FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

BOOK II irreversible cessation of all functions of the entire

brain, including the brain system.

PROPERTY, OWNERSHIP, AND Properties v. Objects of contract

ITS MODIFICATIONS Property Object of a contract
The criterion is The criterion is whether
susceptibility to they are outside of
TITLE I - CLASSIFICATION OF appropriation commerce of man or
PROPERTY not
PRELIMINARY PROVISIONS Things outside of
commerce of man are
not necessarily
Article 414
disqualified from being
All things which are or may be the object of
considered property
appropriation are considered either:

(1) Immovable or real property; or Property v. Things

(2) Movable or personal property. (333) Property Things
Used interchangeably in the Civil Code
Property Much limited in scope, Broader in scope,
 Derived from the Latin word “proprius”, includes only includes both
appropriable things appropriable and non-
meaning belonging to one or one’s own
appropriable objects
(Rabuya)
 An object which is or may be appropriated Requisites
(Paras) 1) Utility – whether it can serve as a means to satisfy
 Considered as a subject or course in law, human needs (additional requisite)
property is that branch of civil law which 2) Substantivity or individuality – the thing must
classifies and defines the different kinds of have an autonomous and separate existence. The
appropriable objects, provides for their thing must not be merely a part of a whole
acquisition and loss, and in general, treats of (Additional requisite)
the nature and consequences of real rights 3) Appropriability – capable of being obtained even
 Intimately related with the concept of things if not yet actually appropriated (essential requisite)
(may be interchangeably used)
 The Civil Code refers to things as both the Classification of property under the Civil Code
corporeal objects and incorporeal objects (both Whether immovable or movable
object and rights) 1) Immovable (Art 415)
 The Civil Code does not define the term 2) Movable (Arts 416-417)
property but simply implies that the concept a) Consumable (Art 418)
refers to things which are susceptible of b) Non-consumable (Art 418)
appropriation
 Things which cannot, therefore, be subjected From the viewpoint of ownership
to human control by reason of sheer physical 1) Property of public dominion
impossibility are not considered as property 2) Private ownership

The human body Classification of things

RPC - the human body, whether alive, or dead, is  Not all things can be considered property
neither real nor personal property, for it is not even 1) As to nature
property at all, in that it generally cannot be  Res nullius – Belonging to no one
appropriated. It is indeed a thing or a being, for it  Res communes – Belonging to everyone
exists;  Res alicujus – Belonging to someone
2) As to mobility
Civil Code - Article 416 (4) of the Civil Code states  Movable (Art 416, 417)
that in general, all things which can be transported
 Immovable (Art 415)
from place to place are deemed to be personal
3) As to ownership
property. Considering that human remains can
 Public
generally be transported from place to place (Laud v.
 Private
People)
4) As to alienability
 Within the commerce of man
Organ Donation Act of 1991 (Feb 29, 1992)
 Outside the commerce of men
This means that all or part of a human body may only
5) As to existence
occur after a person’s “death” (i.e., the irreversible
cessation of circulatory and respiratory functions or the  Present
 Future

Property | VENTEROSO
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

6) As to materiality 3) Everything attached to an immovable in a

 Tangible/corporeal fixed manner, in such a way that it cannot be
 Intangible/incorporeal separated therefrom without breaking the
7) As to dependence material or deterioration of the object;
 Principal 4) Statues, reliefs, paintings or other objects for
use or ornamentation, placed in buildings or
 Accessory
on lands by the owner of the immovable in
8) As to substitution such a manner that it reveals the intention to
 Fungible – Capable of substitution of attach them permanently to the tenements;
same kind and quantity 5) Machinery, receptacles, instruments or
 Non-fungible – incapable of implements intended by the owner of the
substitution; identical thing must be tenement for an industry or works which
given or returned may be carried on in a building or on a piece
9) As to nature or definiteness of land, and which tend directly to meet the
 Generic – referring to a group or class needs of the said industry or works;
 Specific – referring to a single object 6) Animal houses, pigeon-houses, beehives,
10) As to custody of court fish ponds or breeding places of similar
nature, in case their owner has placed them
 In custodia legis
or preserves them with the intention to have
 Free them permanently attached to the land, and
forming a permanent part of it; the animals
Importance of classification in these places are included;
1) For purpose of applying the rules of acquisitive 7) Fertilizer actually used on a piece of land;
prescription 8) Mines, quarries, and slag dumps, while the
Immovables Movables matter thereof forms part of the bed, and
Good faith 10 years 4 years waters either running or stagnant;
Bad faith 30 years 8 years 9) Docks and structures which, though
floating, are intended by their nature and
2) Determining the propriety of the object of the object to remain at a fixed place on a river,
contracts of pledge, chattel mortgage and real lake, or coast;
estate mortgage 10) Contracts for public works, and servitudes
and other real rights over immovable
3) For the purpose of determining the formalities
property. (334a)
of a donation
4) Extrajudicial deposit – only movable things
 The New Civil Code does not define
may be the object of extrajudicial deposit
immovable or real property but enumerates
5) Commodatum and mutuum
what are considered as such
 Commodatum – both immovable and
 The classification of property into real or
movable
personal property is a question of law
 Mutuum – movable only
6) In crimes of theft, robbery and usurpation
Classification of immovable properties
7) For purposes of determining the venue in
1) Immovable by nature – cannot be carried
remedial law
from place to place (Par 1 [lands], 2 [attached
8) For purposes of real property taxation
to the land], 8)
2) Immovable by incorporation – attached to an
Reclassification v. Conversion
immovable in a fixed manner to be an
Reclassification Conversion integral part thereof (Par 1 [buildings, roads
The act of specifying The act of changing the
and constructions], 2 [attached to the
how agricultural lands current use of a piece of
immovable], 3)
shall be utilized for non- agricultural land into
agricultural uses some other use as 3) Immovable by destination – essentially
(residential, commercial, approved by DAR movable but placed in an immovable for the
industrial) utility it gives to the activity carried thereon
(Par 4, 5, 6, 7, 9)
CHAPTER 1 4) Immovable by analogy or by law – classified
Immovable Property by express provision of law (Par 10)

Article 415 Land, buildings, roads and constructions

The following are immovable property:
1) Land, buildings, roads and constructions of
all kinds adhered to the soil;
2) Trees, plants, and growing fruits, while they
are attached to the land or form an integral
part of an immovable;
of all kinds adhered to the soil;
Lands
Is considered as immovable or real property by their
nature. It is by nature cannot be moved from one place
to another

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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Building
RULE: Must be more or less a permanent
structure substantially adhered to the soil and not
mere superimpositions
A house or a building is immovable by
incorporation by reason of its adherence to the soil
in which it is built. A building which is merely
superimposed on the soil is not a real property.
Once the house is demolished, it ceases to exist
as an immovable (Bicerra v. Teneza)
In the case at bar, the house in question was treated
as personal or movable property, by the parties to
the contract themselves. In the deed of chattel
mortgage, appellant Rufino G. Pineda conveyed by
way of "Chattel Mortgage" "my personal
properties", a residential house and a truck. The
mortgagor himself grouped the house with the
truck, which is, inherently a movable property.
The house which was not even declared for
taxation purposes was small and made of light
construction materials: G.I. sheets roofing,
sawali and wooden walls and wooden posts;
built on land belonging to another. (Navarro v.
Pineda)
Buildings are always immovable
This applies only when the building is a “true
building” and not merely superimposed on the soil
 Rule is not affected by the fact that the
building is treated separately from the land
A building treated separately from the land
on which it stood is immovable property and
the mere fact that the parties to a contract
seem to have dealt with it separately and
apart from the land on which it stood is no
wise changed its character. (Leung Yee v.
Strong Machinery Co)
 Rule is not affected by the fact that the
building is erected on a land owned by
another person
A true building (not merely superimposed
on the soil) is immovable or real property,
whether it is erected by the owner of the
land or by a usufructuary or lessee.
(Evangelista v. Alto Surety)
*ownership will only matter in the 5th and 6th pars of
Art 415
To cloak the building with an uncertain
status made dependent on the ownership
of the land, would create a situation
where a permanent fixture changes its
nature or character as the ownership of
the land changes hands
It is obvious that the inclusion of the
building, separate and distinct from the
land, in the enumeration of what may
constitute real properties provided by
Property | VENTEROSO
Article 415 of the Civil Code, could only
mean that a building is by itself an
immovable property. (Associated Ins. &
Surety Co v. Iya)
XPN: Although ownership cannot determine the
status, it does so when combined with other
factors to sustain the interpretation that the parties
intended
Moreover, the subject house stood on a rented lot
to which defendats-appellants merely had a
temporary right as lessee, and although this
cannot in itself alone determine the status of the
property, it does so when combined with other
factors to sustain the interpretation that the
parties, particularly the mortgagors, intended to
treat the house as personalty. (Tumulad v.
Vicencio)
 The classification of property into real or
personal is provided for by law and may
not, therefore, be changed by the
agreement of the parties
Instance where building is treated as personal property
 Doctrine of estoppel
o By ceding, selling, or transferring a real
property (house) by way of chattel
mortgage
Although there is no specific
statement referring to the subject
house as personal property, yet by
ceding, selling or transferring a
property by way of chattel
mortgage defendants-appellants
could only have meant to convey
the house as chattel, or at least,
intended to treat the same as such, so
that they should not now be allowed
to make an inconsistent stand by
claiming otherwise. (Tumulad v.
Vicencio)
o By treating the property as personal
in the chattel mortgage contract
The duties of a register of deeds in
respect to the registration of chattel
mortgage are of a purely
ministerial* character; and no
provision of law can be cited which
confers upon him any judicial or
quasi-judicial power to determine
the nature of any document of which
registration is sought as a chattel
mortgage (Standard Oil Co. v.
Jaramillo)
*Ministerial – without exercise of discretion
o Effect of registration –
CANNOT BIND THIRD
PERSONS
The registration of the
chattel mortgage of a
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
building of strong materials
produ
ces no effect as far as the
building is concerned. But
as between the parties to
said chattel mortgage,
they are not allowed to
assail the validity of said
agreement under the
principle of estoppel
(Associated Ins. & Surety
Co v. Iya)
The registry here referred in
Art 1473 is of course the
registry of real property,
and it must be apparent that
the annotation or inscription
of a deed of sale of real
property in a chattel
mortgage registry cannot be
given the legal effect of an
inscription in the registry of
real property. By its express
terms, the Chattel
Mortgage Law
contemplates and makes
provision for mortgages of
personal property; and the
sole purpose and object of
the chattel mortgage
registry is to provide for
the registry of "Chattel
mortgages," that is to say,
mortgages of personal
property executed in the
manner and form
prescribed in the statute.
xx the machinery company
must be held to be the owner
of the property under the
third paragraph of the above
cited article of the code, it
appearing that the company
first took possession of the
property; and further, that
the building and the land
were sold to the machinery
company long prior to the
date of the sheriff's sale to
the plaintiff. (Leung Yee v.
Strong Machinery Co))
XPN: Foreclosure and execution proceedings – since
the doctrine of estoppel cannot bind third persons
A mortgage creditor who purchases real
properties at an extra-judicial foreclosure sale
thereof by virtue of a chattel mortgage
constituted in his favor, which mortgage has been
declared null and void with respect to said real
properties acquires no right thereto by virtue of said
sale. (Piansay v. David)
Construction adhered to the soil
Property | VENTEROSO
RULE: To be immovable, the construction must be
attached permanently to the land. It becomes
immovable by incorporation.
It necessarily includes roads
The pipeline system in question is indubitably a
construction adhering to the soil. It is attached to the
land in such a way that it cannot be separated
therefrom without dismantling the steel pipes which
were welded to form the pipeline (Meralco
Securities v. CBAA)
Trees, plants, and growing fruits, while
they are attached to the land or form an
integral part of an immovable;
Classification
1) By nature – spontaneous products of the soil
2) By incorporation – planted through labor
Trees and plants
GR: Trees, plants and growing fruits, while they are
attached to the land, are immovable property
XPN: If the trees or plants are cut or uprooted for
purposes of making them firewood or timber, they
become movable
XPN of XPN: The timber constituted the natural
product of the tenement/timber land
Growing fruits
GR: Growing fruits are considered as real property so
long as they are still attached to the soil
XPN: May be treated as personal property pursuant to
the provisions of Art 416(2) of the NCC
1) Ungathered fruits are considered personal
property for the purpose of sale of the whole
or part of the crops
2) Ungathered fruits have the nature of personal
property for purposes of attachment and
execution and in applying the provisions of the
Chattel Mortgage Law and Act 1508 (Sibal v.
Valdez)
***Once they are detached from the soil they are no
longer considered as real property
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;
RULE: Must be incorporated in the immovable in
a fixed manner
The steel towers of Meralco could not be included
under par 3 because they are not attached to an
immovable property in a fixed manner since they
could be separated without breaking the
material or causing deterioration upon the
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
object to which they were attached. (BAA v.
Meralco)
 Civil Code nowhere requires that the
attachment or incorporation be made by the
owner of the land or immovable itself
XPN: Parties’ intent may govern
 If the parties treat the machinery as chattels,
they are bound by their agreement under the
principal of estoppel notwithstanding the
fact that the machinery may have been
attached to an immovable in a fixed
manner and may not be separated
therefrom without breaking the material or
deterioration of the object to which it is
attached
While it is true that the controverted properties
appear to be immobile, a perusal of the contract of
Real and Chattel Mortgage executed by the parties
herein give us a contrary indication. In the case at
bar, both the trial and the appellate courts reached
the same finding that the true intention of PBCom
and the owner, EVERTEX, is to treat machinery
and equipment as chattels. Too, assuming arguendo
that the properties in question are immovable by
nature, nothing detracts the parties from treating
it as chattels to secure an obligation under the
principle of estoppel. (Tsai v. CA)
Statues, reliefs, paintings or other objects
for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it
reveals the intention to attach them
permanently to the tenements;
Requisites
1) Must be placed in buildings or on lands by the
owner of the immovable or by his agent
2) The attachment must be intended to be
permanent
Art 415 (4) Art 415 (3)
Immovable by Immovable by
destination and incorporation
incorporation
Can be separated from Cannot be separated
immovable without from immovable
breaking or without breaking or
deterioration deterioration
Must be placed by the Need not be placed by
owner, or by his agent, the owner
express or implied
Machinery, receptacles, instruments or
implements intended by the owner of the
tenement for an industry or works which may be
carried on in a building or on a piece of land,
and which tend directly to meet the needs of the
said industry or works;
Property | VENTEROSO
Requisites
1) They must be machinery, receptacles,
instruments or implements
The steel towers constructed by Meralco as falling
under par 5 for they are not machineries, receptacles,
instruments, or implements (BAA v. Meralco)
2) They must be placed by the owner or the
tenement or by his agent
 Separated when no longer in use - It is
reverted to condition of a chattel
 Separated temporarily but will still
serve industry
Machinery which is movable by nature becomes
immobilized when placed by the owner of the
tenement, property or plant, but not so when
placed by tenant, usufructuary, or any other
person having only a temporary right, unless
such person acted as the agent of the owner.
(Davao Sawmill Co v. Castillo)
GR: Machinery cannot be categorized as
immovable when placed by tenant, usufructuary,
lessee or any other person having only a temporary
right
XPN: When such person acted as an agent to the
owner
 if in the contract of lease, it is stipulated that
such machinery, receptacles, instruments or
implements placed there by the lessee will
become, at the termination of the lease, the
property of the lessor for in that case they will
be considered as immovable property since in
placing them the lessee will just be merely
acting as an agent of the lessor. (Davao
Sawmill Co v. Castillo)
While under the general law of Puerto Rico
machinery placed on property by a tenant does not
become immobilized, yet, when the tenant places it
there pursuant to a contract that it shall belong to
the owner, it then becomes immobilized as to
that tenant and even as against his assignees
and creditors who had sufficient notice of such
stipulation. (Valdez v. Central Altagracia, Inc.)
3) There must be an industry or work carried in
such building or on the piece of land
o Must be essential and principal,
without which such industry or works
would be unable to function
In order that movable equipments to be
immobilized in contemplation of the law
they must first be “essential and principal
elements of an industry or works without
which such industry or works would be
unable to function or carry on the
industrial purpose for which it was
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
established.” (Mindanao Bus Co. v. City
Assessor and Treasurer)
If the installation of the machinery and
equipment in question in the central of the
Mabalacat Sugar Co., Inc., in lieu of the other
of less capacity existing therein, for its sugar
industry, converted them into real property by
reason of their purpose, it cannot be said that
their incorporation therewith was not
permanent in character because, as essential
and principal elements of a sugar central,
without them the sugar central would be
unable to function or carry on the industrial
purpose for which it was established. (B.H.
Berkentotter v. Cu Unjieng)
o They must also be carried on in a
building or on a piece of land or on
waters
The equipment in question were not deemed
real property because the transportation
business, according to the Court, “is not
carried on in a building or permanently
on a piece of land,” as demanded by law.
The equipment in question is destined only
to repair or service the transportation
business (Mindanao Bus Co. v. City
Assessor and Treasurer)
4) They must tend directly to meet the needs
of said industry or work
The mortgage was on the lands "together with all the
buildings and improvements now existing or which
may hereafter be constructed" thereon. And the
machineries, as found by the trial court, were
permanently attached to the property, and installed
there by the former owner to meet the needs of
certain works or industry therein. They were
therefore part of the immovable pursuant to Article
415 of the Civil Code and need not be the subject
of a separate chattel mortgage in order to be deemed
duly encumbered in favor of appellee. (GSIS v.
Calsons)
Application of the doctrine of estoppel
The application of doctrine of estoppel is only limited
to actions between the parties and cannot prejudice
actions involving third persons.
The lease agreement, of which SPI is a party, clearly
provides that the machines in question are personal
property, hence, SPI is estopped from denying the
characterization of the subject machines as personal
property. The Court cautioned, however, that its
holding that the machines should be deemed
personal property pursuant to the Lease Agreement
is good only insofar as the contracting parties
are concerned. (Serg Products Inc. v. PCI)
Serg case Ago case
Property | VENTEROSO
The machineries are The machineries,
considered personal although covered by a
property even though chattel mortgage, are
they are principal and considered real property
essential elements of thesince they are
industry immobilized
The action is concerning The action/issue is
a writ of replevin concerning the absence
(private) of the publication of the
notice of sale (public)
The doctrine of estoppel The doctrine of estoppel
may apply may not be applied
Action for replevin
 May constitute real property subjected by
the parties to a Chattel Mortgage (doctrine
of estoppel)
Ordinarily replevin may be brought to recover any
specific personal property unlawfully taken or
detained from the owner thereof, provided such
property is capable of identification and delivery;
but replevin will not lie for the recovery of real
property or incorporeal personal property.
(Machinery and Engineering v. CA)
Rules on execution proceedings: cannot be
affected by the agreement of the parties to subject
real properties to chattel mortgage
We hold that the rules on execution do not allow,
and we should not interpret them in such a way as
to allow, the special consideration that parties to a
contract may have desired to impart to real estate,
for example, as personal property, when they are not
ordinarily so. Sales on execution affect the public
and third persons. The regulation governing
sales on execution are for public officials to
follow. The form of proceedings prescribed for
each kind of property is suited to its character,
not to the character which the parties have given
to it or desire to give it.
We, therefore, hold that the mere fact that a house
was the subject of a chattel mortgage and was
considered as personal property by the parties
does not make said house personal property for
purposes of the notice to be given for its sale at
public auction. This ruling is demanded by the
need for a definite, orderly and well- defined
regulation for official and public guidance and
which would prevent confusion and
misunderstanding. (Manarang v. Ofilada)
The doctrine, therefore, gathered from these cases is
that although in some instances, a house of mixed
materials has been considered as a chattel between
them, has been recognized, it has been a constant
criterion nevertheless that, with respect to third
persons, who are not parties to the contract, and
specially in execution proceedings, the house is
considered as an immovable property (Navarro v.
Pineda)
Comparisons of cases
Caltex case BAA case Davao Saw Mindanao
Mill case Bus case
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

Equipment The steel Machinery The tools

and towers were mounted on and These are immovables by destination. The fertilizers
machinery, as considered foundations equipment
appurtenances personalty of cement in the repair must actually be used on the land because it is only then
to the gas because they and installed shop of a that the intention of the owner to use them on the
station were by the lessee bus tenement is beyond doubt.
building or attached to on leased company
shed owned square metal land should which were
by Caltex are frames by be regarded held to be RULE: Must be actually used
taxable means of as personal personal Fertilizers still in the barn but wrapped are still
improvements bolts and property for property considered personal property since not yet actually
and could be purposes of
machinery moved from execution of used
within the place to a judgment
meaning of place when against the Mines, quarries, and slag dumps, while
the unscrewed lessee.
Assessment and the matter thereof forms part of the bed,
Law and the dismantled. and waters either running or stagnant;
Real Property
Tax Code.
Subject to Considered No tax issue Not subject RULE: Matter thereof must be part of the bed
realty tax the poles to realty tax Mines
under the within the Minerals are already considered personal property
Assessment meaning of
Law and the paragraph 9
since they are not anymore part of the soil/bed.
Real of its
Property Tax franchise Waters
Code. which The waters, either running or stagnant, referred to here
exempts its
poles from are those which are found in their natural beds such as
taxation flowing streams, rivers or canals.

Animal houses, pigeon-houses, beehives,  Slag dump – the dirt and soil taken from a
fish ponds or breeding places of similar mine and piled upon the surface of the ground
nature, in case their owner has placed
them or preserves them with the XPNs:
intention to have them permanently  Extracted minerals are already chattels
 Water – as distinguished from waters, is a
attached to the land, and forming a
personal property
permanent part of it; the animals in these
places are included;
Docks and structures which, though
The structures mentioned in paragraph 6 are floating, are intended by their nature and
immovable by destination and the Code requires object to remain at a fixed place on a
that they be placed by the owner of the land in order river, lake, or coast;
to acquire the same nature or consideration of real
property. They are considered as immovables, though floating,
as long as they are intended by their nature and object
Art 415(6) Art 415(5) Art 415(4) Art 415(3) to remain at a fixed place on a river, lake, or coast.
Must be Must be Must be Need not
placed by placed by placed by be placed RULE: Must be intended by their nature and object to
the the owner, the owner, by the remain at a fixed place on a river, lake or coast
owner or by his or by his owner Floating houses are considered real property,
agent, agent, considering that the waters are considered
express or express or immovables
implied implied
Moreover, Article 415 (9) of the New Civil Code
RULE: There must be intent to return provides that "[d]ocks and structures which, though
For animals temporarily outside, they are still floating, are intended by their nature and object to
considered real property as long as the intent to remain at a fixed place on a river, lake, or coast" are
return is present considered immovable property. Thus, power
barges are categorized as immovable property
GR: Fish in the fish pond is considered real property by destination, being in the nature of machinery
XPN: The fish in fishponds will be considered as and other implements intended by the owner for
personal property for purposes of theft as expressly an industry or work which may be carried on in
provided for under the Revised Penal Code. (Art a building or on a piece of land and which tend
416(2)) directly to meet the needs of said industry or
work. (FELS Energy c. Province of Batangas)
Fertilizer actually used on a piece of land;

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XPN: Vessels would appear that whether a structure constitutes an

Since the term "personal property" includes improvement so as to partake of the status of realty
vessels, they are subject to mortgage agreeably would depend upon the degree of permanence
to the provisions of the Chattel Mortgage Law. intended in its construction and use. The
The only difference between a chattel mortgage of a expression "permanent" as applied to an
vessel and a chattel mortgage of other personality is improvement does not imply that the improvement
that it is not now necessary for a chattel must be used perpetually but only until the
mortgage of a vessel to be noted in the registry purpose to which the principal realty is devoted
of the register of deeds, but it is essential that a has been accomplished. It is sufficient that the
record of documents affecting the title to a improvement is intended to remain as long as the
vessel be entered in the record of the Collector land to which it is annexed is still used for the said
of Customs at the port of entry. Otherwise a purpose (Benguet Corporation v. CBAA)
mortgage on a vessel is generally like other chattel
mortgages as to its requisites and validity. (PRC Inc. To the extent that the equipment’s location is
v. Jarque) determinable within the taxing authority’s
jurisdiction, there is no reason to distinguish
Contracts for public works, and between submarine cables used for
communications and aerial or underground wires
servitudes and other real rights over or lines used for electric transmission, so that
immovable property both pieces of property do not merit a different
treatment in the aspect of real property taxation.
Rights (Capitol Wireless Inc v. Provincial Treasurer of
The concept of property extends to rights provided Batangas)
that the same is patrimonial in nature.
2) Personal
RULE: Whether a right is personal or real property GR: All personal rights will fall under personal
shall depend on property regardless of the subject matter
1) Whether it is a personal or real property XPN: contracts for public works
2) Whether the subject matter thereof is a
personal or real property The piece of paper on which the contract for public
has been written is necessarily personal property, but
Types of patrimonial rights the contract itself/right of the contract is real
1) Real property
o For real rights, the classification
thereof will depend on its subject Real right Personal right
matter Definite active subject Definite active subject
who has a right against and a definite passive
Real property for taxation purposes all persons generally as subject
For purposes of determining whether a property is an indefinite passive
real property subject to real property tax, the subject
definition and requirements under the Local Object is generally a Object is always an
Government Code are controlling. As between corporeal thing incorporeal thing
Civil Code, a general law governing property and Created by mode and Created by title
property relations and the Local Government Code, title
a special law granting local government units the Extinguished by the loss Personal right survives
power to impose real property tax, then the latter or destruction of the the subject matter
shall prevail. (Manila Electric Company v. City thing over which it is
Assessor) exercised
Directed against the Directed against a
The Real Property Tax Code does not define “real whole world (action in particular person (action
property” but simply says that the realty tax is rem) in personam)
imposed on “real property, such as lands,
buildings, machinery and other improvements On the Constitutional prohibition of aliens to own
affixed or attached to real property.” (Benguet lands
Corporation v. CBAA) The prohibition in the Constitution applies only to
ownership of land. It does not extend to
The Court is convinced that the subject dam falls immovable or real property as defined under
within the definition of an "improvement" because Article 415 of the Civil Code. Otherwise, we would
it is permanent in character and it enhances both have a strange situation where the ownership of
the value and utility of Benguet Corporation's immovable property such as trees, plants and
mine. Moreover, the immovable nature of the dam growing fruit attached to the land would be limited
defines its character as real property under Article to Filipinos and Filipino corporations only. (JG
415 of the Civil Code and thus makes it taxable Summit v. CA)
under Section 38 of the Real Property Tax Code. It

