 25, 1989; Doliendo v. Biarnesa,
filing of the
G.R. No. 2765, December 27, 1906) The void If the property is already transferred in the
original petition
donation has a quality of titulo colorado enough name of the buyer or mortgagee, the remedy of
for adoption,
for acquisitive prescription especially since 12 the donor is to recover the value of the property
provided a decree
years had lapsed from the deed of donation. determined as of the time of the donation. (NCC,
of adoption is
issued thereafter. Art. 767)
Maria can set up the defense that the action has
Appearan Four years From the date an
prescribed. An action for revocation of the Waiver of actions to revoke donations
ce of a information was
donation on the ground that it impaired the
child received as to the
legitime of a compulsory heir may only be filed The donor CANNOT make a renunciation of
believed to existence or survival
within ten (10) years from the time the cause of actions to revoke in advance. Such waiver is
be dead of the child believed
action accrues which is at the time of the death void. However, the donor may renounce an
to be dead
of Jose. The facts are not clear as to when Jose action to revoke if the act of ingratitude had
Non- Four years From the non-
died, but on the assumption that he died ten already been done.
complianc compliance with the
years prior to the filing of the action, the same
e with any condition.
has clearly prescribed.
condition
imposed
INGRATITUDE
Act of One year From the time the
ingratitud donor had learned of
e Q: Are there any other grounds for
ingratitude, it was revocation of donation by reason of
possible for him to ingratitude other than those enumerated
file an action. under Art. 765 of NCC?

Q: What if the donor dies within the four- A: NONE. The grounds under Art. 765 are

295 UNIVERSITY OF SANTO TOMAS 296

2021 GOLDEN NOTES
 Civil Law Prescription
PRESCRIPTION NOTE: The first two requisites apply to both TIME OF FILING OF TRANSMISSIBILITY OF EXTENT OF RIGHTS TO THE
ordinary and extraordinary prescription, but the THE ACTION ACTION REDUCTION FRUITS
Definition last two requisites vary for each kind. 1. Failure of the donor to reserve sufficient means for support (Art. 750)

It is the means of acquiring ownership and 2. Extinctive prescription or limitation of Any time by the Not transmissible. Donation reduced to Donee is entitled to the
other real rights or losing rights or action to actions It involves loss of property rights donor or by relatives NOTE: the duty to give extent necessary to fruits as owner of the
enforce such rights through lapse of time in the or actions through the possession by entitled to support and right to receive provide support. (NCC, property donated.
manner and under the conditions laid down by another of a thing for the period provided by support are personal. Art. 750) (NCC, Art. 441)
law. law or failure to bring the necessary action lifetime. (NCC, Art. (FC, Art. 195)
the period 750)
NOTE: The applicability of prescription is a fixed by law. Rights and actions are lost by
question of fact. It is evidentiary and has to be the lapse of time. (NCC, Articles 1106 and 2. Inofficiousness for being in excess of what the donor can give by will (NCC, Art. 750, 771)
established by clear and convincing evidence. 1139)
Within five years Transmissible to Donation effective Donee appropriates
Two concepts of prescription NOTE: It is also referred to as prescription of as fruits. (NCC, Art. 441)
actions, statute of limitations, and statute of death. (NCC, Articles donation shall be lifetime subject to
1. Acquisitive prescription/ Adverse Possession repose. 771 and 1149) reduced as regards the reduction only upon his
- It is the acquisition of ownership and death with regard to the
other real rights through possession of a (NCC, Art. 771) excess. (NCC, Art. 771)
thing in the manner and under the
conditions provided for by law. 3. Birth, appearance or adoption of a child (NCC, Art. 760)

a. Ordinary acquisitive prescription- [Same as in no.1 [Same as in no. 1 [Same as in no. 1 Donee appropriates
requires possession of things in good Revocation] Revocation] Reduction] fruits not affected by
faith and with just title for the time Within four years To children & Donation reduced to reduction. (NCC, Art.
fixed by law which is 10 years; and from birth of first descendants of donor extent necessary to 441) When donation is
child, legitimation upon his death. [NCC, provide support. (NCC, revoked for any of the
b. Extraordinary acquisitive prescription- (recognition), Art. 763(2)] Art. 750) cause mentioned in Art.
the acquisition of ownership and other adoption, judicial 760, the donee shall
real rights without the need of title or declaration of not return the fruits
of good faith or any other condition filiation or receipt of except from the filing of
and would prescribe in 30 years. (De info of existence of the complaint. (NCC,
Leon, 2011) the child believed to Art. 768)
be dead. (NCC, Art.