Property | VENTEROSO
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
CHAPTER 2
Movable Property
Article 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 personalty;
3) Forces of nature which are brought 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. (335a)
 The Civil Code does not likewise define the
term “personal” or “movable” property
 Under our law, all properties which are not
real are personal.
Those movables susceptible of
appropriation which are not included in
the preceding article;
 Constitutes the general definition of a
personal property
 By way of exclusion
Interest in business was not specifically enumerated
as personal property in the Civil Code in force at the
time the above decision was rendered. Yet, interest
in business was declared to be personal property
since it is capable of appropriation and not included
in the enumeration of real properties. Article 414 of
the Civil Code provides that all things which are or
may be the object of appropriation are considered
either real property or personal property. Business is
likewise not enumerated as personal property under
the Civil Code. Just like interest in business,
however, it may be appropriated. Following the
ruling in Strochecker v. Ramirez, business should also
be classified as personal property. Since it is not
included in the exclusive enumeration of real
properties under Article 415, it is therefore
personal property. (Laurel v. Abrogar)
Real property which by any special
provision of law is considered as
personalty;
 Growing crops for purposes of Chattel
Mortgage Law can be classified as a movable
property
 The fish in fishponds will be considered as
personal property for purposes of theft as
expressly provided for under the Revised Penal
Code.
Property | VENTEROSO
Forces of nature which are brought under
control by science; and
RULE: If these forces of nature are brought under
the control of man through the help of science,
thereby becoming appropriable, they are now
considered as property and classified as personal
property.
Ex. Electricity, gas, light
In the assailed Decision, it was conceded that in
making the international phone calls, the human
voice is converted into electrical impulses or electric
current which are transmitted to the party called. A
telephone call, therefore, is electrical energy. It was
also held in the assailed Decision that intangible
property such as electrical energy is capable of
appropriation because it may be taken and carried
away. Electricity is personal property under Article
416 (3) of the Civil Code, which enumerates "forces
of nature which are brought under control by
science. (Laurel v. Abrogar)
In general, all things which can be
transported from place to place without
impairment of the real property to which
they are fixed.
RULE: Must be transferrable from place to place
and must not be included in the real property
contemplated under Art 415
Ex. Machineries not attached to land
Test of movable character
1) Test by exclusion – whether the property was
not enumerated in Art 415 (expression unius est
exclusion alterius). This is the superior test
2) Test by description – whether the property
can be transported or carried from place to
place; whether such change of location can be
made without injuring the immovable to which
the object may be attached; unless expressly
included in Art 415
Definition of personal property in the crime of
theft
Consequently, any property which is not included in
the enumeration of real properties under the Civil
Code and capable of appropriation can be the
subject of theft under the Revised Penal Code.
The only requirement for a personal property to be
the object of theft under the penal code is that it be
capable of appropriation. It need not be capable of
"asportation," which is defined as "carrying away."
Jurisprudence is settled that to "take" under the theft
provision of the penal code does not require
asportation or carrying away. (Laurel v. Abrogar)
Article 417
The following are also considered as personal
property:
9
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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. (336a)
Rights and chose in action
Rights which create on the part of the creditor a right
to demand performance of an obligation is personal
property
Chose in action - A chose in action or thing in action
is a right to sue, right to bring an action, right to recover
a debt or money
Shares of stock and memberships
Shares of stock of agricultural, commercial and
industrial entities are personal property, although they
may have real estate. Membership shares in a golf club
is considered movable or personal property
Article 418
Movable property is either consumable or
nonconsumable. 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 the others.
(337)
 consumable or nonconsumable
 based on the intention of the parties
or use
consumable – movable which cannot be used in a
manner appropriate to its nature without being
consumed
 fungible or non-fungible
 based on its nature
fungible – capable of being replaced by a thing of the
same kind
Article 419
Property is either of public dominion or of private
ownership.
Properties are owned either in
1) public capacity (dominio publico)
2) private capacity (propiedad privado)
Public dominion
1) those intended for public use
2) those intended for some public service
3) those intended for the development of the
national wealth
Private ownership
1) patrimonial property of the State
2) patrimonial property of the LGU
3) property belonging to private individuals
Property | VENTEROSO
Article 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 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. (339a)
Kinds of property of public dominion
1) Those that are intended for public use
2) Those that are intended for some public service
3) Those that are intended for the development
of national wealth
Purpose
Their purpose is not to serve the State as a juridical
person, but the citizens; they are intended for the
common and public welfare, and so they cannot be the
object of appropriation, either by the State or by
private persons
Characteristics
1) They are outside of commerce of men -
Being outside the commerce of man, it cannot
be alienated or leased or otherwise be the
subject matter of contracts.
When certain public streets in Caloocan City were
converted into flea markets and leased to several
vendors, the Supreme Court held that such leases
were null and void since a public street is property
for public use hence outside the commerce of man.
Being outside the commerce of man, it may not be
the subject of lease or other contract. (Dacanay v.
Asistio)
The Roppongi property is correctly classified under
paragraph 2 of Article 420 of the Civil Code as
property belonging to the State and intended for
some public service (Laurel v. Garcia)
The Court voided the joint venture agreement
between PEA and Amari since the former conveyed
to the latter submerged lands, which are declared to
be part of the State’s inalienable natural resources,
hence, absolutely inalienable. (Chavez v. PEA)
2) They are not subject to appropriation and
acquisitive prescription
For as long as the property belongs to the State,
although already classified as alienable or disposable,
it remains property of public dominion if when it is
intended for some public service or for the
development of the national wealth. It is only when
such alienable and disposable lands are
expressly declared by the State to be no longer
intended for public service or for the
10
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
development of the national wealth that the
period of acquisitive prescription can begin to
run. (Heirs of Malabanan v. Republic)
3) They cannot be registered
4) They cannot be subject to execution or
attachment
It is evident that the movable and immovable
property of a municipality, necessary for
governmental purpose, may not be attached and sold
for the payment of a judgment against the
municipality. The supreme reason for this rule is the
character of the public use to which such kind of
property is devoted. The necessity for government
service justifies that the property of public of the
municipality be exempt from execution just as it is
necessary to exempt certain property of private
individuals in accordance with section 452 of the
Code of Civil Procedure. (Vda de Tan Toco v.
Municipal Council of Iloilo)
5) They cannot be subject to voluntary
easements
Easements
Privilege to pass over the land of another,
 Dominant Estate – holder of the estate,
acquires only a reasonable and usual
enjoyment of the property
 Servient Estate – owner of the land,
retains the benefits and privileges of
ownership consistent with the
easement
Article 649. The owner, or any person who by virtue
of a real right may cultivate or use any immovable,
which is surrounded by other immovables pertaining
to other persons and without adequate outlet to a
public highway, is entitled to demand a right of way
through the neighboring estates, after payment of
the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the
needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of
the value of the land occupied and the amount
of the damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded
by others and for the gathering of its crops through
the servient estate without a permanent way, the
indemnity shall consist in the payment of the
damage caused by such encumbrance.
This easement is not compulsory if the isolation
of the immovable is due to the proprietor's own
acts. (564a)
The lot on which the stairways were built is for the
use of the people as passageway to the highway
belongs to the State. Consequently, it is a property
of public dominion. And considering that the said
Property | VENTEROSO
lot is a property of public dominion, it cannot be
burdened by a voluntary easement or right of
way in favor of Villarico. In fact, its use by the
public is by mere tolerance of the government
through the DPWH. Hence, Villarico cannot
appropriate it for himself and he cannot claim any
right of possession over it (Villarico v. Sarmiento)
Intent to devote is sufficient
For a property of the State to fall under public
dominion, it is not necessary that the same be actually
used for some public use or for some public service.
Intent to devote is sufficient
If the property has been intended for such use or
service, and it has not been devoted to other uses and
no measures have been adopted which amount to
a withdrawal thereof from public use or service, the
same remains property of public dominion, the fact
that it is not actually devoted for public use or service
notwithstanding
In order to be property of public dominion an
intention to devote it to public use is sufficient
and it is not necessary that it must actually be
used as such.
It is not necessary, therefore, that a plaza be already
constructed or laid out as a plaza in order that it be
considered property for public use. It is sufficient
that it be intended to be such. In the case at bar, it
has been shown that the intention of the lawmaking
body in giving to the City of Manila the extension to
the Luneta was not a grant to it of patrimonial
property but a grant for public use as a plaza.
(Manila Lodge v. Court of Appeals)
Public use v. public service
Public use Public service
May be used May be used only by
indiscriminately by the those that are
public authorized by proper
authority
PROPERTIES FOR PUBLIC USE
Art 420
1) Roads
2) Canals
3) Rivers
4) Torrents
5) Ports constructed by the State
6) Bridges constructed by the State
7) Banks
8) Shores
9) Roadsteads
10) Other similar character
The Water Code of the Philippines (PD 1067)
1) Rivers and their natural beds;
2) Continuous or intermittent waters of springs
and brooks running in their natural beds and
the beds themselves;
3) Natural lakes and lagoons;
11
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

4) All other categories of surface waters such as

water flowing over lands, water from rainfall
whether natural or artificial, and water from
agriculture runoff, seepage and drainage;
5) Atmospheric water;
6) Subterranean or ground waters; and
7) Seawater.
Waters found on private lands
1) Continuous or intermittent waters rising on
such lands;
2) Lakes and lagoons naturally occurring on such
lands;
3) Rain water falling on such lands;
4) Subterranean or ground waters; and
5) Water in swamps and marshes.
Includes
1) The running waters
2) The bed
Extent of river bed
The natural bed or channel of a creek or
river is the ground covered by its waters
during the highest floods (Binalay v.
Manalo)
3) The banks
Extent of river banks
Those lateral strips or zones of its beds
which are washed by the stream only during
such high floods as do not cause such
inundations (Hilario v. City of Manila)

Accretions on rivers
Roads
Public domain Private ownership
National Provincial, city,
municipal Man-made accretion Accretions on river
banks, however, belong
Art 420 Art 424
to the owner of lands
National highways and Properties of public
adjoining the banks
roads constructed and dominion of the local
Not formed solely by the The deposit is due to the
maintained by the government unit
natural effect of the effects of the current of
national government concerned
water current of the river the river
through the DPWH
bordering said land but is
Includes right of way
also the consequence of
the direct and deliberate
Canals intervention of man
Canal – artificial waterway, drainage, irrigation, or
navigation Riparian Littoral
River Sea
Public domain Private ownership May be private Lands added to the
Canals constructed by Canals constructed by property if the alluvium shores by accretions and
the State and devoted to private persons within formed due to the effects alluvial deposits caused
public use their private lands and of the current of the by the action of the sea,
devoted exclusively for river form part of the public
private use domain
May not be subject to May be subject to
prescription prescription Ports constructed by the State
Must be situated within a Must be within Includes
public property properties of exclusive 1) Seaports
ownership
2) Airports
xxxif the appellant and her predecessors-in-interest
The charging of fees to the public does not
had acquired any right to the creek in question by
determine the character of the property whether it is
virtue of excavations which they had made thereon,
of public dominion or not. Article 420 of the Civil
they had lost such right through prescription,
Code defines property of public dominion as one
inasmuch as they failed to obtain, and in fact
‘intended for public use.’ Even if the government
they have not obtained, the necessary
collects toll fees, the road is still ‘intended for
authorization to devote it to their own use to the
public use’ if anyone can use the road under the
exclusion of all others. The use and enjoyment of
same terms and conditions as the rest of the
a creek, as any other property susceptible of
public. The charging of fees, the limitation on the
appropriation, may be acquired or lost through
kind of vehicles that can use the road, the speed
prescription, and the appellant and her predecessors
restrictions and other conditions for the use of the
in interest certainly lost such right through the said
road do not affect the public character of the road.”
cause, and they cannot now claim it exclusively for
(MIAA v. CA)
themselves after the general public had been openly
using the same from 1906 to 1928. (Mercado v.
Macabebe) The MIAA, MCIAA and PFDA are all
instrumentalities of the government, with their real
Rivers properties being owned by the Republic, therefore,
they are exempt from real estate tax imposed by the
*must be totally public or totally private
local government. The only exception is when they
12

Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
lease their real property to a “taxable person” as
provided in Section 234 (a) of the Local
Government Code, in which case the specific real
property leased becomes subject to real estate tax.
(MIAA v. CA, MCIAA v. Lapu-Lapu, PFDA v.
CA)
Shores
Shores – understood to be that space which is
alternatively covered and uncovered by water with the
movements of the tides
 When the sea advances and private properties
are permanently invaded by the waves, the
properties so invaded become part of the shore
or beach and they then pass to the public
domain. The owner thus dispossessed does not
retain any right to the natural products
resulting from their new nature; it is a de facto
case of eminent domain, and not subject to
indemnity.
Riparian Littoral
River Sea
May be private property Lands added to the
if the alluvium formed shores by accretions and
due to the effects of the alluvial deposits caused
current of the river by the action of the sea,
form part of the public
domain
Foreshore lands
The strip of land that lies between the high and low
water marks and that is alternately wet and dry
according to the flow of the tide. (Republic v. CA)
Reclamation of foreshore lands
The conversion of unusable land into valuable real
estate by dredging, filling or other means of any
foreshore lands
Even private owners of lands adjoining bodies of
water, especially the sea and navigable waters, cannot
motu proprio undertake reclamation of shores and
submerged lands and claim title thereto. Unless the
State, through Congress, grants this right, it is only the
National Government that can undertake reclamation
work and assert title to reclaimed land.
Process of reclamation
1) conversion of unusable land into valuable real
estate by dredging, filling or other means of any
foreshore lands
2) The President to classify them as agricultural
lands
3) The government may then officially classify
these lands as alienable or disposable lands
open to disposition
4) The government may declare these lands no
longer needed for public service
Reclaimed lands Submerged areas
Parts of the foreshore lands
Property | VENTEROSO
The government may Submerged areas form
declare these lands no part of the public
longer needed for public domain, and in that state,
service are inalienable and
outside the commerce of
man.
The Court declared as invalid the joint venture
agreement between Public Estates Authority (PEA)
and Amari Coastal Bay Development Corporation
(Amari). In said case, PEA entered into a joint
venture agreement with Amari obligating itself to
convey title and possession over 750 hectares of
land, 592.15 hectares or 78% of the total area are still
submerged and permanently under the waters of
Manila Bay. Under the said agreement, the PEA
conveyed to Amari the submerged lands even before
their actual reclamation, although the
documentation of the deed of transfer and issuance
of the certificates of title would be made only after
actual reclamation. A question arose with respect to
the validity of this transaction. In declaring the
contract to be invalid the Supreme Court held:
“Submerged lands, like the waters (sea or bay)
above them, are part of the State’s inalienable
natural resources. Submerged lands are
property of public dominion, absolutely
inalienable and outside the commerce of man.
This is also true with respect to foreshore lands.
Any sale of submerged or foreshore lands is void
being contrary to the Constitution.” (Chavez v.
PEA)
Reclaimed lands such as the subject lands in issue are
reserved lands for public use. They are properties of
public dominion, the ownership remains with the
State unless they are withdrawn by law or
presidential proclamation for public use. Being
properties of public use, they are not subject to
execution or foreclosure sale. The Court thus
declared invalid the assessment, levy and foreclosure
made on the subject reclaimed lands by the City of
Paranaque.
The mere reclamation of these areas by PEA
does not convert these inalienable natural
resources of the State into alienable or
disposable lands of the public domain. There
must be a law or presidential proclamation officially
classifying these reclaimed lands as alienable or
disposable and open to disposition or concession.
Moreover, these reclaimed lands cannot be classified
as alienable or disposable if the law has reserved
them for some public or quasi-public use. (Republic
v. City of Paranaque)
SUMMARY
Foreshore lands (not Public dominion
yet reclaimed)
Foreshore lands GR: Public dominion
(reclaimed) XPN: a law or
presidential
proclamation is passed
officially classifying
these reclaimed lands as
13
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
alienable or disposable
and open to disposition
or concession
Submerged areas Public dominion
Lakes
Natural lakes and lagoons and their beds belong to the
State and are part of public dominion. Lakes and
lagoons naturally occurring on private lands also
belong to the State.
Public domain Private ownership
Naturally occurring Man-made
The Water Code of the
Philippines, however,
prohibits any person
from developing a lake,
stream or spring for
recreational purposes
without first obtaining a
permit from the
National Water
Resources Council.
Otherwise stated, where the rise in water level is due
to the “extraordinary” action of nature, rainfall
for instance, the portions inundated thereby are not
considered part of the bed or basin of the body of
water in question. It cannot therefore be said to be
foreshore land but land outside of the public
dominion, and land capable of registration as private
property. (Republic v. Alagad)
Other of similar character
Creeks - defined as a recess or arm extending from a
river and participating in the ebb and flow of the sea
PROPERTIES FOR PUBLIC SERVICE
All properties of the State that are devoted or intended
for some public service are likewise part of the public
dominion. these properties cannot be used
indiscriminately by anyone but only by those that are
authorized by proper authority.
Roponggi property
Roppongi property is one of the four (4) properties in
Japan acquired by the Philippine government under the
Reparations Agreement entered into with Japan in
1956. Under the said agreement, the Roppongi
property was specifically designated to house the
Philippine Embassy. As such, the nature of the
Roppongi lot as property for public service is expressly
spelled out. As property of public dominion, the
Roppongi lot is outside the commerce of men and
cannot be alienated.
PROPERTIES FOR DEVELOPMENT OF
NATIONAL WEALTH
This class of property constituted property of public
dominion although employed for some economic or
commercial activity to increase the national wealth.
Property | VENTEROSO
Article 421
All other property of the State, which is not of the
character stated in the preceding article, is
patrimonial property. (340a)
Patrimonial properties
1) Patrimonial property of the State – Art 421,
422
 By nature (Art 421)
 By conversion (Art 422)
2) Patrimonial property of LGUs – Art 423, 424
Examples
1) Friar lands -- can be alienated only upon proper
compliance with the requirements of Act No.
1120 or the Friar Lands Act.
2) Lands covered by Republic Act 7227 – such
lands remained property of public dominion
notwithstanding their status as alienable and
disposable. It is upon their sale as authorized
under BCDA law to a private person that such
lands become private property and ceased to be
of public dominion (Heirs of Malabanan v.
Republic)
For as long as the property belongs to the State,
although already classified as alienable or disposable,
it remains property of public dominion if when it is
intended for some public service or for the
development of the national wealth. It is only when
such alienable and disposable lands are
expressly declared by the State to be no longer
intended for public service or for the
development of the national wealth that the
period of acquisitive prescription can begin to
run. (Heirs of Malabanan v. Republic)
Has the intention of the government regarding the
use of the property been changed because the lot has
been Idle for some years? Has it become
patrimonial?
The fact that the Roppongi* site has not been used
for a long time for actual Embassy service does not
automatically convert it to patrimonial property. Any
such conversion happens only if the property is
withdrawn from public use. A property continues to
be part of the public domain, not available for
private appropriation or ownership until there is a
formal declaration on the part of the government to
withdraw it from being such.
Even if the Roppongi property is patrimonial
property of the State, then President Corazon
Aquino could not sell it since there was no law
authorizing her to do so (Laurel v. Garcia)
*Roponggi property – acquired from the Japanese
government as indemnification of the Filipino
people for the losses suffered during World War II
Comparison of Sec 14 (1) and Sec 14 (2), PD 1529
Sec 14 (1) Sec 14 (2)
14
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