Requisites of prescription as a mode of 763)
acquiring ownership
4. Fraud against creditors (NCC, Art. 759)
1. Capacity to acquire by prescription;
2. A thing capable of acquisition by Within four years Property returned for Fruits shall be returned
prescription; from perfection of successors-in-interest. the benefit of creditors in case donee acted in
3. Possession of the thing under certain donation or from (NCC, Art. 1178) subject to the rights of bad faith; if impossible
conditions; and knowledge by the innocent third persons. to return, indemnify
4. Lapse of time provided by law. creditor of the (NCC, Art. 1387)
donation. (NCC, Art. damages. (NCC, Art.
Mere possession with a juridical title, such as by 1389) 1388)
a usufructuary, a trustee, a lessee, an agent, or a
pledge, not being in the concept of an owner
cannot ripen into ownership by acquisitive
prescription unless the juridical relation is just Acquisitive prescription vs. Extinctive prescription
expressly repudiated as such repudiation has
been communicated to the other party. ACQUISITIVE PRESCRIPTION EXTINCTIVE PRESCRIPTION
(Esguerra v Manantan, G.R. No. 158328, February Applicable to ownership and other Applicable to all kinds of rights, whether real or
23, 2007) Applicability
real rights. personal.
Expressly vests the property and Produces extinction of rights or bars a right of
Legal effect
raises a new title in the occupant. action. Results in the loss of a real or personal

297 UNIVERSITY OF SANTO TOMAS 298

2021 GOLDEN NOTES
 Civil Law
The relationship between the
occupant and the land in terms of
possession is capable of producing
legal consequences. It is the
possessor who is the actor.
As to Possession of a claimant who is not
requisite the owner.
Can be proven under the general
As a defense issue withoutits being
affirmatively pleaded.
Prescription vs. Laches
PRESCRIPTION
Concept
One acquires ownership and other real rights
through the lapse of time in the manner and under
the action laid down by law.
As to creation
Prescription is purely statutory in origin and is
founded on ground of public policy. Time limit is
imposed for a party to enforce his claim so that
title to property and other rights will be stabilized.
It protects the person who is diligent and vigilant
in asserting his right, and conversely punishes the
person who sleeps on his right. (Fernandez v.
Cuerva, G.R. No. L- 21114 November 28, 1967)
As a defense
GR: Evidentiary in nature and requires full blown
trial.
XPNs:
1) face or
the evidence he presented shows clearly that
indeed the action has prescribed at the time
it was filed; or
2) If, before trial, a party has no means of
knowing that
lapsed, prescription as a defense may be
pleaded later as soon as the true nature of
the claim is discovered. (De Leon, 2011)
The burden of proof rests on the part claiming it.
Failure to plead constitutes as a waiver of defense
299
right or bars the cause of action to enforce said
right. One does not look to the act of the
possessor but to the neglect of the owner.
Inaction by the owner or neglect of one with a
right to bring his action.
Should be affirmatively pleaded and proved to
bar the action or claim of the adverse party.
LACHES
The failure or neglect, for an unreasonable and
unexplained length of time, to do that which by
exercising due diligence could or should have
been done earlier; it is negligence or omission to
assert a right within a reasonable time, warranting
a presumption that the party entitled to assert it
either has abandoned it or declined to assert it. It
applies even to imprescriptible actions e.g. an
action to annul a void contract may be barred by
laches.
A creation of equity which, as such, is applied not
really to penalize neglect or sleeping upon one's
right, but rather to avoid recognizing a right
when to do so would result in a clearly
inequitable situation. (Chavez v. Bonto-Perez, G.R.
No. 109808, March 1, 1995)
Evidentiary in nature and cannot be established
by mere allegations in the pleadings. The party
alleging laches must adduce in court evidence
proving such allegation. (Apo v. Sps. Roberto, G.R.
No. 198356, April 20, 2015)
Prescription
and cannot be raised for the first time on trial or
appeal.