Refers to registration of Entitles the applicant to 2) The property has been declared alienable and
title on the basis of the registration of his disposable
possession. property on the basis of 3) There is an express government declaration or
prescription. manifestation that the property is already
patrimonial
4) Such declaration shall be in the form of a law
Registration is extended Registration is made
duly enacted by Congress or a Presidential
under the aegis of the available both by P.D.
Proclamation in cases where the President is
P.D. No. 1529 and the No. 1529 and the Civil
duly authorized by law
Public Land Act (PLA). Code.
Article 422
Property of public dominion, when no longer
The 30-year period is in ● Ordinary intended for public use or for public service, shall
relation to possession Prescription– form part of the patrimonial property of the State.
without regard to the 10 years, good (341a)
Civil Code. faith and with
just title Patrimonial property by conversion
● Extraordinary RULE: whether public or patrimonial — is predicated
Prescription – on the manner it is actually used, or not used
30 years,  there must be an affirmative act, either on the
regardless of part of executive or the legislative, to reclassify
good faith and property of the public dominion into
patrimonial
just title
 The intention to reclassify must be clear,
definite and must be based on correct legal
Those who by Those who have premises.
themselves or through acquired ownership of
their predecessors in private lands by Requisites
interest have been in 1) prescription under the 1) The property must no longer be used for the
open, continuous, provision of existing purpose to which it is intended (non-use)
exclusive, and laws may apply. (PD 2) there must be an affirmative act, either on the
notorious possession 1529, Sec 14 (2)) part of executive or the legislative, to reclassify
and occupation property of the public dominion into
2) alienable and patrimonial
disposable lands of
the public domain, In Cebu Oxygen Acetylene v. Bercilles, the City
3) under a bona fide Council of Cebu by resolution declared a certain
claim of acquisition of portion of an existing street as an abandoned road,
ownership, since June “the same not being included in the city
development plan.” Subsequently, by another
12, 1945 may apply.
resolution, the City Council of Cebu authorized the
(PD 1529, Sec 14 (1))
acting City Mayor to sell the land through public
bidding. Although there was no formal and explicit
Does not require that Require that the lands declaration of conversion of property for public use
the lands should have should have been into patrimonial property, the Supreme Court
been alienable and  alienable and declared the withdrawal of the property in question
disposable during the disposable from public use and its subsequent sale as valid
entire period of during the
possession. entire period Since then, the Philippine Government has failed to
develop the Roponggi property. In 1985, the
of possession
Executive Department passed an administrative
and order creating a committee to study the disposition
 expressly or utilization of some properties, including the
declared by the Roponggi property. In 1987, the President issued
State as Executive Order No. 296 providing that some
patrimonial. properties, including the Roponggi property, be
made available for sale or lease to non-Filipinos.
Answering the question as to whether the Roponggi
Requisites to establish that the subject land has property has been converted into patrimonial
been converted to patrimonial property property, the Supreme Court held that abandonment
1) The subject property has been classified as of the intention to use the Roponggi property for
agricultural land public service and to make it a patrimonial property
“cannot be inferred from the non-use alone specially
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Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
if the non-use was attributable not to the
government’s own deliberate and indubitable will
but to a lack of financial support to repair and
improve the property.” The Court likewise ruled
that E.O. No. 296 does not declare that the
property has lost its public character since the
executive order merely intends to make the
properties available to foreigners and not to
Filipinos. It was based on the wrong premise or
assumption that the Roponggi was earlier converted
into alienable real property (Laurel v. Garcia)
Article 423
The property of provinces, cities, and municipalities
is divided into property for public use and
patrimonial property. (343)
Article 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 for 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.
(344a)
Properties of LGU
1) properties of public use
 public use – those expressly
enumerated
 public service – those not mentioned in
Art 424 (1) but is held and devoted for
governmental purpose such as local
administration, public education and
public health
2) patrimonial property – owned by the LGUs in
its private or proprietary capacity and shown to
have been acquired with its private or
corporate funds
The principle itself is simple: If the property is
owned by the municipality (meaning municipal
corporation) in its public and governmental capacity,
the property is public and Congress has absolute
control over it (HELD IN TRUST). But if the
property is owned in its private or proprietary
capacity, then it is patrimonial and Congress has no
absolute control. The municipality cannot be
deprived of it without due process and payment of
just compensation
According to the Court, if the norm obtaining under
the Civil Code is to be followed, those properties of
the LGUs not mentioned under Art 424 (1) will
necessarily classified as patrimonial property,
including those properties for public service in the
LGUs. Hence, the Court followed the norm
obtaining under the principles constituting the law
of Municipal Corporations. Under this norm, to be
considered public, it is enough that the property be
Property | VENTEROSO
held and devoted for governmental purposes like
local administration, public education, public health
etc. Nonetheless, the Court clarified that the
classification of properties in the municipalities,
other than those for public use, as patrimonial under
Art 424 (2) is without the prejudice to the provisions
of special laws. (Province of Zamboanga del
Norte v. City of Zamboanga)
Characteristics of properties for public use of
LGUs
1) They are not alienable or disposable
2) They are not subject to registration under the
PD 1529 and cannot be subject to Torrens
Title
3) They are not susceptible to prescription
4) They cannot be leased, sold, or otherwise be
the object of a contract
5) They cannot be burdened by any voluntary
easements
Provincial roads, city streets, municipality streets
xxlocal governments have no authority whatsoever
to control or regulate the use of public properties
unless specific authority is vested upon them by
Congress. One such example of this authority given
by Congress to the local governments is the power
to close roads as provided in Section 10, Chapter II
of the Local Government Code.
However, the aforestated legal provision which gives
authority to local government units to close roads
and other similar public places should be read and
interpreted in accordance with basic principles
already established by law. These basic principles
under Art 424 have the effect of limiting such
authority of the province, city or municipality to
close a public street or thoroughfare.
Aside from the requirement of due process which
should be complied with before closing a road, street
or park, the closure should be for the sole
purpose of withdrawing the road or other public
property from public use when circumstances
show that such property is no longer intended or
necessary for public use or public service. When
it is already withdrawn from public use, the property
then becomes patrimonial property of the local
government unit concerned. It is only then that the
municipality can "use or convey them for any
purpose for which other real property belonging to
the local unit concerned might be lawfully used or
conveyed" in accordance with the last sentence of
Section 10, Chapter II of Blg. 337, known as Local
Government Code. (Macasiano v. Diokno)
Macasiano case Cebu Oxygen Case
The Municipal Order is The order of the City
void Council is valid
For the purpose of For the purpose of
setting up flea markets declaring the terminal
and vending areas roads as abandoned
Squares, fountains, public waters, promenades etc
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
In Espiritu v. Municipal Council of Pozorrubio,
the Supreme Court held that town plaza cannot be
used for the construction of market stalls, specially
of residences, and that such structures constitute a
nuisance subject to abatement according to law
Reclaimed lands
In several instances, however, the State delegated to
specific municipalities the right to reclaim land. The
rule remained, nonetheless, that no person, public or
private, could undertake reclamation work and own the
land they reclaimed without a specific grant from
Congress.
R.A. No. 7160, otherwise known as the Local
Government Code of 1991, likewise empowers local
government units to undertake reclamation projects by
themselves or through contractors.
RULE: Whether reclaimed lands transferred to a
public or municipal corporation are public in nature or
patrimonial depends upon the legislative intent.
In Chavez v. Public Estates Authority, the
Supreme Court likewise held that “reclaimed
alienable lands of the public domain if sold or
transferred to a public or municipal corporation
for a monetary consideration become
patrimonial property in the hands of the public
or municipal corporation” and “once converted to
patrimonial property, the land may be sold by the
public or municipal corporation to private parties,
whether Filipino citizens or qualified private
corporations.”
Article 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.
(345a)
Property of private ownership
1) patrimonial property of the State, provinces,
cities, and municipalities
2) all property belonging to private persons, either
individually or collectively
All lands are presumed, however, to be public lands
until the contrary is established.
Art XII, 1987 Constitution
Section 7. Save in cases of hereditary succession, no
private lands shall be transferred or conveyed except
to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain
Acquire Lease
Filipino 12 has 500 has
citizens
Private NO 1000 has
corporation/
association
Property | VENTEROSO
Aliens GR: Cannot GR: valid
acquire XPN: if
XPN: employed as a
hereditary scheme to
succession circumvent the
(intestate) Constitutional
prohibition
The Court struck down a lease contract of a parcel
of land in favor of a foreigner for a period of 99 years
with an option to buy the land for 50 years. Where a
scheme to circumvent the Constitutional
prohibition against the transfer to aliens is
readily revealed as the purpose for the contracts,
then the illicit purpose becomes the illegal
cause rendering the contracts void. (PBC v. Lui
She)
The Court abandoned the application of in pari delicto
rule and allowed the recovery of property by the
Filipino vendor
Article 1416. When the agreement is not illegal per
se but is merely prohibited, and the prohibition by
the law is designed for the protection of the plaintiff,
he may, if public policy is thereby enhanced, recover
what he has paid or delivered. (PBC v. Lui She)
The rule is that if land is invalidly transferred to an
alien who subsequently becomes a Filipino
citizen or transfers it to a Filipino citizen, the
flaw in the original transaction is considered
cured and the title of the transferee is rendered
valid. (Fullido v. Grilli)
The subject property cannot be declared conjugal
property of the Filipino and foreigner spouses
because to do so would permit indirect
contravention of the constitutional prohibition.
(Cheeseman v. IAC)
Xxsave for the exception provided in cases of
hereditary succession, the foreigner’s
disqualification from owning the lands in the
Philippines is absolute. Not even an ownership in
trust is allowed. The foreigner spouse is not entitled
to seek reimbursement on the ground of equity.
Allowing reimbursement would in effect permit the
foreigner spouse to enjoy the fruits of a property
which he is not allowed to own. (Muller v. Muller)
In J.G. Summit Holdings, Inc. v. Court of
Appeals, the Court clarified that the prohibition in
the Constitution applies only to ownership of lands
and it does not extend to other real property as
defined in Article 415 of the Civil Code.
Otherwise, the Court added, we would have a
strange situation where the ownership of immovable
property such as trees, plants and growing fruit
attached to the land would be limited to Filipinos
and Filipino corporations only.
Provisions Common to the Three Preceding
Chapters
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

Article 426 10) the right to accessions. (Art. 440, NCC) – jus
Whenever by provision of the law, or an individual accessiones
declaration, the expression "immovable things or
property," or "movable things or property," is used, Other real rights aside from ownership
it shall be deemed to include, respectively, the things 1) real rights over one’s own property (jus in re
enumerated in Chapter 1 and Chapter 2. propria)
2) real rights over the property of another (jus in
Whenever the word "muebles," or "furniture," is
re aliena)
used alone, it shall not be deemed to include money,
credits, commercial securities, stocks and bonds,  Examples of jus in re aliena are usufruct,
jewelry, scientific or artistic collections, books, easement, possession and mortgage
medals, arms, clothing, horses or carriages and their  These rights presuppose the existence of an
accessories, grains, liquids and merchandise, or other ownership
things which do not have as their principal object the
furnishing or ornamenting of a building, except Subject matters
where from the context of the law, or the individual 1) Things
declaration, the contrary clearly appears. (346a) 2) Rights

TITLE II Article 428

OWNERSHIP The owner has the right to enjoy and dispose of a
thing, without other limitations than those
CHAPTER 1 established by law.
Ownership in General
The owner has also a right of action against the
Article 427 holder and possessor of the thing in order to recover
Ownership may be exercised over things or rights. it. (348a)
(n)
Rights to:
Justice J.B.L. Reyes. ownership - “an independent 1) Enjoy – jus utendi
right of exclusive enjoyment and control of the thing  Includes the right to the fruits (jus
for the purpose of deriving therefrom all advantages fruendi), the right to possess (jus
required by the reasonable needs of the owner (holder possidendi) and the right to abuse or
of the right) and the promotion of the general welfare consume (jus abutendi) and rights to
but subject to the restrictions imposed by law and the accession (jus accessiones)
right of others.” 2) Dispose – jus disponendi
3) Recover – jus vindicandi
The Civil Code does not define ownership. Instead, the
Code simply enumerates the rights which are included Right to use and abuse
therein, as follows: The essence of ownership is the right of the owner to
1) the right to enjoy the property (Art. 428, par. 1, freely enjoy either the property itself or the benefits
NCC) - jus utendi derived therefrom
2) the right to dispose the property (Art. 428, par.
1, NCC); - jus disponendi Right to use Right to abuse
3) the right to recover the property from any Employing the thing for Not to the point of
holder or possessor (Art. 428, par. 2, NCC); - which it is fit destroying, but only use
jus vindicandi that extinguishes or that
4) the right to exclude any person from consumes
enjoyment and disposal of the property (Art.
429, NCC); - jus utendi Right to dispose
5) the right to enclose or fence the land or The power of the owner to dispose of his property
tenement (Art. 430, NCC); - jus utendi includes the power to alienate, to encumber, to limit,
6) the right to demand indemnity for damages to transform, to destroy and to merge.
suffered due to lawful interference by a third
person to avert an imminent danger (Art. 432, Right to recover
NCC); Jus possidendi Jus possessionis
7) the right to just compensation in case of Possession as an Possession as a right
incident of ownership or independent and apart
eminent domain (Art. 435, NCC);
a right included in from ownership
8) the right to construct any works or make any
ownership
plantations and excavations on the surface or
subsurface of the land (Art. 437, NCC); While undeniably, under the law, jus possidendi is a
9) the right to hidden treasure found in the necessary incident of ownership, the owner, however,
owner’s property (Art. 438, NCC); and cannot exercise this right to the prejudice of a party
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Property | VENTEROSO
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whose possession is predicated on a contract like 1) initially, possession of the property by the
agency, trust, pledge or lease. A party vested with the defendant was by contract with or by
right of possession to the property may set up this right tolerance of the plaintiff
even against the owner thereof. Thus, owners or 2) eventually, such possession became illegal
possessors of a property have no authority to use force upon notice and demand by plaintiff to
and violence to eject alleged usurpers who were in prior defendant of the termination of the latter’s
physical possession of it. right of possession – jurisdictional in
nature
Article 536. In no case may possession be acquired 3) the defendant remained in possession of
through force or intimidation as long as there is a the property and deprived the plaintiff of
possessor who objects thereto. He who believes that the enjoyment thereof
he has an action or a right to deprive another of the 4) within one year from the last demand
holding of a thing, must invoke the aid of the on defendant to vacate the property, the
competent court, if the holder should refuse to plaintiff instituted the complaint for
deliver the thing. (441a) ejectment
Actions for recovery of possession
Forcible entry Unlawful detainer
Real property
the person who Possession is withheld
1) Accion interdictal originally held it was after the expiration or
2) Accion publiciana deprived of possession termination of the right
3) Accion reivindicatoria by “force, intimidation, to hold possession, by
threat, strategy, or virtue of any a lessor,
Personal property stealth.” vendor, vendee, or other
Replevin person against whom the
possession of any land or
Accion interdictal building is unlawfully
 summary action withheld contract,
 seeks the recovery of physical possession express or implied.
where the dispossession has not lasted for Possession of the Possession of the
defendant is illegal from defendant is illegal from
more than one year and is to be exclusively
the very beginning the termination of right
brought in the proper inferior court
Title is not the issue, but who among the plaintiff
 The issue involved is material possession or and defendant should be entitled to material
possession de facto possession
 comprises two distinct causes of action
XPN: when determination of ownership is
1) forcible entry (detentacion) - Forcible entry necessary to resolve
is a summary action to recover material or A party who can prove Defendant remained in
physical possession of real property when the prior possession can possession of the
person who originally held it was deprived of recover such possession property and deprived
possession by “force, intimidation, threat, even against the owner the plaintiff of the
strategy, or stealth.” himself; no matter how enjoyment thereof
long or short the
possession Plaintiff need not prove
Requisites of MTC to acquire jurisdiction
prior possession
 Plaintiffs must allege their prior Within the exclusive and original jurisdiction of the
physical possession of the property Metropolitan or Municipal Trial Courts
 They were deprived by force, Must be brought within 1 year
intimidation, threat, strategy, stealth Must be filed 1 year from Must be filed 1 year from
 Must be filed within 1 year from the date of actual entry last demand
time the owners or legal possessors
learned of their deprivation or physical Stealth – from
possession of the land or building discovery
Not processes to determine actual title
2) unlawful detainer (desahuico). - may be filed
when possession by “after the expiration or Relevance of 1 year prescriptive period
termination of the right to hold possession, by Article 555. A possessor may lose his possession:
virtue of any a lessor, vendor, vendee, or
other person against whom the possession (1) By the abandonment of the thing;
of any land or building is unlawfully
(2) By an assignment made to another either by
withheld contract, express or implied.”
onerous or gratuitous title;
Requisites
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Property | VENTEROSO
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(3) By the destruction or total loss of the thing, or 2) will not bar an action between the same parties
because it goes out of commerce; respecting title to the land or building
3) not a collateral attack proscribed by Sec 48 PD
(4) By the possession of another, subject to the 1529
provisions of article 537, if the new possession XPN: When the issue of ownership is raised by the
has lasted longer than one year. But the real defendant in his pleadings and the question of
right of possession is not lost till after the lapse possession cannot be resolved without deciding the
of ten years. (460a)
issue of ownership, the issue of ownership shall be
resolved only to determine the issue of possession
GR: Action for recovery
(provisional only)
1) will not bind the title or affect the ownership
of the land or building
Accion reivindicatoria
2) will not bar an action between the same parties
An action whereby plaintiff alleges ownership over a
respecting title to the land or building
parcel of land and seeks recovery of its full possession.
3) not a collateral attack proscribed by Sec 48 PD
1529
It is not a recovery of ownership
XPN: When the issue of ownership is raised by the
What happens in an accion reivindicatoria is that the
defendant in his pleadings and the question of
plaintiff has been deprived of the exercise of all the
possession cannot be resolved without deciding the
rights included in ownership and what he seeks to
issue of ownership, the issue of ownership shall be
recover by filing such an action is, in reality, only the
resolved only to determine the issue of possession
exercise of the rights included in ownership.
(provisional only)
Interdictal Publiciana Reivindicatoria
Accion publiciana Possession de Possession de Possession as
An action for recovery of the right to possess and is a facto jure (jus incident to
plenary action in an ordinary civil proceeding to possessionis) ownership (jus
determine the better right of possession (possession de possidendi)
jure) of realty independent of the title or ownership of MTC, MeTC MTC – Metro MTC – Metro
the property Manila, assessed Manila, assessed
value does not value does not
 can be filed when the dispossession lasted for more exceed 50,000 exceed 50,000
than 1 year RTC – Metro RTC – Metro
 used to refer to an ejectment suit where the cause Manila, assessed Manila, assessed
of dispossession is not among the grounds for value > 50,000 value > 50,000
forcible entry or unlawful detainer or when MTC – outside MTC – outside
Metro Manila, Metro Manila,
possession has been lost for more than one year assessed value assessed value
and the action can no longer be maintained under does not exceed does not exceed
Rule 70 20,000 20,000
 the objective is to recover possession only RTC – outside RTC – outside
 not conclusive on the issue of ownership Metro Manila, Metro Manila,
assessed value > assessed value >
 jurisdiction shall depend on the location of the 20,000 20,000
realty and its assessed value Not a direct or collateral attack to title
 MTC – Metro Manila, assessed value
does not exceed 50,000 Article 429
 RTC – Metro Manila, assessed value > The owner or lawful possessor of a thing has the
50,000 right to exclude any person from the enjoyment and
 MTC – outside Metro Manila, assessed disposal thereof. For this purpose, he may use such
value does not exceed 20,000 force as may be reasonably necessary to repel or
 RTC – outside Metro Manila, assessed prevent an actual or threatened unlawful physical
value > 20,000 invasion or usurpation of his property. (n)

Accion publiciana Accion interdictal Doctrine of self-help / special mitigating

Plenary action Summary action circumstance of complete or incomplete defense
Issue is the possession Issue is the possession of property
de jure or who has the de facto or material As a necessary consequence of ownership, the owner
better right possession has the right of exclusive enjoyment and control over
Must be brought within May be brought even his property, as well as to its exclusive possession. He
1 year aster 1 year may, therefore, exclude any person from its enjoyment
and disposal. This right of the owner is so important
GR: Action for recovery that the law deems it appropriate to allow him to “use
1) will not bind the title or affect the ownership such force as may be reasonably necessary to repel
of the land or building or prevent an actual or threatened unlawful
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Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
physical invasion or usurpation of his property.” It
must be judicial in nature
Who may invoke
1) owners
2) lawful possessors
When to invoke
1) in repelling actual unlawful physical invasion or
usurpation
2) in preventing threatened unlawful physical
invasion or usurpation
3) not when possession was already lost
Exception
Art 432 – State of necessity
Doctrine of self-help Recovery of
possession
Art 429 Art 428
Can be availed of when Can be availed when
there is actual or possession has already
threatened unlawful been lost
physical invasion or
usurpation
What kind of force is necessary
In order for defense of property to be appreciated as a
justifying circumstance, it is necessary that the means
employed to prevent or repel the aggression must also
be reasonable. In determining the reasonableness of
the means employed, the absence of an attack
against the person of the owner or lawful possessor
of the property must be considered since defense
of property is not of such importance as the right
to life and limb.
The doctrine of self-help can only be exercised at the
time of actual or threatened dispossession which is
absent in the case at bar. When possession has
already been lost, the owner must resort to
judicial process for the recovery of property.
Limitations on ownership
(German Management & Services v. CA)
Article 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. (388)
Right to enclose or fence
Corollary to the right to exclude others from the
enjoyment of his property, the owner of a parcel of
land or tenement has the right to enclose or fence the
same by whatever means.
Limitations
1) Must be in good faith
 If in bad faith, the lot owner is liable
for damages. REMEDY: resort to the
proper legal processes for the purpose
of obtaining recovery of possession
Property | VENTEROSO
pursuant to the provisions of Article
536 of the Civil Code.
2) It should not work detriment to the
servitudes constituted therein
On appeal to the Supreme Court, the High Court
sustained the award of exemplary damages in favor
of the Villafuertes. The Court held that Article 536
of the Civil Code explicitly provides for the proper
recourse of one who claims to be entitled to the
possession of a thing. When private respondents
personally took it upon themselves to evict
petitioners from their properties, which act was in
clear contravention of the law, they became liable for
all the necessary and natural consequences of their
illegal act. The Court further observed that private
respondents’ arbitrary conduct of fencing their
properties under the claim that they own the same
brazenly violates the law and circumvents the proper
procedure which should be obtained before the
court. (Villafuerte v. CA)
Article 431
The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third person.
(n)
Article 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. (349a)
Article 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. (n)
1) three inherent powers of the state
 police power – Art 436
 eminent domain – Art 435
 It is only where the owner is
unwilling to sell, or cannot
accept the price or other
conditions offered by the
vendee, that the power of
eminent domain will come into
play
 power of taxation
2) specific limitations established by law
 Legal easements which can be enforced
by law and, therefore, may be
established even against the will of the
owner of the servient estate.
 During a period of acute public want or
emergency, thoughtless extravagance
in expenses for pleasure or display may
21
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
be stopped by order of the courts at the
instance of any government or private
charitable institution
 Lands acquired under free patent or
homestead cannot be subject to
encumbrance or alienation within five
years from the issuance of the patent.
3) rights of third persons
 It is a well-settled principle, growing
out of the nature of well-ordered civil
society, that every holder of property,
however absolute and unqualified may
be his title, holds it under the implied
liability that his use of it shall
1) not be injurious to the equal
enjoyment of others having an
equal right to the enjoyment of
their property
2) nor injurious to the rights of the
community.
Article 432
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.
(n)
State of necessity
1) there must be a situation of grave peril, an
actual or imminent danger, either upon
 the person of the actor or
 a third person or
 third person’s property;
2) the interference is necessary to avert such
danger;
3) the threatened damaged, compared to the
damage arising to the owner from the
interference, is much greater and
4) the state of necessity must not be brought
about by the intentional provocation of the
party invoking the same
State of Necessity as Justifying Circumstance
Any person who, in order to avoid an evil or injury,
does an act which causes damage to another provided
that the following requisites are present:
1) That the evil sought to be avoided actually
exists;
2) That the injury feared be greater than that done
to avoid it;
3) That there be no other practical and less
harmful means of preventing it
Indemnity for damages
GR: The persons benefited by such interference are
duty bound to indemnify the owner for the damage
suffered by the latter.
Property | VENTEROSO
XPN: if the danger comes from the property subjected
to interference
State of necessity Doctrine of self-help
Art 432 Art 429
Invoked by another Invoked by the owner or
person lawful possessor
Note that it is not possible for the application of both
doctrines to result in conflict of rights.
Restrictions
1) Prohibition to alienate in gratuitous and
onerous contracts – shall not exceed 20 years;
otherwise, VOID
2) Payment of association dues – VALID
3) For preservation and to avoid overcrowding –
VALID
Article 433
Actual possession under claim of ownership raises
disputable presumption of ownership. The true
owner must resort to judicial process for the
recovery of the property. (n)
Presumption of ownership
GR: Actual possession under claim of ownership raises
disputable presumption of ownership
XPN: if there is proof to the contrary
Article 539. 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 filing
thereof. (446a)
Article 434
In an action to recover, the property must be
identified, and the plaintiff must rely on the strength
of his title and not on the weakness of the
defendant's claim. (n)
In civil cases, the law requires that the party who alleges
a fact and substantially asserts the affirmative of the
issue has the burden of proving it.
Article 434 of the New Civil Code provides that to
successfully maintain an action to recover the
ownership of a real property, the person who claims a
better right to it must prove two (2) things:
1) the identity of the land claimed; and (PROOF
OF IDENTITY)
22
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
 By describing the location, area and
boundaries
 Must be of such a character as to
definitely and accurately segregate the
land in question from the adjoining
property
 Boundary prevails over the area
mentioned in the description
 No need to prove identity if the
plaintiff has already proved his right to
ownership
2) his title thereto (PROOF OF TITLE)
 an original certificate of title indicates
true and legal ownership by the
registered owners over the disputed
premises.
 Tax declarations are not conclusive
proof of ownership, but it is the best
proof of possession. When coupled
with proof of actual possession, they
are strong evidence of ownership
If the plaintiff is unable to prove any of the foregoing
requisites, his action will fail even if the defendant
cannot prove his title to the property.
Adjudication of ownership
In an accion reivindicatoria, the adjudication of ownership
includes the delivery of possession if the defeated party
has not shown any right to possess the land
independently of rejected claim of ownership
Article 437
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.
(350a)
Right to sub-surface and airspace
Ad coelum rule - To whomsoever the soil belongs, he
owns also to the sky and to the depths to such an extent
that he was able to obtain some benefit or enjoyment
Limitations
1) that it cannot work detriment to servitudes or
easements;
2) that it is subject to special laws and ordinances;
and
3) that it is subject to reasonable requirements of
aerial navigation
4) it cannot prejudice rights of third persons
GR: The ownership of land extends to the surface as
well as to the subsoil underneath. Rights over land are
indivisible
Property | VENTEROSO
XPN: Minerals found underneath the land are
properties of the State (La’Bugal Blaan v Ramos)
In finding the arguments of NAPOCOR to be
without merit, the Supreme Court held that pursuant
to Article 437 of the Civil Code, the ownership of
land extends to the surface as well as to the subsoil
under it. The Court explained that the argument by
the petitioner that the landowners’ right extends to
the sub-soil insofar as necessary for their practical
interests serves only to further weaken its case
because the theory would limit the right to the sub-
soil upon the economic utility which such area offers
to the surface owners. Presumably, according to the
Court, the landowners’ right extends to 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. In this case, the landowners could
have dug upon their property motorized deep wells
but were prevented from doing so by the authorities
precisely because of the construction and existence
of the tunnels underneath the surface of their
property. Hence, the land owners still had a legal
interest in the sub-terrain portion insofar as they
could have excavated the same for the construction
of the deep well. (NPC v. Ibrahim)
Article 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. (351a)
Article 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. (352)
Rights to hidden treasures
“Hidden treasure” is understood to be any hidden and
unknown deposit of money, jewelry, or other precious
objects, the lawful ownership of which does not
appear.
Requisites
1) the deposit of money, jewelry or other
precious objects must be hidden or unknown
(may include discovery through maps)
XPN: Regalian doctrine reserves to the State
all natural wealth that may be found in the
bowels of earth
2) the lawful ownership of which must not appear
23
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

RULES: 1) Accession discreta - right of the owner by

GR: accession to everything which is produced by
1) If the finder is the owner – the treasure shall the property
belong to him Types
2) If finder is a third person – ½  Natural fruits
Provided,  Civil fruits
 He is not a trespasser  Industrial fruits
 The discovery of treasure is only by 2) Accession continua - right of the owner to
chance anything which is incorporated or attached
to his property, whether such attachment is
XPN: If the thing found be of interest to science and through natural or artificial causes
art, the State may acquire them by paying just price  Immovable property
 Industrial accession – artificial
Limitations as to the right to airspace incorporation (building,
1) He is bound by the height restrictions planting, sowing)
annotated in the certificate of title if he  Natural accession –
acquired the property to such restrictions incorporation through natural
2) For properties situated near the airport, their means
owners cannot complain of the reasonable a) Alluvion
requirements of aerial navigation. They are b) Avulsion
required to secure a height clearance permit c) Change of course of river
from the Air Transportation Office (ATO), d) Formation of islands
which permit is pre-requisite for the issuance  Movable property
of a building permit  Adjunction or conjunction
3) For properties far from the airport, they are  Inclusion
subject to the provisions of the National (engraftment)
Building Code and local ordinances.  Soldadura (attachment)
 Tejido (weaving)
CHAPTER 2  Pintura (painting)
Right of Accession  Escritura (writing)
 Commixtion or confusion
GENERAL PROVISIONS  Specification
Article 440 Article 441
The ownership of property gives the right by To the owner belongs:
accession to everything which is produced thereby, 1) The natural fruits;
or which is incorporated or attached thereto, either 2) The industrial fruits;
naturally or artificially. (353) 3) The civil fruits. (354)
Definition of accession GR: The ownership of property gives the right by
It is the right of an owner of a thing to the products of accession to everything which is produced thereby
said thing as well as to whatever is inseparably attached XPNs: Article 441 is not absolute inasmuch as there
thereto as an accessory are cases where the owner is not entitled to the fruits
of the property
The concept of accession presupposes a previously 1) Usufruct - It is the essence of usufruct that the
existing ownership. usufructuary is entitled not only to the
enjoyment of the property subject matter
It is not, therefore, a mode of acquiring ownership but thereof but also to its fruits.
a right included in ownership.
Article 566. The usufructuary shall be
Article 712. Ownership is acquired by occupation entitled to all the natural, industrial and civil
and by intellectual creation. fruits of the property in usufruct. With
respect to hidden treasure which may be
Ownership and other real rights over property are found on the land or tenement, he shall be
acquired and transmitted by law, by donation, by considered a stranger. (471)
testate and intestate succession, and in consequence
of certain contracts, by tradition.
Usufructuary – entitled to the fruits
Owner – not entitled
They may also be acquired by means of prescription.