Who may acquire by prescription (PSM)
1. Persons who are capable of acquiring
property by other legal modes;
2. State; and
3. Minors through guardians of personally.
Persons against whom prescription may run
1. Minors and other incapacitated persons
who have parents, guardians or other legal
representatives;
2. Absentees who have administrators, either
appointed by them before their
disappearance, or appointed by the courts;
3. Persons living abroad, who have managers
or administrators;
4. Juridical persons, except the State and its
subdivisions (NCC, Art. 1108); and
5. Prescription, acquisitive and extinctive,
runs in favor of, or against a married
woman. (NCC, Art. 1110) This presupposes
a situation where the parties involved are a
married woman and another person not her
husband.
Prescription may be in favor of or against the
married woman. Persons who are disqualified
from administering their property have a right
to claim damages from their legal
representatives whose negligence has been the
cause of prescription.
Things subject to prescription
All things within the commerce of men;
a. Private property; and
b. Patrimonial property of the State
NOTE: Patrimonial property of the State is the
property it owns but which is not devoted to
public use, public service, or the development
of national wealth. It is wealth owned by the
state in its private, as distinguished from its
public, capacity. (Paras, 2008)
Things not subject to prescription
1. Public domain;
2. Intransmissible rights;
3. Movables possessed through a crime; and
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
4. Registered land.
Rights not extinguished by prescription
1. Demand right of way;
2. Abate public /private nuisance;
3. To declare a contract void;
4. Recover property subject to expressed
trust;
5. Probate of a will; and
6. Quiet title.
ACQUISITIVE PRESCRIPTION
CHARACTERISTICS
Basis of acquisitive prescription
It is based on the assertion of a usurper of an
adverse right for such a long period of time,
uncontested by the true owner of the right, as
to give rise to the presumption that the latter
has given up such right in favour of the former.
(Tolentino, Civil Code of the Philippines, Vol. IV, p.
2)
Q: What are the basic requirements of
prescription as a mode of acquiring
ownership?
A:
1. Actual possession of a property, which is
susceptible of prescription;
2. Possession must be in the concept of an
owner and not that of a mere holder (NCC,
Art. 1118);
3. Possession must be public or open (NCC,
Art. 1118);
4. Possession must be peaceful (NCC, Art.
1118);
5. Possession must be continuous and not
interrupted (NCC, Art. 1118);
6. Possession must be adverse, that is,
exclusive and not merely tolerated; and
7. Possession must satisfy the full period
required by law. (Pineda, Succession and
Prescription, p. 606, 2009)
ORDINARY PRESCRIPTION
300
 Civil Law
It requires possession of things in good faith
and with just title for the time fixed by law.
Good faith
Q: When is a possessor in good faith?
A: If he is not aware of the existence of any flaw
or defect in his title or mode of acquisition
which invalidates it (NCC, Art. 526 in relation to
Art. 1128) and has reasonable belief that the
person from whom he received the thing was
the owner thereof, and could transmit his
ownership. (NCC, Art. 1127)
Q: When must good faith exist?
A: It must exist not only from the beginning but
throughout the entire period of possession
fixed by law. (Pineda Succession and
Prescription, p. 643, 2009 ed)
Just title
It means that the possessor obtained the
possession of the property through one of the
modes recognized by law for acquiring
ownership, but the transferor or grantor was
not the owner of the property or he has no
power to transmit the right. (NCC, Art. 1129)
NOTE: Just title is never presumed, it must be
proved. (NCC, Art. 1131) The title for
prescription must be true and valid. (NCC, Art.
1130)
True title
One which actually exists and is not just a
pretended one.
Note: An absolutely simulated or fictitious title
is void and cannot be a basis for ordinary
prescription. (Pineda Succession and
Prescription, p. 646, 2009)
Valid title
A title which is sufficient to transmit ownership
of the property or right being conveyed had the
transferor or grantor been the real owner
thereof.
EXTRAORDINARY PRESCRIPTION
Prescription where the possessor is in bad faith.
301
Prescription
It does not require good faith or just title but time, has continued to be in possession
possession for a period longer than ordinary during the intervening time, unless there is
acquisitive prescription. (Pineda Succession and proof to the contrary; and
Prescription, p. 607, 2009)
3. The first day shall be excluded and the last
Requisites of extraordinary prescription day included. (NCC, Art 1138)
(CLAS-G)
Q: Emilio died, leaving 8 children. In 1960,
1. Capacity of the possessor to acquire by His eldest child, Flores, took possession of
prescription; and cultivated the land, caused the
2. Susceptibility of object to prescription; cancellation of the tax declaration in
3. Adverse possession of the character
prescribed by law; caused the issuance of another in his own
4. Lapse of time required by law; and
5. Good faith of possessor or proof of just title.
his sisters together with his surviving sisters
PERIOD filed a complaint in 1999 against the heirs of
Flores for partition of the lot and
Q: What are the periods as regards declaration of nullity of the documents. Did
prescription as a mode of acquisition of the heirs of Flores acquire ownership over
ownership? the lot by extraordinary acquisitive
prescription?
A:
1. Movables A: YES. While the action to demand partition of
a. and
b. faith. owner may acquire ownership thereof by
2. Immovables prescription, where there exists a clear
a. and
b. faith. owners are apprised of the claim of adverse and
exclusive ownership. In this case, the
Q: How does ownership of personal respondents never possessed the lot, much less
property prescribe? asserted their claim thereto until 1999 when
they filed the complaint for partition. In
A: Through uninterrupted possession for 8 contrast, Flores took possession of the lot after
years, without need of any other condition.
(NCC, Art. 1132)
introducing improvements, and enjoying the
Q: How about ownership and other real produce thereof. The statutory period of
rights over immovables? prescription commenced in 1960 when Flores,
who had neither title nor good faith, secured a
A: They prescribe through uninterrupted tax declaration in his name and may, therefore,
adverse possession for 30 years, without need be said to have adversely claimed ownership of
of title or of good faith. (NCC, Art. 1137) the lot. On said date, respondents were also
deemed to have become aware of the adverse
Q: What are the rules for the computation of
time necessary for prescription? ownership through acquisitive prescription
after the lapse of 30 years. (Heirs of Restar v.
A: Heirs of Cichon, G.R. No. 161720, November. 22,
2005)
1. The present possessor may complete the
period necessary for prescription by Q: Sixto, owner of a parcel of land, died. He
tacking his possession to that of his grantor was survived by his wife and three children.
or predecessor in interest; The subject land was donated by his wife to
Silverio, who immediately entered into
2. It is presumed that the present possessor possession of the land, built a fence around
who was also the possessor at a previous it, constructed a residential house, declared
UNIVERSITY OF SANTO TOMAS
2021 GOLDEN NOTES
it for tax purposes and paid the taxes
thereon, and resided there until his death.
After 45 years from the time of donation,
complaint for recovery of ownership, and
possession against Silverio. Who is the
rightful owner of the land?
A: Silverio became the rightful owner of the
land by extraordinary acquisitive prescription.
In extraordinary prescription ownership and
other real rights over immovable property are
acquired through uninterrupted adverse
possession thereof for 30 years without need of
title or of good faith. When Soledad filed the
case, Silverio was in possession of the land for
45 years counted from the time of the donation.
This is more than the required 30 years of
uninterrupted adverse possession without just
title and good faith. Such possession was public,
adverse and in the concept of an owner. He
declared the land for taxation purposes and
religiously paid the realty taxes thereon.
Together with his actual possession of the land,
these tax declarations constitute strong
evidence of ownership of the land occupied by
him. (Calicdan v. Cendeña, G.R. No. 155080,
February. 5, 2004)
Q: Anthony bought a piece of untitled
agricultural land from Bert. Bert, in turn,
signature in a deed of sale over the
property. Carlo had been in possession of
the property for eight years, declared it for
tax purposes, and religiously paid all taxes
due on the property. Anthony is not aware of
actual physical possession of the property
from the time he bought it from Bert, who
had never been in possession. Anthony has
since then been in possession of the
property for one year.
Can Anthony acquire ownership of the
property by acquisitive prescription? How
many more years does he have to possess it
to acquire ownership?