Kinds of accession 2) Lease of rural lands

24

Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Lessee – entitled to the natural and industrial
fruits
Lessor (owner) – entitled to the civil fruits in
the form of rent
3) Antichresis
Contract of antichresis - creditor acquires the
right to receive the fruits of an immovable of
his debtor, with the obligation to apply them to
the payment of the interest, if owing, and
thereafter to the principal of his credit.
Creditor - acquires the right to receive the
fruits of an immovable of his debtor with the
obligation to apply them to the payment of
interest
Debtor (owner) – not entitled
4) Possession in good faith
Article 544. A 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. (451)
5) Fruits naturally falling
Article 681. Fruits naturally falling upon
adjacent land belong to the owner of said
land. (n)
Article 442
Natural fruits are the spontaneous products of the
soil, and the young and other products of animals.
Industrial fruits are those produced by lands of any
kind through cultivation or labor.
Civil fruits are 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.
(355a)
Kinds of fruits
1) Natural
 spontaneous products of the soil –
necessary that there must be no human
labor which has intervened in its
generation (industrial)
Trees growing spontaneously on the
soil
GR: They are immovables themselves
and are not accessions.
XPN: If they are being exploited for an
industry – classified as industrial fruits
because of human intervention
Property | VENTEROSO
 young and other products of animals
In the absence of any agreement to
settle the ownership of the offspring,
the rule is that the young belongs to the
owner of the female parent
2) Industrial
Requisites
1) Produced by lands of any kind
2) through cultivation or labor
Natural Industrial
Both products of the soil
Spontaneous With human
intervention
3) Civil
These are fruits which are produced not
because of the fecundity of the principal
thing owned but rather because of the
socio-juridical relationship in which the
thing enters
GR: These are the income and revenues
derived from the property itself
XPN: Bonus paid to an owner of a piece
of land for undertaking the risk of securing
his property with a loan
In just compensation when there is taking
of property
The constitutional limitation of "just
compensation" is considered to be the
sum equivalent to the market value of
the property, broadly described to be the
price fixed by the seller in open market
in the usual and ordinary course of legal
action and competition or the fair value
of the property as between one who
receives, and one who desires to sell, i[f]
fixed at the time of the actual taking by
the government. Thus, if property is
taken for public use before
compensation is deposited with the
court having jurisdiction over the case,
the final compensation must include
interest[s] on its just value to be
computed from the time the property is
taken to the time when compensation is
actually paid or deposited with the court.
In fine, between the taking of the
property and the actual payment, legal
interest[s] accrue in order to place the
owner in a position as good as (but not
better than) the position he was in before
the taking occurred. (Evergreen v.
Republic)
Article 443
He who receives the fruits has the obligation to pay
the expenses made by a third person in their
production, gathering, and preservation. (356)
25
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

embellished the principal thing if it suffers

Situation no injury thereby, and if his successor in the
Article 443 of the New Civil Code contemplates a possession does not prefer to refund the
situation where the recipient of the fruits was not the amount expended. (454)
same person who incurred the expenses in connection
with its production, gathering and preservation. Possessor/Builder
Rights to Good faith Bad faith
expenses
Applicability Necessary REFUNDABLE with REFUNDABLE (Art
1) Article 443 applies only when the fruits are RIGHT TO RETAIN 549)
(Art 546)
already harvested and gathered since the article Useful REFUNDABLE with NONREFUNDABLE
refers to persons “who receives the fruits.” RIGHT TO RETAIN (Art 549)
(Art 546)
2) This may happen only if the property was
previously in the possession of a possessor bad RIGHT TO
REMOVE IF NO
in faith but not if the possessor was in good INJURY and
faith. IF OWNER DOES
NOT PREFER TO
REFUND (Art 547)
Kinds of expenses Ornamental NONREFUNDABLE, NONREFUNDABLE
1) Necessary (Art 548) (Art 549)
Article 546. Necessary expenses shall be RIGHT TO RIGHT TO
refunded to every possessor; but only the REMOVE IF NO REMOVE IF NO
possessor in good faith may retain the thing INJURY and INJURY and
IF OWNER DOES IF OWNER DOES
until he has been reimbursed therefor. NOT PREFER TO NOT PREFER TO
REFUND (Art 548) REFUND (Art 549)
Useful expenses shall be refunded only to
the possessor in good faith with the same Rights and Landowner
right of retention, the person who has obligations to
expenses
defeated him in the possession having the Necessary To refund such expenses to every
option of refunding the amount of the possessor
expenses or of paying the increase in value Useful Option of refunding the amount of
which the thing may have acquired by reason the expenses or of paying the increase
thereof. (453a) in value which the thing may have
acquired by reason thereof or to let
the possessor in good faith remove
Article 549. The possessor in bad faith shall Ornamental Option of refunding the amount of
reimburse the fruits received and those the expenses or to let the possessor
which the legitimate possessor could remove
have received, and shall have a right only to
the expenses mentioned in paragraph 1 of When refundable
article 546 and in article 443. In order for the production expenses to be refundable,
such expenses must have the following characteristics:
2) Useful 1) that they are dedicated to the annual
Article 547. If the useful improvements can production and not merely for purposes of
be removed without damage to the principal improvement;
thing, the possessor in good faith may 2) that they be not superfluous, excessive or for
remove them, unless the person who luxury but rather that they be commensurate
recovers the possession exercises the option with that required by the products.
under paragraph 2 of the preceding article.
(n)
SECTION 1
3) Ornamental
Right of Accession with Respect to What is
Article 549. xxxThe expenses incurred in
Produced by Property
improvements for pure luxury or mere
pleasure shall not be refunded to the
possessor in bad faith, but he may remove Article 444
the objects for which such expenses have Only such as are manifest or born are considered as
been incurred, provided that the thing natural or industrial fruits.
suffers no injury thereby, and that the lawful
possessor does not prefer to retain them by With respect to animals, it is sufficient that they are
paying the value they may have at the time in the womb of the mother, although unborn. (357)
he enters into possession. (445a)
Existence of fruits
Article 548. Expenses for pure luxury or mere For spontaneous or man-made products of the soil -
pleasure shall not be refunded to the Only such as are manifest or born are considered as
possessor in good faith; but he may remove natural or industrial fruits
the ornaments with which he has
26

Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
For animals – they are deemed existing at the beginning
of the maximum period of gestation
For plants which produce only a single crop then
perish – deemed manifest or existing from the time the
seedlings appear on the ground, without waiting for the
grains to appear
SECTION 2
Right of Accession with Respect to Immovable
Property
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, subject to
the provisions of the following articles. (358)
Article 446
All works, sowing, and planting are presumed made
by the owner and at his expense, unless the contrary
is proved. (359)
Accession continua - right of the owner to anything which
is incorporated or attached to his property, whether
such attachment is through natural or artificial causes
Immovable property
1) Industrial accession – artificial incorporation
(building, planting, sowing)
2) Natural accession – incorporation through
natural means
Presumptions
1) Accesion continua involves the union of two
or more things belonging to different owners
in such a manner that they cannot be separated
from each other or from one another without
causing a substantial injury to any of the things
involved.
2) The application of the law on accesion continua
presupposes the absence of any agreement,
whether express or implied, between or
among the owners of the different things
involved.
3) Absence of specific legislation
Example: Condominium Act
Basic principles
1) The union or attachment cannot be separated
from each other or from one another without
causing a substantial physical or juridical injury
to any one, to some, or to all of the things
involved.
2) The owner of the principal thing has the right
to claim ownership of the accessory thing and
not vice versa.
3) That no one shall unjustly enrich himself at the
expense of another.
4) That good faith exonerates a person from
punitive liability and damages.
Property | VENTEROSO
5) That bad faith subjects a person to damages
and other unfavorable consequences.
6) That bad faith of one party neutralizes the bad
faith of the other and, therefore, both should
be considered as having acted in good faith.
7) The Civil Code limits the cases of industrial
accession to those involving land and materials
belonging to different owners for in these cases
a controversy arises as to the rights and
obligations of the parties to each other or to
one another
8) The Court frowns upon forced co-ownership
INDUSTRIAL ACCESSION
1) Building
2) Planting
3) Sowing
Examples of bad faith
Article 453. If there was bad faith, not only on the
part of the person who built, planted or sowed on
the land of another, but also on the part of the owner
of such land, the rights of one and the other shall be
the same as though both had acted in good faith.
It is understood that there is bad faith on the
part of the landowner whenever the act was
done with his knowledge and without
opposition on his part. (364a)
1) Not a purchaser in good faith
 Must inquire into the title
 Must inquire into the capacity of the
seller
2) The possession is by mere tolerance – not the
same with lease
3) Lack of blood relation to the seller (Padilla v.
Malicsi)
4) Under other special laws (Leviste v. Legaspi)
Examples of good faith
To be deemed a builder in good faith, it is essential
that
1) a person asserts title to the land on which he
builds, i.e.,
2) that he be a possessor in the concept of
owner, and
3) that he be unaware that there exists in his
title or mode of acquisition any flaw which
invalidates it. (Spouses Espinoza v.
Spouses Mayandoc)
1) Owners knew and approved the construction –
both in bad faith (Art 453)
2) No knowledge or ignorance of any defect
3) No opposition on the part of the owner – both
in bad faith (Communities v. Nanol)
4) When ownership of the land is lost by reason
of nonpayment of taxes – applied by analogy
Art 448 (Pecson v. CA)
5) Co-ownership with partition (Ignao v IAC)
27
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Neither bad faith nor good faith
1) BPS is a lessee – applicable provision is Art
1678 (Geminiano v. CA)
Article 1678. If the lessee makes, in good faith, useful
improvements which are suitable to the use for
which the lease is intended, without altering the form
or substance of the property leased, the lessor upon
the termination of the lease shall pay the lessee one-
half of the value of the improvements at that time.
Should the lessor refuse to reimburse said amount,
the lessee may remove the improvements, even
though the principal thing may suffer damage
thereby. He shall not, however, cause any more
impairment upon the property leased than is
necessary.
With regard to ornamental expenses, the lessee shall
not be entitled to any reimbursement, but he may
remove the ornamental objects, provided no damage
is caused to the principal thing, and the lessor does
not choose to retain them by paying their value at
the time the lease is extinguished. (n)
1) Mere tenant
2) Agent
3) Usufructuary
Article 579. The usufructuary may make on the
property held in usufruct such useful improvements
or expenses for mere pleasure as he may deem
proper, provided he does not alter its form or
substance; but he shall have no right to be
indemnified therefor. He may, however, remove
such improvements, should it be possible to do so
without damage to the property. (487)
Article 580. The usufructuary may set off the
improvements he may have made on the property
against any damage to the same. (488)
4) Owner is the BPS who later loses ownership of
the land by sale or otherwise
5) Sale with right to repurchase
Controversial cases
Three possible persons involved:
1) Landowner
2) Builder, planter, sower (BPS)
3) Owner of the materials
Three possible controversial situations in industrial
accession:
1) When the landowner builds, plants or sows on
his land but using materials belonging to
another; - Art 447
2) When a person builds, plants or sows on
another’s land but he made use of materials
belonging to him; - Art 448, 449, 450, 451, 452
3) When a person builds, plants or sows on
another’s land but he made use of materials
belonging to another. -Art 455
Property | VENTEROSO
Article 447
The owner of the land who makes thereon,
personally or through another, plantings,
constructions or works with the materials of
another, shall pay their value; and, if he acted in bad
faith, he shall also be obliged to the reparation of
damages. The owner of the materials shall have the
right to remove them only in case he can do so
without injury to the work constructed, or without
the plantings, constructions or works being
destroyed. However, if the landowner acted in bad
faith, the owner of the materials may remove them
in any event, with a right to be indemnified for
damages. (360a)
Persons involved
1) Landowner who is the BPS
2) Material owner
Possible scenarios
1) landowner acted in bad faith; and
2) landowner acted in good faith
Rights of material Land owner (also the BPS)
owner Good faith* Bad faith**
Option to be Pay the value of Pay the value of
reimbursed materials materials
OR OR OR
to remove Remove in case Remove in any
he can do so case
without injury
Damages Liable
*Art 526
**Art 453
Article 448
The owner of the land on which anything has been
built, sown or planted in good faith, shall have the
right to appropriate as his own the works, sowing or
planting, after payment of the indemnity provided
for in articles 546 and 548, or to oblige the one who
built or planted to pay the price of the land, and the
one who sowed, the proper rent. However, the
builder or 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, if the owner of the land does not
choose to appropriate the building or trees after
proper indemnity. The parties shall agree upon the
terms of the lease and in case of disagreement, the
court shall fix the terms thereof. (361a)
Article 449
He who builds, plants or sows in bad faith on the
land of another, loses what is built, planted or sown
without right to indemnity. (362)
Article 450
The owner of the land on which anything has been
built, planted or sown in bad faith may demand the
demolition of the work, or that the planting or
sowing be removed, in order to replace things in
their former condition at the expense of the person
who built, planted or sowed; or he may compel the
28
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

builder or planter to pay the price of the land, and If there was bad faith, not only on the part of the
the sower the proper rent. (363a) person who built, planted or sowed on the land of
another, but also on the part of the owner of such
Article 451 land, the rights of one and the other shall be the
In the cases of the two preceding articles, the same as though both had acted in good faith.
landowner is entitled to damages from the builder,
planter or sower. (n) It is understood that there is bad faith on the part of
the landowner whenever the act was done with his
Article 452 knowledge and without opposition on his part.
The builder, planter or sower in bad faith is entitled (364a)
to reimbursement for the necessary expenses of
preservation of the land. (n) Persons involved
1) Landowner
Persons involved 2) Builder, planter, sower (BPS)
1) Landowner
2) Builder, planter, sower (BPS) Possible scenario:
Both acted in bad faith
Possible scenarios One basic principle of accesion continua is that the bad
1) BPS acted in bad faith; and faith of one person neutralizes the bad faith of another
2) BPS acted in good faith and both should be considered as having acted in good
faith
Rights of Builder, Planter, Sower
landowner Good faith* Bad faith** Provision that will govern
Appropriate With No indemnity Article 448 of the New Civil Code governs this
the accession indemnity (Art 449)
(Art 448) situation such that whatever has been discussed therein
shall likewise apply in this situation
OR OR

Sell Builder & Builder & Meaning of bad faith

planter – pay planter – pay Par 2 - It is understood that there is bad faith on the
price of the price of the part of the landowner whenever the act was done with
land land
his knowledge and without opposition on his part.
XPN: if the Sower – rent
value of the (Art 450) Article 454
land > value When the landowner acted in bad faith and the
of
improvements
builder, planter or sower proceeded in good faith,
(pay the provisions of article 447 shall apply. (n)
reasonable OR
rent) Persons involved
Sower – rent 1) Landowner
(Art 448) 2) Builder, planter, sower (BPS)

Possible scenario:
Demand Done at their Done at their Landowner acted in bad faith
demolition or expense – expense (Art Article 447 of the New Civil Code governs this
removal of ONLY 450) situation such that whatever has been discussed therein
work UPON
FAILURE shall likewise apply in this situation
OF BPS TO
PAY Article 455
Damages Liable (Art If the materials, plants or seeds belong to a third
451)
person who has not acted in bad faith, the owner of
*Art 526
the land shall answer subsidiarily for their value and
**Art 453 only in the event that the one who made use of them
has no property with which to pay.
Remedies if builder or planter fails or refuses to
pay This provision shall not apply if the owner makes
1) Payment of rentals use of the right granted by article 450. If the owner
2) Demand removal of the building and trees of the materials, plants or seeds has been paid by the
(Ignacio v. Hilario) builder, planter or sower, the latter may demand
3) Sale of land and improvement (Bernardo v. from the landowner the value of the materials and
Bataclan) labor. (365a)

Article 453 Persons involved

1) Landowner
29

Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

2) Builder, planter, sower (BPS) (pay reasonable

3) Material owner rent)

Sower – rent
Possible scenario: (Art 448) OR
The BPS who is not the material owner used the
materials, plants or seeds belong to a third person who
has not acted in bad faith Demand Done at their
demolition or expense – Done at their
removal of work ONLY UPON expense (Art
Material owner FAILURE OF 450)
is in good faith BPS TO PAY
Landowner Subsidiarily liable Damages Liable (Art 451)
1) in case of
insolvency of
the builder, Table 3 – (Art 455)
planter or Material owner is in
sower; and good faith
2) the owner of Subsidiarily liable
the land
Landowner
appropriates 1) in case of insolvency of
the building, the builder, planter or
planting or sower; and
sowing. 2) the owner of the land
BPS Primarily liable to appropriates the
material owner building, planting or
sowing.
SUMMARY: BPS Primarily liable to material
owner
Provision Active (who Passive (who Table to use
is in good has the Table 4 – Applicable to all provisions
faith or bad rights) Possessor/Builder
faith)
447 Landowner/ Material owner 1,4
Rights to Good faith Bad faith
BPS expenses
448 BPS Landowner 2, 4 Necessary REFUNDABLE with REFUNDABLE (Art
449 BPS Landowner 2, 4 RIGHT TO RETAIN 549)
450 BPS Landowner 2, 4 (Art 546)
451 BPS Landowner 2, 4 Useful REFUNDABLE with NONREFUNDABLE
RIGHT TO RETAIN (Art 549)
453 (bad faith + Landowner 2, 4
(Art 546)
bad faith) = and BPS
good faith
RIGHT TO
454 Landowner BPS 1,4
REMOVE IF NO
455 Material owner Material owner 3 INJURY and
IF OWNER DOES
Table 1 - (Art 447, 454) NOT PREFER TO
REFUND (Art 547)
Rights of material Land owner (also the BPS) Ornamental NONREFUNDABLE, NONREFUNDABLE
owner Good faith* Bad faith** (Art 548) (Art 549)
Option to be Pay the value of Pay the value of
reimbursed materials materials RIGHT TO RIGHT TO
REMOVE IF NO REMOVE IF NO
OR OR OR INJURY and INJURY and
IF OWNER DOES IF OWNER DOES
NOT PREFER TO NOT PREFER TO
to remove Remove in case Remove in any
REFUND (Art 548) REFUND (Art 549)
he can do so case
without injury
Damages Liable NATURAL ACCESSION
1) alluvion
Table 2 – (Art 448, 449, 450, 451, 453) 2) avulsion
Rights of land Builder, Planter, Sower 3) natural change of course of river
owner Good faith* Bad faith** 4) formation of island
Appropriate the With indemnity No indemnity
accession (Art 448) (Art 449)
Article 457
To the owners of lands adjoining the banks of rivers
OR OR belong the accretion which they gradually receive
Sell Builder & Builder &
from the effects of the current of the waters. (336)
planter – pay planter – pay
price of the land price of the land Article 458
The owners of estates adjoining ponds or lagoons do
XPN: if the Sower – rent
value of the land
not acquire the land left dry by the natural decrease
(Art 450)
> value of of the waters, or lose that inundated by them in
improvements extraordinary floods. (367)
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Principal: The riparian land, or the land adjoining the
bank of the river
Accessory: alluvial deposits accumulated gradually
along such riparian land
Rationale: to compensate him for the danger of loss
that he suffers because of the location of his land
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. (368a)

Requisites Article 460

1. That the deposit be gradual and
imperceptible; (G, I)
2. That it be made through the effects of the
current of the water; and (E) - indispensable
3. That the land where accretion takes place is
adjacent to the banks of rivers. (A)
Trees uprooted and carried away by the current of
the waters belong to the owner of the land upon
which they may be cast, if the owners do not claim
them within six months. If such owners claim them,
they shall pay the expenses incurred in gathering
them or putting them in a safe place. (369a)

Alluvion Alluvium Accretion Avulsion

gradual and soil deposited process Accretion which takes place when the current of a
imperceptible on the estate whereby the river, creek or torrent segregates a known portion of
addition to the fronting the soil is land from an estate on its banks and transfers it to
banks of rivers river bank deposited another estate.
or as the
increment Avulsion Alluvion
which lands take place only along the banks of rivers, creeks,
abutting rivers streams and lakes
gradually caused only by the force of the current of the waters
receive as a independently of the act of man
result of the sudden and abrupt deposit of soil is gradual
current of the owner of the property deposit of soil belongs to
waters from which a part was the owner of the
detached retains the property where the same
Riparian Littoral ownership thereof; was deposited
River Sea right of accession takes accession takes place
May be private property Lands added to the place only after two immediately upon the
if the alluvium formed shores by accretions and years from the deposit of the soil
due to the effects of the alluvial deposits caused attachment or
current of the river by the action of the sea, incorporation of the
form part of the public segregated portion of
domain land to the riparian land
and only if its owner fails
Spanish Law of 1866 to remove the same
ART 84. Accretions deposited gradually upon lands within said period
contiguous to creeks, streams, rivers, and lakes, by detached portion can be soil cannot be identified
accessions or sediments from the waters thereof, identified
belong to the owners of such lands.
GR: gradual and caused by accretion and erosion
XPN: XPN: avulsion
1) The rule does not apply to canals or esteros
which are not creeks and have not current but Avulsion Portion of Uprooted
are simply drainage system land trees
2) Art 458 - The owners of estates adjoining Owner Owner of the Owner before
ponds or lagoons do not acquire the land land to which they were
left dry by the natural decrease of the waters, the segregated uprooted
or lose that inundated by them in extraordinary portion
belonged
floods.
Proviso provided that owners must
he removes claim them
Ownership the same within six
GR: The alluvion or alluvium is ipso jure owned by the within two months
adjoining land or estate years
XPN: It is not automatically converted to registered
land Article 461
River beds which are abandoned through the natural
Article 459 change in the course of the waters ipso facto belong to
the owners whose lands are occupied by the new
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course in proportion to the area lost. However, the
owners of the lands adjoining the old bed shall have
the right to acquire the same by paying the value
thereof, which value shall not exceed the value of the
area occupied by the new bed. (370a)
Article 462
Whenever a river, changing its course by natural
causes, opens a new bed through a private estate, this
bed shall become of public dominion. (372a)
Rule as to ownership of riverbeds
GR: Rivers and natural beds are public dominion
XPN: River beds which are abandoned through the
natural change in the course of the waters ipso facto
belong to the owners whose lands are occupied by the
new course in proportion to the area lost. (Art 461)
Old bed New bed
Have the right to acquire Ipso facto owner of river
the same by paying the beds which are
value thereof, which abandoned through the
value shall not exceed the natural change in the
value of the area course of the waters
occupied by the new bed. (compensation)
(accession)
Requisites
1. The change must be sudden in order that the
old river may be identified;
2. The changing course must be more or less
permanent, and not temporary flooding of
another’s land;
3. The change of the river must be a natural one
(i.e. caused by natural forces, not by artificial
means)
4. There must be definite abandonment by the
government.
5. The river must continue to exist, that is, it must
not completely dry up or disappear
PD 1607 – The Water Code of the Philippines
ARTICLE 58. When a river or stream suddenly
changes its course to traverse private lands, the
owners of the affected lands may not compel the
government to restore the river to its former bed;
nor can they restrain the government from
taking steps to revert the river or stream to its
former course. The owners of the lands thus
affected are not entitled to compensation for any
damage sustained thereby. However, the former
owners of the new bed shall be the owners of the
abandoned bed in proportion to the area lost by
each.
The owners of the affected lands may undertake to
return the river or stream to its old bed at their own
expense; Provided, That a permit therefor is secured
from the Secretary of Public Works, Transportation
and Communication and work pertaining thereto are
commenced within two years from the change in the
course of the river or stream.
When river dries up
Property | VENTEROSO
 PUBLIC DOMINION, even if natural or with
human intervention
Article 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. (374)
Article 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.
(371a)
Article 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. (373a)
Formation of islands
1) the current of a river simply divides itself into
branches – Art 463
o applies whether navigable or floatable
or not
o no accession has taken place in the
situation contemplated in Article 463
because no new property has been
added or attached to the property of
any person
2) an island is formed on a sea, lake or navigable
or floatable river through whatever cause – Art
464
o A river is considered to be navigable or
floatable if it is able to carry the
produce of the land along its banks to
the market.
o expressly declared to be property of
the State
3) an island formed in non-navigable or non-
floatable rivers through successive
accumulation of deposit in the same manner as
alluvion.
RULES:
 It shall belong to the owner of the
margins or banks nearest to the
island;
 If the island is in the middle of the river
- the same shall be owned by the
owners of both margins, in which
case it shall be divided longitudinally
in halves; or
 If the island be more distant from one
margin than from the other, the
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owner of the nearer margin shall be be more