A: YES. Anthony can acquire ownership of the
property by ordinary acquisitive prescription
which requires just title and good faith (NCC,
Art. 1117). There was just title because a deed
of sale was issued in his favor even though it
was forged, which fact he was not aware of. He
needs to possess the land in good faith and in
302
 Civil Law Prescription
the concept of owner for a total of ten years in negligent in the assertion of his right. of a Writ of Possession Prescription and laches cannot apply to
order to acquire ownership. Since Anthony (Tolentino, Civil Code of the Philippines, Vol. IV, p. filed by the applicant for registered land covered by the Torrens system"
possessed the land for only one year, he has not 2) registered land. because "under the Property Registration
Decree, no title to registered land in derogation
Requisites: NOTE: Similarly, an action to to that of the registered owner shall be
who in the deed of sale is supposed to be his recover possession of a acquired by prescription or adverse
grantor or predecessor in interest [NCC, Art. 1. Capacity to acquire by prescription; registered land never p (Jakosalem vs. Barangan, G.R. No.
1138(1)], the period is still short of ten years. 2. A thing capable of acquisition by prescribes. 175025, February 15, 2012)
prescription;
If Carlo is able to legally recover his 3. Possession of the thing under certain Prescription or Limitation of Actions
property, can he require Anthony to account conditions; and Action
for all the fruits he has harvested from the 4. Lapse of time provided by law. legal to ACTIONS PRESCRIPTIVE PERIOD
property while in possession? demand a Eight years (good faith) or
PERIODS right of Imprescriptible Four years (bad faith) from
A: Since Anthony is a possessor in good faith, way to Recover the time the possession is
Anthony cannot be made to account for the Q: What are the periods as regards abate a Movables lost. (NCC, Art. 1140, Pineda
fruits he gathered before he was served with prescription of actions to recover movables nuisance Succession and Prescription,
summons. A possessor in good faith is entitled and immovables? p. 666, 2009)
to the fruits received before the possession was 30 years (Recover
legally interrupted by the service of summons. A: Action to ownership). (NCC, Art.
(NCC, Art. 544) After Anthony was served with 1. Movables quiet title if 1141)
summons, he became a possessor in bad faith Imprescriptible
a. and plaintiff in Recover 10 years (Recover real right
and a builder, planter, sower in bad faith. He b. (NCC, Art. 1140 possession Immovables of possession). (NCC, Art.
can also be made to account for the fruits but he in relation to Art. 1132) 555(4); and Pineda
may deduct expenses for the production 2. Immovables Succession and Prescription,
gathering and preservation of the fruits. (NCC, a. faith Applies to both action and p. 667, 2009)
Art. 443) b. faith defense. Mortgage 10 years from default of
Void Action mortgagor. (NCC, Art. 1142)
Q: If there are standing crops on the contracts NOTE: However, an action to
INSTANCES WHEN PRESCRIPTION Based on
property when Carlo recovers possession, annul avoidable contract 10 years
IS NOT ALLOWED written
can Carlo appropriate them? (2008 BAR) prescribes after four years.
contract
NOTE: If contract is oral or
A: The value of the standing crops must be NO PRESCRIPTION
quasi, prescriptive period is
prorated depending upon the period of APPLICABLE Action to
six years (NCC, Art. 1145)
possession and the period of growing and demand
recognized expressly or Based on
producing the fruits. Anthony is entitled to a When it is possessed through a partition
impliedly. (NCC, Art. 494) obligation 10 years from the time the
part of the net harvest and a part of the crime such as robbery, theft,
created by right of action accrues
expenses of cultivation in proportion to his or estafa.
law
period of possession. However, Carlo may allow Right of reversion or 10 years from the day
Anthony to gather these growing fruits as an NOTE: The person who cannot Based on
reconveyance to the State of judgment became final and
indemnity for the expenses of cultivation. If invoke the right of prescription judgment
the public properties executory (NCC, Art. 1144)
Anthony refuses to accept this concession, he is the offender or person who
registered and which are not Based upon
shall lose the right to indemnity under Art. 443. By Offender committed the crime or offense,
capable of private an injury to
(NCC, Art. 545, par. 3) not a subsequent transferee Four years
appropriation or private the rights of
who did not participate in the
acquisition does not prescribe. plaintiff
crime or offense, unless the
EXTINCTIVE PRESCRIPTION Property Based on
latter knew the criminal nature Four years (NCC, Art. 1146)
of public NOTE: In contrast, where
of the acquisition of the
CHARACTERISTICS dominion private property is taken by the Forcible
property by the transferor.