distant from
the sole owner thereof one margin
than from the
other, the
Under Art. 465 of the Civil Code, the island belongs owner of the
to the owner of the land along the nearer margin as nearer margin
sole owner thereof. His ownership, however, may shall be the
sole owner
yield to the adverse possession of third parties. But thereof
in this case, the third parties were presumed to have
notice of the status of the owner of the land along
the nearer margin as riparian owners, hence, they did
SECTION 3
not qualify as possessors in good faith. (Jagualing
Right of Accession with Respect to Movable
v. CA)
Property
SUMMARY
# Process Ipso facto Right of Condition Article 466
owner accession Whenever two movable things belonging to
457 Accretion owners of owners of registration different owners are, without bad faith, united in
lands adjoining lands of the such a way that they form a single Fobject, the owner
the banks of adjoining accretion
rivers the banks of the principal thing acquires the accessory,
of rivers indemnifying the former owner thereof for its value.
459 Avulsion owner of the the other must (375)
land to which estate remove
the segregated where the within 2
portion land is years Article 467
belonged transferred The principal thing, as between two things
460 Uprooted owners of the owner of must claim
trees trees the land within 6 incorporated, is deemed to be that to which the
upon months, pay other has been united as an ornament, or for its use
which they the or perfection. (376)
may be cast expenses
incurred in
gathering Article 468
them or If it cannot be determined by the rule given in the
putting
them in a preceding article which of the two things
safe place incorporated is the principal one, the thing of the
461 Change in lands are owners of paying the greater value shall be so considered, and as between
course of occupied by the lands value
river the new course adjoining thereof, two things of equal value, that of the greater volume.
in proportion the old bed which value
to the area lost shall not In painting and sculpture, writings, printed matter,
exceed the
value of the engraving and lithographs, the board, metal, stone,
area canvas, paper or parchment shall be deemed the
occupied by accessory thing. (377)
the new bed
463 Formation owner of the
of island by land retains his Article 469
the current ownership Whenever the things united can be separated
of the river
dividing the without injury, their respective owners may demand
land their separation.
464 Formation State
of lands on
lakes, and on
Nevertheless, in case the thing united for the use,
navigable or embellishment or perfection of the other, is much
floatable more precious than the principal thing, the owner of
rivers
465 Formation owners of the
the former may demand its separation, even though
of islands margins or the thing to which it has been incorporated may
through banks nearest suffer some injury. (378)
successive to each of
accumulation them
in non- Article 470
navigable OR Whenever the owner of the accessory thing has
and non-
floatable owners of
made the incorporation in bad faith, he shall lose the
rivers both margins thing incorporated and shall have the obligation to
if the island is indemnify the owner of the principal thing for the
in the middle
of the river, in
damages he may have suffered.
which case it
shall be If the one who has acted in bad faith is the owner of
divided
longitudinally
the principal thing, the owner of the accessory thing
in halves shall have a right to choose between the former
paying him its value or that the thing belonging to
OR
him be separated, even though for this purpose it be
single island necessary to destroy the principal thing; and in both
thus formed
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cases, furthermore, there shall be indemnity for XPN: Nevertheless, in case the thing united for the
damages. use, embellishment or perfection of the other, is much
more precious than the principal thing, the owner
If either one of the owners has made the of the former may demand its separation, even though
incorporation with the knowledge and without the the thing to which it has been incorporated may suffer
objection of the other, their respective rights shall be some injury. (Art 469)
determined as though both acted in good faith.
(379a)
Non-separable
Article 471 Whenever two movable things belonging to different
Whenever the owner of the material employed owners are, without bad faith, united in such a way that
without his consent has a right to an indemnity, he they form a single object, the owner of the principal
may demand that this consist in the delivery of a thing acquires the accessory, indemnifying the former
thing equal in kind and value, and in all other owner thereof for its value. (Art 466)
respects, to that employed, or else in the price
thereof, according to expert appraisal. (380) BAD FAITH
Owner of the principal Owner of the
Three forms of accession continua in movable (Art 470) accessory (Art 470)
properties demand payment for the lose the thing
1) adjunction or conjunction - two or more value of the accessory, incorporated
movable things belonging to different owners with a right to be
are so united that they cannot be separated indemnified for
without causing injury to one or both them, damages
thereby giving rise to a new thing. (Art 466,
467, 468, 469, 470, 471) 1) delivery of a
thing equal in
2) commixtion or confusion - mixture of two or
kind and value,
more things belonging to different owners. If and in all other
the things mixed are solid, it is called respects, or else
commixtion; if the things are liquid, it is called 2) in the price
confusion. (Art 472, 473) thereof,
3) specification - work of a person is done on according to
the material of another, such material, in expert appraisal.
consequence of the work itself, undergoing a
transformation. (Art 474, 475)
demand for the
Definitions separation of the
If determinable accessory, even though
Principal - deemed to be that to which the other has for this purpose it be
necessary to destroy the
been united as an ornament, or for its use or perfection.
principal thing, with a
(Art 467) right to be indemnified
Accessory – that which has been united to the for damages
principal as its ornament, for its use of for perfection Damages Damages

If not determinable BOTH IN BAD FAITH

Principal
GR:
1) the thing of the greater value shall be so
considered
2) the thing of greater volume if equal in value
(Art 468)
XPN: In painting and sculpture, writings, printed
matter, engraving and lithographs, the board, metal,
stone, canvas, paper or parchment shall be deemed the
accessory thing (Art 468)
Principle of accession in movable properties
GOOD FAITH
Separable
GR: Whenever the things united can be separated
without injury, their respective owners may demand
their separation.
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. (Art 466)
Article 472
If by the will of their owners two things of the same
or different kinds are mixed, or if the mixture occurs
by chance, and in the latter case the things are not
separable without injury, each owner shall acquire a
right proportional to the part belonging to him,
bearing in mind the value of the things mixed or
confused. (381)
Article 473
If by the will of only one owner, but in good faith,
two things of the same or different kinds are mixed
or confused, the rights of the owners shall be
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determined by the provisions of the preceding
article.
If the one who caused the mixture or confusion
acted in bad faith, he shall lose the thing belonging
to him thus mixed or confused, besides being
obliged to pay indemnity for the damages caused to
the owner of the other thing with which his own was
mixed. (382)
Legal Effects of Commixtion or Confusion
1) by will of both or all owners of the things
mixed;
 A STATE OF CO-OWNERSHIP SHALL
ARISE
 EACH OWNER SHALL ACQUIRE A
RIGHT IN PROPORTION TO THE
PART BELONGING TO HIM,
BEARING IN MIND THE VALUE OF
THE THINGS MIXED
2) by will of only one owner acting in good faith;
or
 HE LOSES THE THING
 PAY DAMAGES
3) by chance or fortuitous event
Article 474
One who in good faith employs the material of
another in whole or in part in order to make a thing
of a different kind, shall appropriate the thing thus
transformed as his own, indemnifying the owner of
the material for its value.
If the material is more precious than the transformed
thing or is of more value, its owner may, at his
option, appropriate the new thing to himself, after
first paying indemnity for the value of the work, or
demand indemnity for the material.
If in the making of the thing bad faith intervened,
the owner of the material shall have the right to
appropriate the work to himself without paying
anything to the maker, or to demand of the latter
that he indemnify him for the value of the material
and the damages he may have suffered. However,
the owner of the material cannot appropriate the
work in case the value of the latter, for artistic or
scientific reasons, is considerably more than that of
the material. (383a)
Article 475
In the preceding articles, sentimental value shall be
duly appreciated. (n)
Legal effects of specification
GOOD FAITH
GR: appropriate the thing thus transformed as his
own, indemnifying the owner of the material for its
value.
XPN: Material is more precious than the transformed
thing or more valuable, in which case, its owner may,
at his option:
Property | VENTEROSO
1) appropriate the new thing to himself after
paying indemnity for the value of the work; or
2) demand indemnity for the material.
BAD FAITH
GR:
1) to appropriate the work for himself without
paying anything to the maker; or
2) to demand of the latter (worker) that he
indemnify him for the value of the material and
the damages he may have suffered.
XPN: value of the work, for artistic or scientific
reasons, is considerably more than that of the material,
the owner of the material cannot appropriate the work.
In such a case, the owner of the material can only
demand from the worker the value of his materials and
the damages he may have suffered
CHAPTER 3
Quieting of Title
Article 476
Whenever there is a cloud on title to real property or
any interest therein, by reason of any instrument,
record, claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in fact
invalid, ineffective, voidable, or unenforceable, and
may be prejudicial to said title, an action may be
brought to remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud
from being cast upon title to real property or any
interest therein.
Article 477
The plaintiff must have legal or equitable title to, or
interest in the real property which is the subject
matter of the action. He need not be in possession
of said property.
Article 478
There may also be an action to quiet title or remove
a cloud therefrom when the contract, instrument or
other obligation has been extinguished or has
terminated, or has been barred by extinctive
prescription.
Article 479
The plaintiff must return to the defendant all
benefits he may have received from the latter, or
reimburse him for expenses that may have
redounded to the plaintiff's benefit.
Article 480
The principles of the general law on the quieting of
title are hereby adopted insofar as they are not in
conflict with this Code.
Article 481
The procedure for the quieting of title or the
removal of a cloud therefrom shall be governed by
such rules of court as the Supreme Court shall
promulgated.
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Quieting of title - is a common law remedy for the
removal of any cloud upon or doubt or uncertainty
with respect to title to real property.
Requisites
1) there is a cloud on title to real property or any
interest therein, by reason of any instrument,
record, claim, encumbrance or proceeding
(PRICE)
2) The cloud is apparently valid or effective but is
in truth and in fact invalid, ineffective,
voidable, or unenforceable
3) It is prejudicial to the title
The action of quieting of title will not prosper as the
heirs of Dalmacio. The first element which is a legal
or equitable title to the real property was absent.
From 1954 when the sale certificate was issued until
1985 when the complaint was filed, Paciencia and
her successors-in-interest did not do anything to
enforce their proprietary rights over the disputed
property or to consolidate their ownership over the
same. In fact, they did not even register the said
Agreement with the Registry of Property or pay the
requisite land taxes. While the heirs of Dalmacio had
been doing nothing, the disputed property, as part
of Lot No. 5679, had been the subject of several
sales transactions and covered by several transfer
certificates of title. The Deed of Confirmation of
Sale, such deed was however not presented in court
for allegedly being lost. (Secuya v. Vda de Selma)
CHAPTER 4
Ruinous Buildings and Trees in Danger of
Falling
Article 482
If a building, wall, column, or any other construction
is in danger of falling, the owner shall be obliged to
demolish it or to execute the necessary work in order
to prevent it from falling.
If the proprietor does not comply with this
obligation, the administrative authorities may order
the demolition of the structure at the expense of the
owner, or take measures to insure public safety.
(389a)
Article 483
Whenever a large tree threatens to fall in such a way
as to cause damage to the land or tenement of
another or to travelers over a public or private road,
the owner of the tree shall be obliged to fell and
remove it; and should he not do so, it shall be done
at his expense by order of the administrative
authorities. (390a)
TITLE III
CO-OWNERSHIP
Article 484
Property | VENTEROSO
There is co-ownership whenever the ownership of
an undivided thing or right belongs to different
persons.
In default of contracts, or of special provisions, co-
ownership shall be governed by the provisions of
this Title. (392)
Co-ownership defined
Sanchez Roman - the right of common dominion
which two or more persons have in a spiritual part of a
thing, not materially or physically divided.
Manresa - the manifestation of the private right of
ownership, which instead of being exercised by the
owner in an exclusive manner over the thing subject to
it, it is exercised by two or more owners and the
undivided thing or right to which it refers is one and
the same.
Requisites
1) Plurality of subjects – co-owners
2) Unity of the object - there is a single object
which is not materially divided, and which is
the element which binds the subjects
3) Recognition of ideal share
Dual nature of ownership in co-ownership
1) Ownership over the ideal share
2) Joint ownership over the whole
Effect of division or partition
Once partition is effected or once the property is
subdivided and distributed among the co-owners, the
co-ownership is terminated.
There is partial partition where:
1) The transferees of an undivided portion of the
land allowed a co-owner of the property to
occupy a definite portion thereof and has not
disturbed the same
Co-ownership Partnership
may exist without the requires the existence of
necessity of a contract a contract in order to
arise
A co-ownership does A partnership has a
not possess a juridical juridical personality
personality distinct separate and distinct
from the co-owners from that of each of the
partners.
only for the purpose of There must be an
common enjoyment of agreement to divide the
the thing owned in profits among the
common partners.
In co-ownership, an there is no limit as to the
agreement not to divide time of its existence
the property for more
than ten (10) years is not
valid with respect to
the excess
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Death of a co-owner the death of a partner
does not dissolve the brings about the
co-ownership dissolution of the
partnership
a co-owner may freely a partner has no power
dispose of his share of disposal so as to make
the buyer a partner
unless agreed upon by all
the other partners
a co-owner does not a partner usually
represent the co- represents the
ownership partnership and may
bind the partnership
Sources of co-ownership
1) By law
 Co-ownership will arise if by the will of
their owners two things of the same
kind or different kinds are mixed.
 Co-ownership will likewise arise if by
the will of only one owner, but in
good faith, two things of the same
or different kinds are mixed or
confused.
 When a man and woman who are
capacitated to marry each other, live
exclusively with each other as husband
and wife without the benefit of
marriage or under a void marriage, the
property acquired by both of them
through their work or industry shall be
governed by the rules on co-
ownership. In cases of cohabitation not
falling under Article 147 of the Family
Code, only the properties acquired by
both of the parties though their
actual joint contribution of money,
property, or industry shall be owned
by them in common in proportion to
their respective contributions.
2) By contract - An agreement to keep the thing
undivided for a certain period, not exceeding
ten years, shall be valid. This term may be
extended by a new agreement.
3) By succession - Where there are two or more
heirs, the whole estate of the decedent is,
before its partition, owned in common by such
heirs, subject to the payment of debts of the
deceased. The testator may likewise prohibit
the partition of the estate among the heirs for
a period not to exceed twenty (20) years.
4) By fortuitous event or by chance - Co-
ownership will arise if two things of the same
kind or different kinds are mixed by chance and
the things are not separable without injury.
5) By occupancy - As when two or more persons
catch a wild pig or get forest products or when
a hidden treasure is accidentally discovered by
a stranger, who is not a trespasser, on the land
of another.
Rules governing co-ownership
Property | VENTEROSO
1) If source of co-ownership is a contract
 The contract between the parties
 In default thereof, by the provisions of
Articles 484 to 501 of the New Civil
Code
2) If source of co-ownership is a special provision
of law
 Special law
 Articles 484 to 501 shall be applied only
in a suppletory character
Article 485
The share of the co-owners, in the benefits as well
as in the charges, shall be proportional to their
respective interests. Any stipulation in a contract to
the contrary shall be void.
The portions belonging to the co-owners in the co-
ownership shall be presumed equal, unless the
contrary is proved. (393a)
Determination of the ideal share
1) based on the agreement in the contract
2) proportional to their respective interests
3) shall be presumed equal unless the contrary is
proved
Any stipulation in a contract to the contrary shall be
void.
Related laws
Article 472. If by the will of their owners two things
of the same or different kinds are mixed, or if the
mixture occurs by chance, and in the latter case the
things are not separable without injury, each owner
shall acquire a right proportional to the part
belonging to him, bearing in mind the value of the
things mixed or confused. (381)
Article 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. (351a)
Sulpicia Jimenez is entitled to the relief prayed for,
declaring her to be the sole and absolute owner of
the land in question with right to its possession and
enjoyment. Since her uncle Carlos Jimenez died in
1936, his pro-indiviso share in the properties then
owned in co-ownership with his niece Sulpicia
descended by intestacy to Sulpicia Jimenez alone
because Carlos died without any issue or other heirs.
(Jimenez v. Fernandez)
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Article 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. (394a)
Use of the thing owned in common
A co-owner may use the entire thing so long as
 the use is in accordance with the purpose for
which it is intended; and
 in a manner not injurious to the interest of the
other co-owners
 in a manner that prevents the other co-owners
from using it according to their rights
The sisters Matilde and Vicenta Ortiz (plaintiff) were
co-owners of a two-storey house designed as a
dwelling. Matilde (defendant) and her husband
occupied the upper floor as their dwelling. The
husband also occupied the upper floor on the
ground floor as an office while the other rooms were
rented as stores.
With regard to that part occupied by Matilde as
dwelling, no rental can be collected inasmuch as she,
being the co-owner, is entitled to use the same. With
respect, however, to that portion occupied by the
husband, Bartolome, the latter must pay one-half of
the rentals which said quarters could and should
have produced had they have been rented to
strangers, inasmuch as he is not a co-owner of the
property (Pardell v. Bartolome)
Giving consent to a third person to construct a
house on the co-owned property will injure the
interest of the co-ownership and prevent other co-
owners from using the property in accordance with
their rights (Cruz v. Catapang)
Being a co-owner respondent has the right to use the
house and lot without paying any compensation to
petitioner, as he may use the property owned in
common so long as it is in accordance with the
purpose for which it is intended and in a manner not
injurious to the interest of the other co-owners.
Each co-owner of property held pro indiviso
exercises his rights over the whole property and may
use and enjoy the same with no other limitation than
that he shall not injure the interests of his co-owners,
the reason being that until a division is made, the
respective share of each cannot be determined and
every co-owner exercises, together with his co-
participants joint ownership over the pro indiviso
property, in addition to his use and enjoyment of the
same. Since petitioner has decided to enforce his
right in court to end the co-ownership of the house
and lot and respondent has not refuted the allegation
that he has been preventing the sale of the property
by his continued occupancy of the premises, justice
and equity demand that respondent and his family
vacate the property so that the sale can be effected
Property | VENTEROSO
immediately. In fairness to petitioner, respondent
should pay a rental of P1,200.00 per month, with
legal interest; from the time the trial court ordered
him to vacate, for the use and enjoyment of the other
half of the property appertaining to petitioner.
(Aguilar v. CA)
If there is an agreement to lease the house, the co-
owners can demand rent from the co-owner who
dwells in the house. The co-owners can either
exercise an equal right to live in the house, or agree
to lease it. If they fail to exercise any of these
options, they must bear the consequences. It would
be unjust to require the co-owner to pay rent after
the co-owners by their silence have allowed him to
use the property.
In case the co-owners agree to lease a building
owned in common, a co-owner cannot retain it for
his use without paying the proper rent. Moreover,
where part of the property is occupied exclusively by
some co-owners for the exploitation of an industry,
the other co-owners become co-participants in the
accessions of the property and should share in its net
profits.
The Lejano Heirs and Teofilo Abejo agreed to lease
the entire FISHPOND to DE GUIA. After DE
GUIA’s lease expired in 1979, he could no longer
use the entire FISHPOND without paying rent. To
allow DE GUIA to continue using the entire
FISHPOND without paying rent would prejudice
ABEJO’s right to receive rent, which would have
accrued to his 1/2 share in the FISHPOND had it
been leased to others. Since ABEJO acquired his 1/2
undivided share in the FISHPOND on 22
November 1983, DE GUIA should pay ABEJO
reasonable rent for his possession and use of
ABEJO’s portion beginning from that date. The
compensatory damages of P25,000 per year awarded
to ABEJO is the fair rental value or the reasonable
compensation for the use and occupation of the
leased property, considering the circumstances at
that time. DE GUIA shall continue to pay ABEJO
a yearly rent of P25,000 corresponding to ABEJO’s
1/2 undivided share in the FISHPOND. However,
ABEJO has the option either to exercise an equal
right to occupy the FISHPOND, or to file a new
petition before the trial court to fix a new rental rate
in view of changed circumstances in the last 20 years.
ABEJO made an extrajudicial demand on DE
GUIA by sending the 27 November 1983 demand
letter. Thus, the rent in arrears should earn interest
at 6% per annum from 27 November 1983 until
finality of this decision pursuant to Article 2209
of the Civil Code. Thereafter, the interest rate is
12% per annum from finality of this decision until
full payment.” (De Guia v. CA)
Determining the purpose
1) agreement of the parties
2) in default, that use for which it is ordinarily
adapted according to its nature
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Article 487
Any one of the co-owners may bring an action in
ejectment. (n)
Action in ejectment
GR: In suits to recover properties, all co-owners are
real parties in interest. However, pursuant to Article
487 of the New Civil Code, any one of the co-owners
of an immovable may bring an action in ejectment. A
co-owner may thus bring an ejectment action without
joining the other co-owners, the suit being deemed
instituted for the benefit of all. Only the co-owner who
instituted the suit for recovery is the indispensable
party thereto.
XPN: If the action is for the benefit of the plaintiff
alone who claims to be the sole owner and entitled to
the possession thereof, the action will not prosper
unless he impleads the other co-owners who are
indispensable parties.
Scope of the term “ejectment”
The term not only includes a suit of forcible entry or
unlawful detainer but all kinds of actions for the
recovery of possession, including accion publiciana and
reivindicatory action.
The rule can also be applied to an action for recovery
of possession of personal property
Under Article 487 of the New Civil Code, any of the
co-owners may bring an action in ejectment. This
article covers all kinds of actions for the recovery of
possession, including an accion publiciana and a
reinvidicatory action. A co-owner may bring such an
action without the necessity of joining all the other
co-owners as co-plaintiffs because the suit is deemed
to be instituted for the benefit of all. Any judgment
of the court in favor of the co-owner will benefit the
others but if such judgment is adverse, the same
cannot prejudice the rights of the unimpleaded co-
owners. If the action is for the benefit of the
plaintiff alone who claims to be the sole owner
and entitled to the possession thereof, the action
will not prosper unless he impleads the other co-
owners who are indispensable parties.
In this case, the respondent alone filed the
complaint, claiming sole ownership over the subject
property and praying that he be declared the sole
owner thereof. There is no proof that the other co-
owners had waived their rights over the subject
property or conveyed the same to the respondent or
such co-owners were aware of the case in the trial
court. The trial court rendered judgment declaring
the respondent as the sole owner of the property and
entitled to its possession, to the prejudice of the
latter’s siblings. Patently then, the decision of the
trial court is erroneous. (Baloloy v. Hular)
Action available even against a co-owner
Any co-owner may file an action under Article 487 not
only
Property | VENTEROSO
1) against a third person,
2) but also against another co-owner who takes
exclusive possession and asserts exclusive
ownership of the property
 the only purpose of the action is to
obtain recognition of the co-
ownership. The plaintiff cannot seek
exclusion of the defendant from the
property because as co-owner he has a
right of possession. (De Guia v. Court
of Appeals)
The sales having been made without the consent of
all the owners, the same have no effect, except as to
the portion pertaining to those who made them. The
fact that Ahamad is one of the co-owners is no bar
to the bringing of this action. The action for
recovery which each co-owner has, is derived from
the right of ownership inherent in the coownership
and may be exercised not only against strangers but
against the co-owners themselves, when the latter
perform, with respect to the thing held in common,
acts for their exclusive benefit, or of exclusive
ownership, or which are prejudicial to, and in
violation of, the right of the community.
In this case, the selling of the amber by the Ahamad
as his exclusive property and his attitude in
representing himself to be the sole owner thereof
place him in the same position as the stranger
who violates any right of the community. He is
not sued in this case as a co-owner, for the cause of
action is predicated upon the fact that he has acted
not as a co-owner, but as an exclusive owner of the
amber sold by him. (Punzalan v. Boot Liat)
Any co-owner may file an action under Article 487
not only against a third person, but also against
another co-owner who takes exclusive possession
and asserts exclusive ownership of the property. In
the latter case, however, the only purpose of the
action is to obtain recognition of the co-ownership.
The plaintiff cannot seek exclusion of the defendant
from the property because as co-owner he has a right
of possession. The plaintiff cannot recover any
material or determinate part of the property.
To recapitulate, we rule that a co-owner may file an
action for recovery of possession against a co-owner
who takes exclusive possession of the entire co-
owned property. However, the only effect of such
action is a recognition of the co-ownership. The
courts cannot proceed with the actual partitioning of
the co-owned property. Thus, judicial or extra-
judicial partition is necessary to effect physical
division of the FISHPOND between ABEJO and
DE GUIA. (De Guia v. Court of Appeals)
Article 488
Each co-owner shall have a right to compel the other
co-owners to contribute to the expenses of
preservation of the thing or right owned in common
and to the taxes. Any one of the latter may exempt
himself from this obligation by renouncing so much
of his undivided interest as may be equivalent to his
39
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
share of the expenses and taxes. No such waiver
shall be made if it is prejudicial to the co-ownership.
(395a)
Article 489
Repairs for preservation may be made at the will of
one of the co-owners, but he must, if practicable,
first notify his co-owners of the necessity for such
repairs. Expenses to improve or embellish the thing
shall be decided upon by a majority as determined in
article 492. (n)
Expenses for reservation
1) necessary expenses - may be made at the will
of one of the co-owners, but he must, if
practicable, first notify his co-owners of the
necessity for such repairs*
 The only effect of the failure to comply
with the notice requirement is to place
upon the co-owner who incurred
the expenses the burden of proving
the necessity of the repairs and the
reasonableness of the expenses.
2) useful and ornamental expenses - shall be
decided upon by a majority as determined in
article 492
Right to demand contribution
Each co-owner shall have a right to compel the other
co-owners to contribute to the expenses of
preservation of the thing or right owned in common
and to the taxes. (Art 488)
Option to renounce
While the other co-owners can be compelled to
contribute proportionately to the expenses incurred for
the purpose of preserving the thing or right owned in
common, they are given by law an option of
“renouncing so much of (their) undivided interest
as may be equivalent to (their) share of the
expenses and taxes,” in lieu of paying their
proportionate contribution to such expenses.
GR: Option to renounce the equivalent share of the
expenses and taxes is given to the co-owner who
cannot contribute
XPN: Co-owner refuses to pay his share in the
expenses
 The action should be ordinary action
for collection of sum of money
 The co-owner who advances need not
consent (dissented by Judge JBL Reyes
and Senator Tolentino)
XPN of XPN: No such waiver or renunciation shall
be made if it is prejudicial to the co-ownership
The failure of the other heirs to reimburse the
amounts advanced by the respondents in payment
of the loan did not entitle the latter to claim full
ownership of the co-owned property. It only gave
them the right to claim reimbursement for the
amounts they advanced in behalf of the co-
Property | VENTEROSO
ownership. The respondents' advance payments are
in the nature of necessary expenses for the
preservation of the co-ownership. Article 488 of the
Civil Code provides that necessary expenses may be
incurred by one co-owner, subject to his right to
collect reimbursement from the remaining co-
owners. Until reimbursed, the respondents hold a
lien upon the subject property for the amount they
advanced. (Taghoy v. Tigol)
Article 490
Whenever the different stories of a house belong to
different owners, if the titles of ownership do not
specify the terms under which they should
contribute to the necessary expenses and there exists
no agreement on the subject, the following rules
shall be observed:
(1) The main and party walls, the roof and the other
things used in common, shall be preserved at the
expense of all the owners in proportion to the value
of the story belonging to each;
(2) Each owner shall bear the cost of maintaining the
floor of his story; the floor of the entrance, front
door, common yard and sanitary works common to
all, shall be maintained at the expense of all the
owners pro rata;
(3) The stairs from the entrance to the first story
shall be maintained at the expense of all the owners
pro rata, with the exception of the owner of the
ground floor; the stairs from the first to the second
story shall be preserved at the expense of all, except
the owner of the ground floor and the owner of the
first story; and so on successively. (396)
Applicability of Article 490
1) Applicable to a house which consists of several
stories and the different stories belong to
different owners.
2) The titles of ownership do not specify the
terms under which they should contribute to
the necessary expenses
3) there exists no agreement on how they should
contribute to the necessary expenses
4) This article finds no application to a
condominium project, the latter being
governed by Republic Act No. 4276, otherwise
known as “The Condominium Act.”
Rules governing necessary expenses
1) if the manner of contribution is specified in
the title of ownership, the same shall govern
2) in the absence of such provision in the title of
ownership, the agreement of the parties shall
control
3) in the absence of such agreement, Article 490
Condominium
An interest in real property consisting of a separate
interest in a unit in a residential, industrial or
commercial building and an undivided interest in
common directly or indirectly, in the land on which it
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
is located and in other common areas of the building
(RA 4726)
Nature of ownership
1) Unit - With respect to the condominium unit,
the same is owned separately and individually
by the unit owner.
2) Land and common areas - With respect,
however, to the land and to the common areas
in the condominium project, there are two
situations contemplated in Sections 2 and 5 of
the Condominium Act.
 the land and other common areas in
the condominium project are held by
the owners of separate units as co-
owners thereof (co-ownership)
 the land and other common areas are
to be held by the condominium
corporation, in which case, the owners
of the individual units are automatically
considered members or shareholders
of the corporation.
Rules governing common areas
The owner of the project is required by law, prior to
the conveyance of any condominium therein, to
register a declaration of restrictions relating to such
project, which restrictions shall constitute a lien upon
each condominium in the project, and shall inure to
and bind all condominium owners in the projects.
Assessment as lien upon the unit
An assessment upon any condominium made in
accordance with a duly registered declaration of
restrictions shall be an obligation of the owner thereof
at the time the assessment is made. The amount of any
such assessment plus any other charges thereon, such
as interests, cost (including attorney’s fees) and
penalties, as such as may be provided for in the
declaration of restrictions, shall be and become a
lien upon the condominium assessed when the
management body causes a notice of assessment to be
registered with the Registered of Deeds of the city or
province where such condominium project is located.
Article 491
None of the co-owners shall, without the consent of
the others, make alterations in the thing owned in
common, even though benefits for all would result
therefrom. However, if the withholding of the
consent by one or more of the co-owners is clearly
prejudicial to the common interest, the courts may
afford adequate relief. (397a)
Article 492
For the administration and better enjoyment of the
thing owned in common, the resolutions of the
majority of the co-owners shall be binding.
There shall be no majority unless the resolution is
approved by the co-owners who represent the
Property | VENTEROSO
controlling interest in the object of the co-
ownership.
Should there be no majority, or should the
resolution of the majority be seriously prejudicial to
those interested in the property owned in common,
the court, at the instance of an interested party, shall
order such measures as it may deem proper,
including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to
one of the co-owners, and the remainder is owned
in common, the preceding provision shall apply only
to the part owned in common. (398)
Acts of alterations
GR: The law prohibits the making of alterations in the
thing owned in common without the consent of the
other co-owners (even if beneficial). Consent of all co-
owners to the making of the alteration on the thing
owned in common.
XPN: If the withholding of the consent by one or
more of the co-owners is clearly prejudicial to the
common interest, the courts may afford adequate
relief.
Alterations
 the act by virtue of which a co-owner, in
opposition to the express agreement, if there is
any, or, in default thereof, to the tacit
agreement of all the co-owners, and violating
their will, changes the thing from that state in
which the others believe it should remain or
withdraws it from the use to which they wish it
to be intended.
 Include any act of strict dominion or
ownership and any encumbrance or
disposition (Arambulo v. Nolasco)
A co-owner cannot give valid consent to a third
person to build a house on the co-owned property
because the construction of a house on the co-
owned property is an act of dominion which
requires unanimous consent of all co-owners
(Cruz v. Catapang)
Form of consent
The law does not clarify the kind of consent necessary
for the making of alterations. The consent of all co-
owners may be given expressly or tacitly, previous
to the act or even after its commission.
Acts of administration
Administration Alteration
refer to the enjoyment of more permanent result
the thing and are of a and relate to the
transitory character substance or form of the
thing
With respect to acts of administration and better
enjoyment of the thing owned in common, the
resolution of the majority of the co-owners shall be
sufficient.
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

3) right to alienate, assign or mortgage it, and even

Majority - do not refer to numerical majority but to substitute another person in its enjoyment,
majority of interest. The law provides that “there even without the consent of other co-owners
shall be no majority unless the resolution is XPN: personal rights
approved by the co-owners who represent the
controlling interest in the object of the co- In affirming the decision of the CA, the Supreme
ownership. Court ruled that a co-owner cannot be compelled
by the court to give his/her consent to the sale
Rules of his/her share in a co-owned property. Art 491
1) Does not include repairs does not apply to the problem arising out of the
2) When the enjoyment of the thing does not proposed sale of the property co-owned by the
require its modification, whatever modification parties (Arambulo v. Nolasco)
or change that is done will be considered an
Effects of alienation or mortgage
alteration within the terms of Article 491
1) The sale will only affect the portion which may
3) When the thing in its nature requires changes
be allotted to him in the division upon the
in its exploitation, such modifications and
termination of the co-ownership.
variations should be considered as falling under
2) The buyers become the co-owners of the
the acts of simple administration.
property
3) The co-ownership subsists
Court intervention
4) If there is a sale of the whole property, it is not
1) Should there be no majority
null and void but only the rights of the co-
2) Should the resolution of the majority be
owner seller are transferred. An implied
seriously prejudicial to those interested in the
trust is created by force of law.
property owned in common
5) Action for annulment of sale and recovery of
When considered prejudicial
possession are not proper remedies. The
 when the resolution calls for a
proper remedy would be action for partition
substantial change or alteration of
under Rule 69 of the Rules of Court.
the common property or of the use to
6) In mortgage, the creditor-mortgagee who
which it has been dedicated by
acquired the co-owned property at a public
agreement or by its nature
auction merely held the property in trust for
 when the resolution goes beyond the
the co-owner who did not mortgage his share
limit of mere administration or
7) When the purchaser knew of, could have
invades proprietary rights of the co-
known, the existence of the co-ownership and
owners in violation of Article 491
yet did not seek the consent or authorization of
 when the majority authorizes lease,
the other co-owners in the sale of the entire
loans or other contracts without
property, he may not be considered a purchaser
security, exposing the thing to serious
in good faith.
danger to the prejudice of the other co-
 Registered land – not required to go
owners
behind the register to determine the
 when the majority refuses to dismiss an
condition of the property
administrator who is guilty of fraud or
 Unregistered land – required to go
negligence in his management, or
beyond what was presented as title
he does not have the respectability,
 The rule that persons dealing with
aptitude, and solvency required of
registered lands can rely solely on the
persons holding such positions.
certificate of title does not apply to
banks
Article 493
Each co-owner shall have the full ownership of his
part and of the fruits and benefits pertaining thereto, A contract of sale which purports to sell a specific
and he may therefore alienate, assign or mortgage it, or definite portion of unpartitioned land is null
and even substitute another person in its enjoyment, and void ab initio because a co-owner cannot sell
except when personal rights are involved. But the a definite portion of the land without consent from
effect of the alienation or the mortgage, with respect his or her co-owners if the alienation precedes the
to the co-owners, shall be limited to the portion partition. (Cabrera v. Ysaac)
which may be allotted to him in the division upon
the termination of the co-ownership. (399) There can be no doubt that the transaction entered
into by Salome and Soledad could be legally
Rights over the ideal share recognized in its entirety since the object of the sale
1) right to the full ownership of his part did not even exceed the ideal shares held by the
former in the co-ownership. As a matter of fact, the
2) right to the fruits and benefits pertaining to his
deed of sale executed between the parties expressly
part
stipulated that the portion of Lot 162 sold to
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Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Soledad would be taken from Salome’s 4/16
undivided interest in said lot, which the latter could
validly transfer in whole or in part even without the
consent of the other co-owners. Salome’s right to
sell part of her undivided interest in the co-owned
property is absolute in accordance with the well-
settled doctrine that a co-owner has full ownership
of his pro-indiviso share and has the right to alienate,
assign or mortgage it, and substitute another person
in its enjoyment. Since Salome’s clear intention was
to sell merely part of her aliquot share in Lot 162, in
our view no valid objection can be made against it
and the sale can be given effect to the full extent
We are not unaware of the principle that a co-owner
cannot rightfully dispose of a particular portion of a
co-owned property prior to partition among all the
co-owners. However, this should not signify that the
vendee does not acquire anything at all in case a
physically segregated area of the co-owned lot is in
fact sold to him. Since the co-owner/ vendor’s
undivided interest could properly be the object of
the contract of sale between the parties, what the
vendee obtains by virtue of such a sale are the same
rights as the vendor had as co-owner, in an ideal
share equivalent to the consideration given under
their transaction. In other words, the vendee steps
into the shoes of the vendor as co-owner and
acquires a proportionate abstract share in the
property held in common. (Del Campo v. CA)
Where a parcel of land, forming past of the
undistributed properties of the dissolved conjugal
partnership of gains, is sold by a widow to a
purchaser who merely relied on the face of the
certificate of title thereto, issued solely in the name
of the widow, the purchaser acquires a valid title to
the land even as against the heirs of the deceased
spouse. (Cruz v. Leis)
Sale of property without the consent of the other
spouse
ACOP CPOG
rules on co-ownership governed by the rules on
apply in a suppletory contract of partnership
manner in all that is not in
conflict with what is
expressly determined in
the chapter or by the
spouses in their
marriage settlements
The sale is both void
The regime of conjugal partnership of gains is a
special type of partnership, where the husband and
wife place in a common fund the proceeds,
products, fruits and income from their separate
properties and those acquired by either or both
spouses through their efforts or by chance. Unlike
the absolute community of property wherein the
rules on co-ownership apply in a suppletory manner,
the conjugal partnership shall be governed by the
rules on contract of partnership in all that is not in
conflict with what is expressly determined in the
Property | VENTEROSO
chapter (on conjugal partnership of gains) or by the
spouses in their marriage settlements.
The basic and established fact is that during his
lifetime, without the knowledge and consent of his
wife, Marcelino Dailo, Jr. constituted a real estate
mortgage on the subject property, which formed
part of their conjugal partnership. By express
provision of Article 124 of the Family Code, in the
absence of (court) authority or written consent of
the other spouse, any disposition or encumbrance of
the conjugal property shall be void. (Homeowner’s
Savings & Loan Bank v. Dailo)
Co-ownership in Article 147 of the Family Code
Sale of property acquired during cohabitation
Before termination VOID if without the
consent of the other
After termination Article 493 applies
Right of legal redemption in co-ownership
Article 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the other
co-owners or of any of them, are sold to a third
person. If the price of the alienation is grossly
excessive, the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to exercise the
right of redemption, they may only do so in
proportion to the share they may respectively have
in the thing owned in common. (1522a)
Article 1623. The right of legal pre-emption or
redemption shall not be exercised except within
thirty days from the notice in writing by the
prospective vendor, or by the vendor, as the case
may be. The deed of sale shall not be recorded in
the Registry of Property, unless accompanied by an
affidavit of the vendor that he has given written
notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that
of adjoining owners. (1524a)
Art 1620 Art 1088
The right of redemption Sale is the hereditary
that arises in favor of the right itself, fully or in
other co-heirs when the part, in the abstract
sale consists of an sense, without specifying
interest in some any particular object
particular property or
properties of the
inheritance,
Requisites
1) There must be a co-ownership;
2) one of the co-owners sold his right to a
stranger;
3) the sale was made before the partition of the
co-owned property;
4) the right of redemption must be exercised by
one or more co-owners within a period of
thirty days to be counted from the time that
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
he or they were notified in writing by the
vendee or by the co-owner vendor; and
 While it is true that written notice is
required by the law, it is equally true
that the same “Art 1623 does not
prescribe any particular form of notice,
nor any distinctive method for
notifying the redemptioner” (Etcuban
v. CA)
 Where the co-owners had actual notice
of the sale at the time thereof and/or
afterwards, a written notice of a fact
already known to them, would be
superfluous (Si v. CA)
 Method of notice must be deemed
exclusive and indispensable
(Salatandol v Retes) (Conejero v.
CA) (Barcellano v. Baas) (Pascual v.
Ballesteros) – CONTROLLING
 May be any other notice as long as
written (summons or sheriff’s
certificate of sale)
The co-owner is also deemed to have been given
notice of the sale by the execution and signing
of the Deed of Extrajudicial Partition and
Exchange of Share (Fernandez v. Tarun)
5) the vendee must be reimbursed for the price
of the sale
The exercise of a right of legal redemption
thereunder presupposes the existence of co-
ownership at the time the conveyance is made by
a co-owner and when it is demanded by the
other co-owner or co-owners. (Avila v. Barabat)
When the portion is sold to a co-owner, the right
does not arise because a new participant is not
added to the co-ownership. (Fernandez v. Tarun)
Right of pre-emption
In this jurisdiction, the legal provisions on co-
ownership do not grant to any of the owners of a
property held in common a pre-emptive right to
purchase the pro indiviso shares of his co-owners.
Article 494
No co-owner shall be obliged to remain in the co-
ownership. Each co-owner may demand at any time
the partition of the thing owned in common, insofar
as his share is concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended
by a new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years.
Neither shall there be any partition when it is
prohibited by law.
Property | VENTEROSO
No prescription shall run in favor of a co-owner or
co-heir against his co-owners or co-heirs so long as
he expressly or impliedly recognizes the co-
ownership. (400a)
Article 495
Notwithstanding the provisions of the preceding
article, the co-owners cannot demand a physical
division of the thing owned in common, when to do
so would render it unserviceable for the use for
which it is intended. But the co-ownership may be
terminated in accordance with article 498. (401a)
Partition - is the separation, division and assignment
of a thing held in common among those to whom it
may belong. The thing itself may be divided, or its
value.
Every act which is intended to put an end to indivision
among co-heirs and legatees or devisees is deemed to
be a partition, although it should purport to be a sale,
an exchange, a compromise or any other transaction.
Two issues in an action for partition
1) whether the plaintiff is indeed a co-owner of
the property sought to be partitioned
2) how the property is to be divided
RULES
GR:
1) Each co-owner may demand at any time the
partition of the thing owned in common,
insofar as his share is concerned.
Limitations
2) Contracts - An agreement to keep the thing
undivided for a certain period of time
 >10 years – VOID only as to the
period beyond such maximum*
*the remedy is to extend the period in a new agreement
 < or = 10 years – VALID
 This term may be extended by a new
agreement
3) Donation or succession - A donor or testator
may prohibit partition for a period which shall
not exceed twenty years
4) When partition is prohibited by law
Examples (Family Code)
Article 134. In the absence of an express
declaration in the marriage settlements, the
separation of property between spouses
during the marriage shall not take place
except by judicial order. Such judicial
separation of property may either be
voluntary or for sufficient cause. (190a)
Article 159. The family home shall continue
despite the death of one or both spouses or
of the unmarried head of the family for a
period of ten years or for as long as there is
a minor beneficiary, and the heirs cannot
partition the same unless the court finds
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compelling reasons therefor. This rule challenged ruling of the respondent court is,
shall apply regardless of whoever owns the therefore, based on erroneous premises.
property or constituted the family home. (Tan v. CA)
(238a)
Adille case Tan case
5) When there is no repudiation of the co- The redemption by By their knowing
ownership - No prescription shall run in favor one co-heir or co- acts of omission, the
of a co-owner or co-heir against his co-owners owner of the heirs in the Tan case
or co-heirs so long as he expressly or impliedly property in its allowed the
recognizes the co-ownership. totality does not extinction of their
6) When partition would render the thing vest in him co-ownership.
unserviceable for the use for which it is ownership over it.
intended (Art 495) A compromise
agreement between
D. Annie Tan and
Extinguishment of co-ownership the bank was
1) By the merger in one person of all the interest obtained after
of the co-ownership; expiration of the
A redemption by a co-owner within the redemption period
period prescribed by law inures to the There is no There is
benefit of all the other co-owners. In such a extinguishment extinguishment
situation, therefore, the redemption made by
one co-owner will simply entitle him to 2) By prescription of the thing or right in favor
collect reimbursement from the remaining of third persons or a co-owner;
co-owners pursuant to the provisions of GR: No prescription shall lie in favor of a co-
Article 488 considering that redemption
owner or co-heirs as long as he expressly or
entails a necessary expense.
impliedly recognizes the co-ownership
The right of repurchase may be XPN: When there is clear repudiation
exercised by a co-owner with aspect to Requisites
his share alone. While the records show 1) The co-owner has performed unequivocal
that the petitioner redeemed the property in acts of repudiation amounting to an
its entirety, shouldering the expenses ouster of the other co-owners
therefor, that did not make him the owner of  the filing by a trustee of an action
all of it. In other words, it did not put to end in court against the trustor to quiet
the existing state of co-ownership. title to the property, or for
recovery of ownership thereof,
While a vendee a retro, under Article 1613 of held in possession by the former,
the Code, “may not be compelled to consent
may constitute an act of
to a partial redemption,” the redemption
by one co-heir or co-owner of the repudiation of the trust reposed on
property in its totality does not vest in him by the latter
him ownership over it. Failure on the part 2) Such positive acts of repudiation have been
of all the co-owners to redeem it entitles the made known to the other co-owners
vendee a retro to retain the property and 3) The evidence thereof is clear and
consolidate title thereto in his name. But the convincing
provision does not give to the redeeming co- 4) He has been in possession through open,
owner the right to the entire property. It continuous, exclusive, notorious
does not provide for a mode of terminating possession of the property for the period
a co-ownership. (Adille v. CA) required by law

The records show, however, that when the
petitioner purchased the disputed property
on August 30, 1974, any coownership
among the brothers and sisters no longer
existed. The period to redeem had expired
more than one year earlier, on July 6, 1973.
The respondent China Bank
consolidated its ownership and a new
title was issued in the bank’s name.
When the heirs allowed the one-year
redemption period to expire without
redeeming their parents’ former property
and permitted the consolidation of
ownership and the issuance of a new title,
the co-ownership was extinguished. The
Effects of clear repudiation
1) such co-owner may acquire the entire
property by virtue of acquisitive
prescription if his possession meets all the
requirements of the law, and after the
expiration of the prescriptive period; or
2) the other co-owners who were deprived of
their share may lose their right to seek a
declaration of the existence of the co-
ownership and of their rights
thereunder because the same may already
be barred under the statute of limitations
(or extinctive prescription)
45

Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Article 494 has been interpreted to mean that the
action for partition is imprescriptible or cannot be
barred by laches.
Between dismissal with prejudice under Rule 17,
Section 3 and the right granted to co-owners under
Article 494 of the Civil Code, the latter must prevail.
To construe otherwise would diminish the
substantive right of a co-owner through
promulgation of procedural rules. (Quintos v.
Nicolas)
From the moment one of the co-owners claims that
he is the absolute and exclusive owner of the
properties and denies the others any share therein,
the question involved is no longer one of partition
but of ownership.
It was held that the issuance of the new title in the
name of one of the co-owners constituted an open
and clear repudiation of the trust or coownership
and as the certificate of title was notice to the whole
world of his exclusive title to the land, such rejection
was binding on the other co-owners and started as
against them the period of prescription. (Delima v.
CA)
Reconveyance in an implied trust
Article 1456. If property is acquired through mistake
or fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the
benefit of the person from whom the property
comes.
Article 1144. The following actions must be brought
within ten years from the time the right of action
accrues:
(1) Upon a written contract;
(2) Upon an obligation created by law;
(3) Upon a judgment. (n)
Owner Not the owner
Proper Quieting of title Reconveyance
remedy/action based on an
implied trust
Prescription Imprescriptible Within 10 years
from
registration or
issuance of title
3) By destruction of the thing or loss of the
right which is owned in common; and
4) By partition of the property owned in
common.
Article 496
Partition may be made by agreement between the
parties or by judicial proceedings. Partition shall be
governed by the Rules of Court insofar as they are
consistent with this Code. (402)
Owner
If in possession If not in possession
Property | VENTEROSO
The right to demand The prescriptive period
partition will not of the right to demand
prescribe partition will run
The fact that the agreement of partition lacks the
technical description of the parties’ respective
portions or that the subject property was then still
embraced by the same certificate of title could not
legally prevent a partition, where the different
portions allotted to each were determined and
became separately identifiable (Rizal v. Naredo)
Article 497
The creditors or assignees of the co-owners may take
part in the division of the thing owned in common
and object to its being effected without their
concurrence. But they cannot impugn any partition
already executed, unless there has been fraud, or in
case it was made notwithstanding a formal
opposition presented to prevent it, without prejudice
to the right of the debtor or assignor to maintain its
validity. (403)
Article 498
Whenever the thing is essentially indivisible and the
co-owners cannot agree that it be allotted to one of
them who shall indemnify the others, it shall be sold
and its proceeds distributed. (404)
When should the co-owned property be converted
to monetary considerations
1) The right to partition the property among the
co-owners is invoked by any of them but the
thing is essentially indivisible
2) Co-owners cannot agree that it be allotted to
one of them who shall indemnify the others
Inasmuch as the parties were in agreement as regards
the fact that the subject properties should not be
partitioned, and private respondents continued to
manifest their desire to terminate the co-ownership
arrangement between petitioners and themselves,
respondent trial judge acted within his jurisdiction
when he issued his order dated February 4, 1981
requiring the parties to answer certain questions for
the purpose of determining whether or not the legal
conditions for the applicability of Article 498 of the
New Civil Code were present in the case (Reyes v.
Concepcion)
Article 499
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.
Personal rights pertaining to third persons against
the co-ownership shall also remain in force,
notwithstanding the partition. (405)
Article 500
Upon partition, there shall be a mutual accounting
for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
for damages caused by reason of his negligence or
fraud. (n)
Article 501
Every co-owner shall, after partition, be liable for
defects of title and quality of the portion assigned to
each of the other co-owners. (n)
Legal effects of partition
1) The co-ownership is terminated
2) Each co-owner becomes the absolute and
exclusive owner of the share allotted to him
Article 543. 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.
(450a)
3) It shall not prejudice the rights of third
persons, who shall retain the rights of
mortgage, servitude, or any other real rights
belonging to them before the division was
made. (Art 499)
4) Personal rights pertaining to third persons
against the ownership shall also remain in
force. (Art 499)
5) there shall be a mutual accounting for benefits
received and reimbursements for expenses
made. Likewise, each co-owner shall pay for
damages caused by reason of his negligence or
fraud. (Art 500)
6) They shall reimburse one another for the
income and fruits which each one of them may
have received from any property of the estate,
for any useful and necessary expenses made
upon such property, and for any damage
thereto through malice or neglect.
7) Every co-owner shall be liable for defects of
title and quality of the portion assigned to each
of the other co-owners. (Art 501)
TITLE IV
SOME SPECIAL PROPERTIES
CHAPTER 1
Waters
SECTION 1
Ownership of Waters
Article 502
The following are of public dominion:
(1) Rivers and their natural beds;
Property | VENTEROSO
(2) Continuous or intermittent waters of springs and
brooks running in their natural beds and the beds
themselves;
(3) Waters rising continuously or intermittently on
lands of public dominion;
(4) Lakes and lagoons formed by Nature on public
lands, and their beds;
(5) Rain waters running through ravines or sand
beds, which are also of public dominion;
(6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of
public works, even if constructed by a contractor;
(8) Waters rising continuously or intermittently on
lands belonging to private persons, to the State, to a
province, or to a city or a municipality from the
moment they leave such lands;
(9) The waste waters of fountains, sewers and public
establishments. (407)
Article 503
The following are of private ownership:
(1) Continuous or intermittent waters rising on lands
of private ownership, while running through the
same;
(2) Lakes and lagoons, and their beds, formed by
Nature on such lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they
remain within the boundaries;
(5) The beds of flowing waters, continuous or
intermittent, formed by rain water, and those of
brooks, crossing lands which are not of public
dominion.
In every drain or aqueduct, the water, bed, banks and
floodgates shall be considered as an integral part of
the land of building for which the waters are
intended. The owners of lands, through which or
along the boundaries of which the aqueduct passes,
cannot claim ownership over it, or any right to the
use of its bed or banks, unless the claim is based on
titles of ownership specifying the right or ownership
claimed. (408)
*repealed by RA 1067, Section 6
SECTION 2
The Use of Public Waters
Article 504
The use of public waters is acquired:
(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the use
shall be that established, in the first case, by the
terms of the concession, and, in the second case, by
the manner and form in which the waters have been
used. (409a)
*repealed by RA 1067, Section 3
ARTICLE 3. The underlying principles of this code
are:
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
a. All waters belong to the State.
b. All waters that belong to the State can not be
the subject to acquisitive prescription.
c. The State may allow the use or development of
waters by administrative concession.
d. The utilization, exploitation, development,
conservation and protection of water resources shall
be subject to the control and regulation of the
government through the National Water Resources
Council, hereinafter referred to as the Council.
e. Preference in the use and development of waters
shall consider current usages and be responsive to
the changing needs of the country.
Article 505
Every concession for the use of waters is understood
to be without prejudice to third persons. (410)
Article 506
The right to make use of public waters is
extinguished by the lapse of the concession and by
non-user for five years. (411a)
Governing laws on waters
1950
Before NCC
1) The Civil Code of Spain of 1889 (the Old Civil
Code
2) The Spanish Law on Waters of 1866
3) The Irrigation Act (Act No. 2152), which was
passed by the Philippine Legislature in 1912
After NCC
1) The Civil Code of Spain of 1889 (the Old Civil
Code – EXPRESSLY REPEALED
2) The Spanish Law on Waters of 1866 – NO
EXPRESS REPEAL
3) The Irrigation Act (Act No. 2152), which was
passed by the Philippine Legislature in 1912 –
NO EXPRESS REPEAL
1976
The Water Code of the Philippines (PD 1067) –
EXPRESSLY REPEALED the Irrigation Act
- the provisions of the Spanish Law on Waters
of 1866 and the New Civil Code on ownership
of waters, easements relating to waters, use of
public waters and acquisitive prescription on
the use of waters, were considered repealed
only to the extent that they were inconsistent
with the provisions of the Water Code of the
Philippines.
Ownership of waters
GRs (Art 3, RA 1067)
1) All waters belong to the State.
2) All waters that belong to the state cannot be
the subject of acquisitive prescription.
3) The State may allow the use or development of
waters by administration concession.
Property | VENTEROSO
4) The utilization, exploitation, development,
conservation and protection of water resources
shall be subject to the control and regulation of
the government through the National Water
Resources Council, hereinafter referred to as
the Council.
5) Preference in the use and development of
waters shall consider current usages and be
responsive to the changing needs of the
country.
XPN: For those waters found on private lands
mentioned in Article 6 of the Water Code of the
Philippines, the owner of the land may use the waters
for domestic without securing a permit from the
National Water Resources Council, although the
Council may regulate such use in two occasions:
1) when there is wastage; or
2) in times of emergency.
RA 1067
Art. 6. The following waters found on private lands
also belong to the States:
a) Continuous or intermittent waters rising on such
lands;
b) Lakes and lagoons naturally occurring on such
lands;
c) Rain water and falling on such lands;
d) Subterranean or ground waters; and
e) Waters in swamps and marshes.
Subterranean ground waters
GR: Article 437 of the New Civil Code provides that
the ownership of lands extends to the surface as well
as to the subsoil under it
XPNs:
1) subterranean ground waters
2) minerals (La Bugal B’laan v. Ramos)
SECTION 3
The Use of Waters of Private Ownership
Article 507
The owner of a piece of land on which a spring or
brook rises, be it continuous or intermittent, may use
its waters while they run through the same, but after
the waters leave the land they shall become public,
and their use shall be governed by the Special Law
of Waters of August 3, 1866, and by the Irrigation
Law. (412a)
Article 508
The private ownership of the beds of rain waters
does not give a right to make works or constructions
which may change their course to the damage of
third persons, or whose destruction, by the force of
floods, may cause such damage. (413)
Article 509
No one may enter private property to search waters
or make use of them without permission from the
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
owners, except as provided by the Mining Law.
(414a)
Article 510
The ownership which the proprietor of a piece of
land has over the waters rising thereon does not
prejudice the rights which the owners of lower
estates may have legally acquired to the use thereof.
(415)
Article 511
Every owner of a piece of land has the right to
construct within his property, reservoirs for rain
waters, provided he causes no damage to the public
or to third persons. (416)
SECTION 4
Subterranean Waters
Article 512
Only the owner of a piece of land, or another person
with his permission, may make explorations thereon
for subterranean waters, except as provided by the
Mining Law.
Explorations for subterranean waters on lands of
public dominion may be made only with the
permission of the administrative authorities. (417a)
Article 513
Waters artificially brought forth in accordance with
the Special Law of Waters of August 3, 1866, belong
to the person who brought them up. (418)
Article 514
When the owner of waters artificially brought to the
surface abandons them to their natural course, they
shall become of public dominion. (419)
SECTION 5
General Provisions
Article 515
The owner of a piece of land on which there are
defensive works to check waters, or on which, due
to a change of their course, it may be necessary to
reconstruct such works, shall be obliged, at his
election, either to make the necessary repairs or
construction himself, or to permit them to be done,
without damage to him, by the owners of the lands
which suffer or are clearly exposed to suffer injury.
(420)
Article 516
The provisions of the preceding article are applicable
to the case in which it may be necessary to clear a
piece of land of matter, whose accumulation or fall
may obstruct the course of the waters, to the damage
or peril of third persons. (421)
Article 517
All the owners who participate in the benefits arising
from the works referred to in the two preceding
articles, shall be obliged to contribute to the
expenses of construction in proportion to their
Property | VENTEROSO
respective interests. Those who by their fault may
have caused the damage shall be liable for the
expenses. (422)
Article 518
All matters not expressly determined by the
provisions of this Chapter shall be governed by the
Special Law of Waters of August 3, 1866, and by the
Irrigation Law. (425a)
GR: Ordinarily, appropriation of water is not
authorized without a “water permit,” which is the
privilege granted by the government to appropriate and
use water
XPNs:
1) For use of waters found on private lands by the
owner thereof but only for domestic
purposes. Use of water for “domestic
purpose” is the utilization of water for
drinking, washing, bathing, cooking or other
household needs, home gardens, and watering
of lawns or domestic animals.
2) For appropriation or use of natural bodies of
water
 Appropriation of water by means
of hand-carried receptacles; and
 Bathing or washing, watering or
dipping of domestic or farm
animals, and navigation of
watercrafts or transportation of
logs and other objects by
floatation.
National Water Resources Board
 The utilization, exploitation, development,
conservation and protection of water resources
shall be subject to the control and regulation of
the government through the National Water
Resources Council
 The power to modify, suspend, cancel or
revoke water permits already issued also rests
with NWRB
CHAPTER 2
Minerals
Article 519
Mining claims and rights and other matters
concerning minerals and mineral lands are governed
by special laws. (427a)
Governing laws
1) Republic Act 7942 – Philippine Mining Act of
1995
2) Republic Act 7076 – People’s Small-Scale
Mining Act of 1991; for small-scale mining
activities
CHAPTER 3
Trade-marks and Trade-names
Article 520
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A trade-mark or trade-name duly registered in the  Possession in one’s own name /

proper government bureau or office is owned by and possession in the name of another (Art
pertains to the person, corporation, or firm 524)
registering the same, subject to the provisions of  Possession in the concept of an owner
special laws. (n) / possession in the concept of a holder
(Art 525)
Article 521
 Possession in good faith / possession
The goodwill of a business is property, and may be
transferred together with the right to use the name in bad faith (Art 526)
under which the business is conducted. (n)
SUMMARY
Article 522 Possession in the Art 433; actual
Trade-marks and trade-names are governed by concept of an owner possession under the
special laws. (n) claim of ownership
raises the disputable
Governing laws presumption of
1) Republic Act 8293 (Sections 121-170) – ownership
Intellectual Property Code of the Philippines
May be exercised in
one’s own name or
another (Art 524)
TITLE V Possession in the One who possesses as a
POSSESSION concept of a holder mere holder
acknowledges in
CHAPTER 1 another a superior
Possession and the Kinds Thereof right which he believes
to be ownership,
Article 523 whether his belief be
Possession is the holding of a thing or the enjoyment right or wrong (Carlos v.
of a right. (430a) Republic)

Possession - the holding of a thing or the May be exercised in

enjoyment of a right. It is clear that the concept of
possession extends to both:
1) Corporeal things (“things”)
2) Incorporeal things (“rights”)
According to Castan, the concept of possession
connotes the following:
1) it implies a relation between a person and
things;
2) such relation is one of power or control; and
3) such control is one of fact which is effective
but without resolving whether it carries
with it or not a title of ownership.
Elements of possession
1) there must be occupancy, apprehension or
taking; and
2) there must be intent to possess (animus
possidendi)
Types of possession
1) Jus possidendi - a mere incident of ownership
(a right included therein)
2) Jus possessionis - a right independent and
apart from ownership; “right of possession”
- Since the possession discussed in Title V of
Book II is independent from ownership and
not necessarily based therefrom, this part of
the Civil Code is dealing with jus possessionis.
one’s own name or
another (Art 524)
Possession in good faith there exists in his title or
/ possession in bad faith mode of acquisition any
flaw which invalidates it
(Art 526)
good faith – he who is
not aware
bad faith – he who is
aware
From the peculiar facts of this case, it is clear that
petitioner never took actual control and
possession of the property sold, in view of
respondent's timely objection to the sale and the
continued actual possession of the property. The
objection took the form of a court action impugning
the sale which, as we know, was rescinded by a
judgment rendered by this Court in the mother case.
It has been held that the execution of a contract of
sale as a form of constructive delivery is a legal
fiction. It holds true only when there is no
impediment that may prevent the passing of the
property from the hands of the vendor into those
of the vendee. When there is such impediment,
"fiction yields to reality — the delivery has not been
effected." (Equatorial Realty v. Mayfair)
Article 524
Possession may be exercised in one's own name or
in that of another. (413a)
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The circumstance that after the sale, the Manalilis

Possession in one’s own name resided in Manila and Pangasinan is of no moment.
Embraces all kinds of possession anchored on a As it is, possession may be exercised in one’s own
juridical title or right, e.g., possession by the owner name or in that of another. It is not necessary that
himself, possession by a lessee or a mere usufructuary. the owner or holder of the thing exercise personally
1) If both the fact of possession and the right to the rights of possession. Rights of possession may
such possession are found in the same person, be exercised through agents. (Santos v.
Manalili)
such possession is said to be exercised in one’s
own name.
2) If, on the other hand, the right to the Article 525
possession is in one person while the fact of The possession of things or rights may be had in one
of two concepts: either in the concept of owner, or
possession is in another person and the latter
in that of the holder of the thing or right to keep or
merely acts in representation of the former, the enjoy it, the ownership pertaining to another person.
latter’s possession is said to be exercised in (432)
another’s name.
In the concept of an owner or holder
Possession in that of another Owner Holder
Possession by a person without any right of his own A possessor in the One who possesses as a
and one which is strictly of an agent or merely an concept of an owner mere holder
instrument in the exercise of such possession. This is may be the owner acknowledges in another
when another person who recognizes the rights of the himself or one who a superior right which
owner is in occupation. claims to be so (Carlos he believes to be
v. Republic) ownership, whether his
Owner Agent belief be right or wrong
Exercises possession Has actually no right to (Carlos v. Republic)
through his possess but possesses refers to the opinion or
caretaker/agent the property in behalf of belief of the neighbors
the owner. The and the rest of the world
possession is beneficial and not that of the
to the owner/principal possessor
and not on the agent Considered as
himself in terms of possessors in the
actions that may be concept of holder with
instituted by virtue of respect to the thing itself,
such possession. but considered as
possessors in the
Actual possession of land consists in the concept of owner with
manifestation of acts of dominion over it of such a respect to their right
nature as those a party would naturally exercise over the concept of an owner Lessee, usufructuary, etc.
his own property. It is not necessary that the owner may be the owner
of a parcel of land should himself occupy the himself or one who
property as someone in his name may perform the claims to be so (bad faith
act. In other words, the owner of real estate has is immaterial)
possession, either when he himself is physically in
occupation of the property, or when another person It must be noted that possession is the holding of a
who recognizes his rights as owner is in such thing or the enjoyment of a right. It is acquired by
occupancy. This declaration is conformably with the material occupation of a thing or the exercise
Art. 524 of the Civil Code providing that of a right, or by the fact that a thing or right is
possession may be exercised in one’s own name subject to the action of one’s will, or by the
or in the name of another. proper acts and legal formalities established for
acquiring such right. ‘By material occupation of a
An example of actual possession of real property by thing,’ it is not necessary that the person in
an owner through another is a lease agreement possession should be the occupant of the property;
whereby the lessor transfers merely the temporary the occupancy can be held by another in his name.
use and enjoyment of the thing leased. The Palacios
spouses have been the lessees of petitioner since In the case at bar, it is not disputed that after the
1967 occupying the house erected on the property foreclosure of the property in question and the
subject of the second sale. Petitioner was in actual issuance of new certificates of title in favor of the
possession of the property through the respondent, the petitioner and the respondent
Palacioses and remained so even after the entered into a contract of lease of the subject
execution of the second deed of sale. (Reyes v. properties. This new contractual relation
CA) presupposed that the petitioner recognized that
possession of the properties had been legally placed
in the hands of the respondent, and that the latter
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Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
had taken such possession but delivered it to the
former as lessee of the property. By paying the
monthly rentals, the petitioner also recognized the
superior right of the respondent to the possession of
the property as owner thereof. And by accepting the
monthly rentals, the respondent enjoyed the fruits of
its possession over the subject property. Clearly, the
respondent is in material possession of the subject
premises. Thus, the trial court’s issuance of a writ
of possession is not only superfluous, but
improper under the law. Moreover, as a lessee, the
petitioner was a legitimate possessor of the subject
properties under Article 525 of the Civil Code. Thus,
it could not be deprived of its lawful possession by
a mere ex parte motion for a writ of possession.
In a nutshell, where a lease agreement, whether
express or implied, is subsequently entered into by
the mortgagor and the mortgagee after the
expiration of the redemption period and the
consolidation of title in the name of the latter, a case
for ejectment or unlawful detainer, not a motion
for a writ of possession, is the proper remedy in
order to evict from the questioned premises a
mortgagor-turned-lessee. (Bukidnon Doctor’s v.
Metrobank)
Possession may be had in one of two ways:
possession in the concept of an owner and
possession of a holder. A possessor in the concept
of an owner may be the owner himself or one
who claims to be so. On the other hand, one who
possesses as a mere holder acknowledges in
another a superior right which he believes to be
ownership, whether his belief be right or wrong.
Petitioner herein acknowledges the sale of the
property to Ususan Development Corporation in
1996 and in fact promised to deliver the certificate
of title to the corporation upon its obtention. Hence,
it cannot be said that her possession since 1996 was
under a bona fide claim of ownership. Under the
law, only he who possesses the property under a
bona fide claim of ownership is entitled to
confirmation of title.” (Carlos v. Republic)
Article 526
He is deemed a possessor in good faith who is not
aware that there exists in his title or mode of
acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who possesses
in any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law
may be the basis of good faith. (433a)
Article 527
Good faith is always presumed, and upon him who
alleges bad faith on the part of a possessor rests the
burden of proof. (434)
Article 528
Possession acquired in good faith does not lose this
character except in the case and from the moment
facts exist which show that the possessor is not
Property | VENTEROSO
unaware that he possesses the thing improperly or
wrongfully. (435a)
Article 529
It is presumed that possession continues to be
enjoyed in the same character in which it was
acquired, until the contrary is proved. (436)
Possession in good faith or bad faith
 Is a state of mind
Good faith –
 He is deemed a possessor in good faith who is
not aware that there exists in his title or mode
of acquisition any flaw which invalidates it (Art
526).
 Good faith is always presumed, and upon him
who alleges bad faith on the part of a possessor
rests the burden of proof. (Art 527)
 Possession acquired in good faith does not lose
this character except in the case and from the
moment facts exist which show that the
possessor is not unaware that he possesses the
thing improperly or wrongfully. (Art 528)
 It is presumed that possession continues to be
enjoyed in the same character in which it was
acquired, until the contrary is proved. (Art 529)
 Must be based upon some title or mode of
acquisition
 A person who has no title or mode of
acquisition but whose occupation of the land
of another is by reason of the latter’s tolerance
or permission cannot be considered a
possessor or builder in good faith.
 Must be based on a colorable right
 GR: Knowledge that the land was not owned
constitutes bad faith
XPN: When builders knew that they were not
the owners of the land but they constructed
improvements on the land of another with the
consent of the owner
 Possessors in the concept of holders are not
possessors in good faith
 For one to be considered a possessor in good
faith, it is not sufficient that there be flaw or
defect in his title. In addition, it is essential that
such flaw or defect in the title must be such
that it will have the effect of invalidating the
title. If the flaw or defect does not result in the
invalidation of the title, he is not merely a
possessor in good faith but the owner
Mistake of law
GR: it is only ignorance or mistake of fact which serves
as basis of good faith but not mistake of law in view of
the principle enshrined in Article 3 of the New Civil
Code
XPN: Article 526 par 3 which provides that mistake
upon a doubtful or difficult question of law may be the
basis of good faith. According to Manresa, so long as
there is no gross and inexcusable ignorance of the law,
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

mistake upon a doubtful or difficult question of law accorded to it under Art

may be the basis of good faith. 414

It is a fact that Marcial Kasilag is not conversant with
the laws because he is not a lawyer. In accepting the
mortgage of the improvements he proceeded on the
well-grounded belief that he was not violating the
prohibition regarding the alienation of the land. In
taking possession thereof and in consenting to
receive its fruits, he did not know that the possession
and enjoyment of the fruits are attributes of the
contract of antichresis and that the latter, as a lien,
was prohibited by Section 116. These considerations
again bring the Supreme Court to the conclusion
that, as to the Kasilag, his ignorance of the
provisions of section 116 is excusable and may,
therefore, be the basis of his good faith. The Kasilag
is deemed a possessor in good faith (Kasilag v.
Roque)
Article 433. Actual possession under claim of
ownership raises disputable presumption of
ownership. The true owner must resort to judicial
process for the recovery of the property. (n)
Modes of acquiring possession
Original mode
Bad faith
if there are no other facts from which the
interruption of good faith may be determined, and
an action is filed to recover possession, good faith
ceases from the date of receipt of the summons
to appear at the trial and if such date does not
appear in the record, that of the filing of the answer
would control. (Tacas v. Tobon)
It must be emphasized, however, that only things
and rights which are susceptible of being
appropriated may be the object of possession. The
following cannot be appropriated and hence, cannot
be possessed: property of the public dominion,
common things (res communes) such as sunlight
and air, and things specifically prohibited by law.
(Republic v. Cortez)
CHAPTER 2
Acquisition of Possession
Article 531
Possession is acquired by the material occupation of
a thing or the exercise of a right, or by the fact that
it is subject to the action of our will, or by the proper
acts and legal formalities established for acquiring
such right. (438a)
1) By material occupation of a thing or the
exercise of a right; (involves the constructive delivery
of tradition brevi manu and tradition constitutum
possessorium)
2) By subjecting the thing or right to the action of
our will; and (tradition longa manu and tradition
symbolica)