Government for public use entry and One year
(NCC, Art. 1133; Pineda, 2009)
Basis of extinctive prescription without first acquiring title detainer
thereto either through Defamation One year (NCC, Art. 1147)
expropriation or negotiated All other
It based on the probability, born of experience, 1. An action to recover a
that the alleged right which accrued in the past Registered actions not Five years (NCC, Art .1149)
registered land by the
Lands (P.D. recover the land or the value specified
never existed or has already been extinguished; owner; and
1529) thereof does not prescribe.
or if it exists, the inconvenience caused by the 2. Right to petition for the
lapse of time should be borne by the party issuance for the issuance

303 UNIVERSITY OF SANTO TOMAS 304

2021 GOLDEN NOTES
 Civil Law
INTERRUPTION
Q: What are the grounds for interruption of
prescriptive period?
A:
1. When they are filed before the court;
2. When there is a written extrajudicial
demand by the creditors; or
3. When there is any written acknowledgment
of the debt by the debtor. (NCC, Art. 1155)
Prescription where possession in Good Faith
is converted into possession in Bad Faith.
If the possession in good faith is later converted
in to bad faith the prescriptive period shall be
computed in the following manner:
Movables The period of ordinary period is
four (4) years, while that of extraordinary
prescription is eight (8) years. Since the period
of extraordinary prescription is two (2) times
longer than the ordinary prescription, the
number of years in ordinary period will be
multiplied by 2 to get the period for
extraordinary prescription.
Eg. If after two (2) years of possession in good
faith of a movable property, the possession was
converted in bad faith. The 2 years would be
equivalent to 4 years possession in bad faith.
Immovable The period for ordinary
prescription in good faith is 10 years and 30
years for extraordinary or in bad faith. Since the
extraordinary prescription is three (3) times
longer than the ordinary prescription it shall be
multiplied by 3.
E.g. If after six (6) years of possession in good
faith of a real property, the possession was
converted in bad faith, the six (6) years of
possession in good faith would be equivalent to
18 years possession in bad faith.
Q: Sometime in 1974, Simeon Piedad filed a
case for annulment of an absolute deed of
sale against Candelaria and Mariano Bobilles.
The case was docketed as Civil Case No. 435-
T. The trial court ruled in Piedad's favor and
declared the deed of sale as null and void for
being a forgery. On appeal, the Court of
Appeals dismissed the appeal and affirmed
the trial court ruling. The Court of Appeals
305
Decision became final and executory on
November 1, 1998. Judge Gaviola, upon
motion, then issued an order for the issuance
of a writ of demolition on October 22, 2001.
However, the writ of demolition was never
served on respondents due to their dilatory
tactics and the gross ignorance of the law and
undue delay caused by Judges Estrera and
Villarin. The case only began to gain traction
on July 12, 2010, when petitioners filed their
motion for the revival of judgment. But by
this time, almost 12 years had passed since
the Court of Appeals September 15, 1998
Decision became final and executory. This
led Branch 29, Regional Trial Court, Toledo
City, where the case was transferred from
Branch 9, Regional Trial Court, Cebu City, to
deny the motion in its Order dated May 15,
2012 for being the wrong remedy.
Whether or not the prescription had already
set in requiring the Piedads to file an action
for revival of judgment?
A: YES. Prescription had already set in.
However, a mere motion will suffice for reasons
of equity. In one jurisprudence, the Supreme
Court provides that if manifest wrong or
injustice would result with the strict adherence
to the statute of limitations or doctrine of laches,
it would be better for courts to rule under the
principle of equity. This Court, in a long line of
cases, has allowed for the execution of a final
and executory judgment even if prescription has
already set in, if the delay was caused by the
judgment obligor for his or her benefit or
advantage. (Simeon Trinidad Piedad (Deceased)
Survived and Assumed By His Heirs, Namely:
Eliseo Piedad (Deceased)*, Joel Piedad, Publio
Piedad, Jr., Gloria Piedad, Lot Piedad, Abel Piedad,
Ali Piedad, and Lee Piedad v. Candelaria Linehan
Bobilles and Mariano Bobilles, G.R. No. 208614,
November 27, 2017, as penned by J. Leonen)