1) facts from which the interruption of good faith Derivative mode

may be determined 3) By the proper acts and legal formalities
2) date of receipt of the summons to appear at the established for the acquisition of such right.
trial
3) if such date does not appear in the record, that Requisites
of the filing of the answer 1) Corpus – material holding
2) Animus possidendi – intent to possess
Article 530
Only things and rights which are susceptible of being Occupation
appropriated may be the object of possession. (437) Art 531 (Possession) Art 712 (Ownership)
Ordinary and Juridical and technical
Object of possession grammatical meaning meaning
1) Things susceptible of being appropriated Mode of acquiring Mode of acquiring
2) Rights susceptible of being appropriated possession ownership
Applies whether the Can take place only
The following cannot be the object of possession: property is with an when the property is
owner or without an without an owner
1) Those outside the commerce of man
owner
2) Those which by reason of physical
Can have as its object a Cannot have as its
impossibility cannot be subjected to human parcel of land object a parcel of land
control (OCENCO (Art 714)
possession)
Object of possession Property
Susceptible to May be the object of Things Rights
appropriation appropriation By material occupation By the exercise of a right
Includes those which Includes those which of a thing
are within commerce of are outside the By subjecting the thing or right to the action of our
men aside from commerce of men will
embracing the meaning By the proper acts and legal formalities established
for the acquisition of such right.
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Doctrine of constructive possession
GR: Possession in the eyes of the law does not mean
that a man has to have his feet on every square meter
of the ground before he is deemed in possession.
(Somodio v. CA)
Possession in the eyes of the law does not mean that
a man has to have his feet on every square meter of
the ground before he is deemed in possession.
Even if the Spouses Dela Rosa were already residing
in Manila, they could continue possessing the
Property in Bulacan. The fact of their residence in
Manila, by itself, does not result in loss of possession
of the Property in Bulacan. The law does not require
one in possession of a house to reside in the house
to maintain his possession. (Dela Rosa v. Carlos)
XPN:
While there was evidence showing that the claimant
might have possessed a portion of the parcel claimed
by him and the registration of which he sought, such
evidence, however, was insufficient to establish with
certainty the particular portion occupied and the
extent of such occupation. The Court clarified that
while possession in the eyes of the law does not
mean that a man has to have his feet on every square
meter of ground before it can be said that he is in
possession, the same is not gained by mere nominal
claim. Hence, the mere planting of a sign or symbol
of possession cannot justify a Magellan like claim of
dominion over an immense tract of territory. In
reiteration of the ruling in Ramos, the Court clarified
that the application of the doctrine of
constructive possession shall depend, among
others, to the size of the tract in controversy with
reference to the portion actually in possession of
the claimant. (Lasam v. Director of Lands)
Mere fact of declaring uncultivated land for taxation
purposes and visiting it every once in a while, as was
done by the alleged possessor, does not constitute
acts of possession. (Ramirez v. Director of Lands)
Subjection to action of will
What is important in this mode is the intention to
possess manifested by certain facts which are present.
Included in this mode are the two forms of
constructive delivery known as tradicion simbolica and
tradicion longa manu.
Proper acts and legal formalities
Any juridical act by which possession is acquired or to
which the law gives the force of acts of possession.
Examples
1) Donation
2) Succession
3) Execution
4) Registration of public instruments
5) Inscription of possessory information titles
Property | VENTEROSO
 the possession given by the sheriff to the
assignees of the original purchasers of the
hacienda, in compliance with the order of the
court in an action brought against the former
owners of said hacienda was viewed by the
Supreme Court as constituting the proper acts
and legal formalities referred to in Article 531
of the New Civil Code. (Muyco v. Montilla)
 although it did not immediately put the same to
active use, respondent appears to have
additionally caused the property to be
regisistered in its name and to have paid the
real property taxes due thereon alongside the
sundry expenses incidental thereto. The Court
ruled that such juridical acts were sufficient to
establish the respondent’s acts prior possession
of the subject property (Nunez v. SLTEAS)
Article 532
Possession may be acquired by the same person who
is to enjoy it, by his legal representative, by his agent,
or by any person without any power whatever: but
in the last case, the possession shall not be
considered as acquired until the person in whose
name the act of possession was executed has ratified
the same, without prejudice to the juridical
consequences of negotiorum gestio in a proper case.
(439a)
By whom possession is acquired
1) owner, either personally or through an
agent/representative
2) holder, either personally or through an
agent/representative
3) any person without any power whatever
Through an agent
1) said agent should have the intention of
acquiring for the principal and not for himself
2) that the agent must have authority to possess
for the principal
3) the principal must have authorized the act of
the agent or subsequently ratified the same
Through any person without any power whatever
1) must be ratified by the person in whose name
the act of possession was executed
2) if not ratified, the juridical consequences of
negotiorum gestio will apply
Article 2144. Whoever voluntarily takes charge of the
agency or management of the business or property
of another, without any power from the latter, is
obliged to continue the same until the
termination of the affair and its incidents, or to
require the person concerned to substitute him,
if the owner is in a position to do so. This juridical
relation does not arise in either of these instances:
(1) When the property or business is not neglected
or abandoned;
(2) If in fact the manager has been tacitly authorized
by the owner.
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
In the first case, the provisions of articles 1317,
1403, No. 1, and 1404 regarding unauthorized
contracts shall govern.
In the second case, the rules on agency in Title X of
this Book shall be applicable. (1888a)
Article 2147. The officious manager shall be liable
for any fortuitous event:
(1) If he undertakes risky operations which the
owner was not accustomed to embark upon;
(2) If he has preferred his own interest to that of
the owner;
(3) If he fails to return the property or business
after demand by the owner;
(4) If he assumed the management in bad faith.
(1891a)
Article 2150. Although the officious management
may not have been expressly ratified, the owner of
the property or business who enjoys the advantages
of the same shall be liable for obligations incurred
in his interest, and shall reimburse the officious
manager for the necessary and useful expenses
and for the damages which the latter may have
suffered in the performance of his duties.
The same obligation shall be incumbent upon him
when the management had for its purpose the
prevention of an imminent and manifest loss,
although no benefit may have been derived. (1893)
Article 2152. The officious manager is personally
liable for contracts which he has entered into with
third persons, even though he acted in the name of
the owner, and there shall be no right of action
between the owner and third persons. These
provisions shall not apply:
(1) If the owner has expressly or tacitly ratified the
management, or
(2) When the contract refers to things pertaining to
the owner of the business. (n)
Article 2153. The management is extinguished:
(1) When the owner repudiates it or puts an end
thereto;
(2) When the officious manager withdraws from
the management, subject to the provisions of article
2144;
(3) By the death, civil interdiction, insanity or
insolvency of the owner or the officious manager.
(n)
Article 533
The possession of hereditary property is deemed
transmitted to the heir without interruption and
from the moment of the death of the decedent, in
case the inheritance is accepted.
One who validly renounces an inheritance is deemed
never to have possessed the same. (440)
Property | VENTEROSO
Article 534
On who succeeds by hereditary title shall not suffer
the consequences of the wrongful possession of the
decedent, if it is not shown that he was aware of the
flaws affecting it; but the effects of possession in
good faith shall not benefit him except from the date
of death of the decedent. (442)
Rules in possession through succession
1) The possession of hereditary property is
deemed transmitted to the heir without
interruption and from the moment of the
death of the decedent
Provided, it must be ACCEPTED
2) One who validly renounces an inheritance is
deemed never to have possessed the same
3) On who succeeds by hereditary title shall not
suffer the consequences of the wrongful
possession of the decedent
Provided, he must not be in BAD FAITH
Rationale: Bad faith is personal and
intransmissible
4) Effects of possession in good faith shall not
benefit him
XPN: from the date of death of the
decedent
Nevertheless, assuming that claimant Escritor was a
possessor in bad faith, this should not prejudice his
successors-in-interest, petitioners herein, as the rule
is that only personal knowledge of the flaw in
one’s title or mode of acquisition can make him a
possessor in bad faith, for bad faith is not
transmissible from one person to another, not even
to an heir. The reason for this article is that bad faith
is personal and intransmissible. Its effects must,
therefore, be suffered only by the person who acted
in bad faith; his heir should not be saddled with such
consequences. (Escritor v. IAC)
Article 535
Minors and incapacitated persons may acquire the
possession of things; but they need the assistance of
their legal representatives in order to exercise the
rights which from the possession arise in their favor.
(443)
Article 536
In no case may possession be acquired through force
or intimidation as long as there is a possessor who
objects thereto. He who believes that he has an
action or a right to deprive another of the holding of
a thing, must invoke the aid of the competent court,
if the holder should refuse to deliver the thing.
(441a)
Article 537
Acts merely tolerated, and those executed
clandestinely and without the knowledge of the
possessor of a thing, or by violence, do not affect
possession. (444)
Minors and incapacitated persons
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Things - may acquire the possession of things
Rights - they need the assistance of their legal
representatives in order to exercise the rights which
from the possession arise in their favor.
Judicial capacity and not capacity to act
1) Material occupation
2) Succession
3) Donation
Article 38. Minority, insanity or imbecility, the
state of being a deaf-mute, prodigality and civil
interdiction are mere restrictions on capacity to act,
and do not exempt the incapacitated person from
certain obligations, as when the latter arise from his
acts or from property relations, such as easements.
(32a)
Instances where possession is not acquired
1) Use of force or intimidation
The rule that possession may not be acquired
through force or intimidation as long as there
is a possessor who objects thereto applies even
if the one seeking recovery of possession is the
owner of the property himself.
In case of forcible entry cases
Accordingly, a person in possession cannot be
ejected by force, violence or terror, not even by
the owners, and notwithstanding the actual
condition of the title to the property. If such
illegal manner of ejectment is employed, the
party who proves prior possession can
recover possession even from the owners
themselves.
Even if a possessor is physically ousted from the
property through the use of force or violence, he is
still deemed the legal possessor in the eyes of the
law. (Cequeña v. Bolante)
Granting arguendo that petitioners illegally entered
into and occupied the property in question,
respondents had no right to take the law into their
own hands and summarily or forcibly eject the
occupants therefrom. Verily, even if petitioners were
mere usurpers of the land owned by respondents,
still they are entitled to remain on it until they are
lawfully ejected therefrom. Under appropriate
circumstances, respondents may file, other than an
ejectment suit, an accion publiciana — a plenary action
intended to recover the better right to possess; or an
accion reivindicatoria — an action to recover ownership
of real property. The availment of the
aforementioned remedies is the legal alternative to
prevent breaches of peace and criminal disorder
resulting from the use of force by claimants out to
gain possession. The rule of law does not allow the
mighty and the privileged to take the law into their
own hands to enforce their alleged rights. They
should go to court and seek judicial vindication
(Heirs of Laurora v. Sterling)
Property | VENTEROSO
2) Acts merely tolerated
Persons whose occupation of a property is by
sheer tolerance of its owners are not
considered as possessors in law. In the
language of the Court, “tolerance in itself does
not bear any legal fruit, and it can easily be
supplanted by a sudden change of heart on the
part of the owner.”
He becomes a deforciant illegally occupying
the land the moment he is required to leave and
the cause of action for the filing of the
ejectment case is counted from the date of the
demand to vacate.
Article 1119. Acts of possessory character executed
in virtue of license or by mere tolerance of the owner
shall not be available for the purposes of
possession. (1942)
Tolerance – something not wholly approved of
- It does not include those agreements
constituting a contract between the parties
3) Clandestine and unknown acts
In order for possession to remain unaffected,
it is necessary that the acts executed must be
both clandestine and unknown to the
possessor
Effects
Actual possessor Legal possessor
possession acquired Possession is not
through clandestine deemed interrupted
acts not known to Acquisitive
the legal possessor prescription will not
will not ripen into be interrupted
ownership through Right to receive
prescription fruits will not be
interrupted
Article 538
Possession as a fact cannot be recognized at the
same time in two different personalities except in the
cases of co-possession. Should a question arise
regarding the fact of possession, the present
possessor shall be preferred; if there are two
possessors, the one longer in possession; if the dates
of the possession are the same, the one who presents
a title; and if all these conditions are equal, the thing
shall be placed in judicial deposit pending
determination of its possession or ownership
through proper proceedings. (445)
Possession de facto
The law recognizes a situation where the fact of
possession (possession de facto) and the right to
such possession (possession de jure) are in the
hands of two different persons
The law does not, however, recognize the possibility
that possession de facto may reside at the same
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
time in two different personalities unless they are
co-possessors
In case of conflict involving the question of
possession as a fact, the following rules of
preference shall govern:
1) The present possessor shall be preferred;
2) If there are two possessors, the one longer
in possession is preferred; (both are still legal
possessors if possession is not considered interrupted)
3) If the dates of possession are the same,
the one who presents a title
4) If all the foregoing conditions are equal, the
thing shall be placed in judicial deposit
pending determination of its possession
or ownership through proper proceedings.
In terms of question of possession
We concede that despite their dispossession in 1985,
the petitioners did not lose legal possession because
possession cannot be acquired through force or
violence. To all intents and purposes, a possessor,
even if physically ousted, is still deemed the legal
possessor. Indeed, anyone who can prove prior
possession, regardless of its character, may recover
such possession.
However, possession by the petitioners does not
prevail over that of the respondent. Possession by
the former before 1985 was not exclusive, as the
latter also acquired it before 1985. The records show
that the petitioners’ father and brother, as well as the
respondent and her mother were simultaneously in
adverse possession of the land.
Based on Article 538 of the Civil Code, the
respondent is the preferred possessor because,
benefiting from her father’s tax declaration of the
subject lot since 1926, she has been in possession
thereof for a longer period. On the other hand,
petitioners’ father acquired joint possession only in
1952.
In terms of question of ownership
Ownership of immovable property is acquired by
ordinary prescription through possession for ten
years. Being the sole heir of her father, respondent
showed through his tax receipt that she had been in
possession of the land for more than ten years since
1932. When her father died in 1930, she continued
to reside there with her mother. When she got
married, she and her husband engaged in kaingin
inside the disputed lot for their livelihood.
Respondent’s possession was not disturbed until
1953 when the petitioners’ father claimed the land.
But by then, her possession, which was in the
concept of owner, public, peaceful, and
uninterrupted had already ripened into ownership.
Furthermore she herself, after her father’s demise,
declared and paid realty taxes for the disputed land.
Tax receipts and declarations of ownership for
taxation, when coupled with proof of actual
possession of the property, can be the basis of a
claim for ownership through prescription. It is
settled that ownership cannot be acquired by mere
Property | VENTEROSO
occupation. Unless coupled with the element of
hostility toward the true owner, occupation and use,
however long, will not confer title by prescription or
adverse possession. (Cequeña v. Bolante)
CHAPTER 3
Effects of Possession
Article 539
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 filing
thereof. (446a)
According to the Supreme Court, the phrase “every
possessor” in the article indicates that all kinds of
possession, from that of the owner to that of a mere
holder, except that which constitutes a crime, should
be respected and protected by the means established
and the laws of procedure.
True, by this principle of respect for the possessory
status, a wrongful possessor may at times be upheld by
the courts, but this is only temporary and for one sole
and special purpose, namely, the maintenance of public
order. The protection is only temporary because it is
intended that as soon as the lawless act of
dispossession has been suppressed, the question of
ownership or of possession de jure is to be settled in
the proper court and in a proper action. (Manuel v.
CA)
Actions to recover possession
1) Accion interdictal
2) Accion publiciana
3) In addition, the law also allows an auxiliary
remedy of the writ of preliminary mandatory
injunction to prevent further acts of
dispossession – only in actions of forcible entry
Writ of preliminary injunction
Forcible entry Unlawful detainer
Available at the start of the action in both forcible
entry and unlawful detainer
Available in the RTC
Reduced to 5 days instead of 10 under Sec 15 and 20
of the 1997 Rules of Civil Procedure
issuance of a preliminary writ of mandatory action
can be availed of on appeal to the higher court in
case the appeal of the lessee is frivolous or dilatory
or the appeal of the lessor is prima facie meritorious.
Article 540
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring
dominion. (447)
Article 541
A possessor in the concept of owner has in his favor
the legal presumption that he possesses with a just
title and he cannot be obliged to show or prove it.
(448a)
Article 542
The possession of real property presumes that of the
movables therein, so long as it is not shown or
proved that they should be excluded. (449)
Effects of possession in the concept of an owner
1) It raises a disputable presumption of
ownership (Art. 433, NCC).
2) It creates a disputable presumption that the
possessor has just title and he cannot be
obliged to show it. (Art. 541, NCC)
Article 1129. For the purposes of
prescription, there is just title when the
adverse claimant came into possession of the
property through one of the modes
recognized by law for the acquisition of
ownership or other real rights, but the
grantor was not the owner or could not
transmit any right. (n)
Article 434. In an action to recover, the
property must be identified, and the plaintiff
must rely on the strength of his title and
not on the weakness of the defendant's
claim. (n)
XPN: acquisitive prescription
 The presumption of the existence of a
just title in favor of the possessor en
concepto de dueño may not be availed by
him for the purpose of acquiring
ownership through acquisitive
prescription. For the latter purpose, the
law requires that the just title of the
possessor must be proved
Article 1131. For the purposes of
prescription, just title must be proved; it is
never presumed. (1954a)
Just title – may be oral or written evidences
3) It can ripen into ownership through acquisitive
prescription (Art. 540, NCC), subject to the
additional requirements under Article 1118 of
the Civil Code
Article 1118. Possession has to be in the
concept of an owner, public, peaceful and
uninterrupted. (1941)
 Mere possession with a juridical title
(possession in the concept of a holder),
such as by usufructuary, trustee, lessee,
Property | VENTEROSO
agent or a pledgee, not being in the
concept of an owner, cannot ripen into
ownership by acquisitive prescription,
unless the juridical relation is first
expressly repudiated and such
repudiation has been
communicated
The action initiated by Marcelo’s heirs would not
prosper on the theory that Flores already has
acquired ownership of the disputed land by ordinary
acquisitive prescription.
The contract executed by Cruz and the heirs of
Sarmiento includes the encroached property, as
found by the trial court and the appellate court. And
when Cruz sold the land to Flores, the latter
immediately took possession of the same to the
exclusion of all others and promptly paid the realty
taxes thereon. From that time on, Flores had been
in possession of the entire area in the concept of an
owner and holding it in that capacity for almost 14
years before the heirs of Marcelo initiated their
complaint in 1982. The records of the case
supported the holding of the appellate court that the
requirements for ordinary prescription have been
duly met Flores took possession of the controverted
property in good faith and with just title because the
said portion was an integral part of the bigger tract
of land which he bought from Cruz. Further, Flores’
possession was not only in the concept of an owner
but also public, peaceful and uninterrupted. Hence,
the Court found no cogent reasons to reverse the
finding s of the appellate court and thus gave its
affirmance to the assailed decision (Marcelo v. CA)
Article 543
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. (450a)
Co-possession
GR: In relation to Article 538, the law does not
recognize the possibility of possession de facto residing
at the same time in two different personalities
XPN: They are co-possessors
If the co-possession is under claim of ownership, each
of the co-possessors is considered as the possessor of
the whole and over the whole each may exercise the
right of possession, subject to the similar right of the
other co-possessors.
Effects of partition in the event of partition
1) In the event of partition, however, each of the
co-possessors shall be deemed to have
exclusively possessed the part which may be
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

allotted to him for the entire period that the received or fruits received REIMBURSE
state of co-possession lasted. severed by him before THE
2) Any interruption in the possession of the his possession is LEGITIMATE
whole or part of a thing possessed in common legally POSSESSOR
shall be to the prejudice of all the co- interrupted (Art (Art 549)
possessors. 526)
Shall have a
 the co-possessors can claim ownership
right to
only of the area through acquisitive 1) PGP –
prescription not occupied by a third production,
party or subject to interruption and gathering,
only this area can be the subject of preservation
partition among the co-possessors (Art 443)
2) Necessary
Article 544 expenses
A possessor in good faith is entitled to the fruits (Art 546)
received before the possession is legally interrupted. Pending Applies only to If the legitimate
fruits natural and possessor is able
Natural and industrial fruits are considered received industrial to recover the
from the time they are gathered or severed. fruits property from a
possessor in bad
Civil fruits are deemed to accrue daily and belong to The possessor faith at a time
the possessor in good faith in that proportion. (451) and the owner when the fruits
shall have a are still pending,
Article 545 right to a part of it is not Article
If at the time the good faith ceases, there should be the net harvest 549 that will
any natural or industrial fruits, the possessor shall and each shall apply but Article
have a right to a part of the expenses of cultivation, divide the 449 of the New
and to a part of the net harvest, both in proportion expenses of Civil Code
to the time of the possession. cultivation,
both in
The charges shall be divided on the same basis by proportion to
the two possessors. the time of their
respective
The owner of the thing may, should he so desire, possessions.
give the possessor in good faith the right to finish
the cultivation and gathering of the growing fruits, The owner of
as an indemnity for his part of the expenses of the thing may,
cultivation and the net proceeds; the possessor in should he so
good faith who for any reason whatever should desire, give the
refuse to accept this concession, shall lose the right possessor in
to be indemnified in any other manner. (452a) good faith the
right to finish
Right of possessors to fruits the cultivation
GR: Fruits belong to the owner pursuant to the law on and gathering of
accesion discreta (Art 441) the growing
fruits, as an
indemnity for
Article 441. To the owner belongs:
his part of the
1) The natural fruits;
expenses of
2) The industrial fruits;
cultivation and
3) The civil fruits. (354)
the net
proceeds; the
XPN: A possessor in good faith is entitled to the possessor in
fruits received before the possession is legally good faith who
interrupted. (Art 544) for any reason
whatever
Since possession in this title is separate from should refuse to
ownership (jus possessionis), different rules apply accept this
for the right of possession of the fruits concession,
shall lose the
Good faith Bad faith right to be
Fruits The possessor NOT indemnified in
already in good faith is ENTITLED; any other
entitled to the SHALL manner
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

Legal interruption - Whatever may be the cause or
the fact from which it can be deduced that the
possessor has knowledge of the defects of his title or
mode of acquisition, it must be considered sufficient to
show bad faith. Hence, the interruption of good faith
on the part of the possessor need not occur by reason
of initiation of legal proceedings.
1) facts from which the interruption of good faith
may be determined
2) date of receipt of the summons to appear at the
trial
3) if such date does not appear in the record, that
of the filing of the answer (Tacas v. Tobon)
When fruits are considered received
1) natural - from the time they are gathered or
severed
2) civil - deemed to accrue daily and belong to the
possessor in good faith in that proportion
3) industrial - from the time they are gathered or
severed
may have at the time he enters into possession.
(445a)
Necessary expenses - those made for the
preservation of the thing or those without which
the thing would deteriorate or be lost.
Land taxes
Land taxes (real estate taxes) are not considered
necessary expenses under the provisions of Article 546
of the New Civil Code because they are not for the
preservation of the thing itself but only for the
preservation of its possession. Instead, they are
regarded as “charges” which the possessor and owner
must bear in proportion to their respective possessions
pursuant to the provision of the second paragraph of
Article 545.
Useful expenses - those incurred to give greater utility
or productivity to the property. These expenses
increase the value of the thing and result in
improvements, called useful improvements

Article 546 Ornamental expenses - those which do not increase

Necessary expenses shall be refunded to every the productiveness of the thing but merely embellish
possessor; but only the possessor in good faith may the same
retain the thing until he has been reimbursed
therefor. Possessor/Builder
Rights to Good faith Bad faith
Useful expenses shall be refunded only to the expenses
possessor in good faith with the same right of Necessary REFUNDABLE with REFUNDABLE (Art
retention, the person who has defeated him in the RIGHT TO RETAIN 549)
(Art 546)
possession having the option of refunding the REFUNDABLE with NONREFUNDABLE
amount of the expenses or of paying the increase in Useful
RIGHT TO RETAIN (Art 549)
value which the thing may have acquired by reason (Art 546)
(1) to refund the
thereof. (453a) amount of the
expenses; or (2) to pay
Article 547 the increase in value
which the thing may
If the useful improvements can be removed without have acquired by
damage to the principal thing, the possessor in good reason of the useful
faith may remove them, unless the person who expenses
recovers the possession exercises the option under RIGHT TO
paragraph 2 of the preceding article. (n) REMOVE IF NO
INJURY and
IF OWNER DOES
Article 548 NOT PREFER TO
Expenses for pure luxury or mere pleasure shall not REFUND (Art 547)
be refunded to the possessor in good faith; but he Ornamental NONREFUNDABLE, NONREFUNDABLE
may remove the ornaments with which he has (Art 548) (Art 549)
embellished the principal thing if it suffers no injury RIGHT TO RIGHT TO
thereby, and if his successor in the possession does REMOVE IF NO REMOVE IF NO
not prefer to refund the amount expended. (454) INJURY and INJURY and
IF OWNER DOES IF OWNER DOES
NOT PREFER TO NOT PREFER TO
Article 549 RETAIN RETAIN
The possessor in bad faith shall reimburse the fruits POSSESSION OF POSSESSION OF
THE ORNAMENTS THE ORNAMENTS
received and those which the legitimate possessor BY REIMBURSING BY REIMBURSING
could have received, and shall have a right only to THE VALUE (actual THE VALUE (value
the expenses mentioned in paragraph 1 of article 546 amount) at the time the owner
enters into possession)
and in article 443. The expenses incurred in (Art 548) (Art 549)
improvements for pure luxury or mere pleasure shall ^the owner of the land is prohibited from offsetting or
not be refunded to the possessor in bad faith, but he compensating the necessary and useful expenses with
may remove the objects for which such expenses the fruits received by the builder-possessor in good
have been incurred, provided that the thing suffers faith.
no injury thereby, and that the lawful possessor does
not prefer to retain them by paying the value they
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Property | VENTEROSO
 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

Article 550
The costs of litigation over the property shall be (1) By the abandonment of the thing;
borne by every possessor. (n) (2) By an assignment made to another either by
onerous or gratuitous title;
Article 551 (3) By the destruction or total loss of the thing, or
Improvements caused by nature or time shall always because it goes out of commerce;
inure to the benefit of the person who has succeeded (4) By the possession of another, subject to the
in recovering possession. (456) provisions of article 537, if the new possession has
lasted longer than one year. But the real right of
Article 552 possession is not lost till after the lapse of ten years.
A possessor in good faith shall not be liable for the (460a)
deterioration or loss of the thing possessed, except
in cases in which it is proved that he has acted with Voluntary modes Involuntary modes
fraudulent intent or negligence, after the judicial By the abandonment of By the destruction or
summons. the thing; total loss of the thing, or
because it goes out of
A possessor in bad faith shall be liable for spes recuperandi (hope of commerce;
deterioration or loss in every case, even if caused by recovery or recapture) is
a fortuitous event. (457a) gone and the animus
revertendi (intent to
Article 553 recover) is finally given
One who recovers possession shall not be obliged to up
pay for improvements which have ceased to exist at By an assignment made By the possession of
the time he takes possession of the thing. (458) to another either by another, subject to the
onerous or gratuitous provisions of article 537,
Liability of possessors for loss or deterioration title; if the new possession
Good faith Bad faith has lasted longer than
not liable at all for the GR: liable for any one year. But the real
deterioration or loss of deterioration or loss of right of possession is not
the thing possessed the thing “in every case” lost till after the lapse
even when the same is of ten years.
caused by fortuitous
event Abandonment
That there was no abandonment of the property and
XPN: The possessor that defendant Rey was guilty of the crime of
who is originally in good robbery. He who has a right may renounce it. This
faith but becomes in bad act by which thing is voluntary renounced
faith upon the service of constitutes an abandonment. There is no real
the judicial summons on intention to abandon a property when, as in the case
him shall be liable for of a shipwreck or a fire, things are thrown into the
any deterioration or loss sea upon the highway. Property cannot be
of the thing possessed considered abandoned under the law and the
only if the same is caused possession left vacant for the finder until the spes
by his negligence or recuperandi is gone and the animus revertendi is finally
fraudulent acts given up. (US v. Rey)

Article 554 Assignment

A present possessor who shows his possession at For assignment to be validly made, it is necessary that
some previous time, is presumed to have held the assignor be in the concept of owner and that he has
possession also during the intermediate period, in the capacity to alienate.
the absence of proof to the contrary. (459)
Destruction or loss of the thing
GR: If the present possessor can show proof that he
It is understood that a thing is lost when it perishes, or
was also in possession of the property at some previous
goes out of commerce, or disappears in such a manner
time, his possession will be presumed to be continuous
that its existence is unknown or cannot be recovered.
covering even the intermediate period.
Possession by another
XPN: if the possession is transmitted by hereditary
If the possession of another lasts for more than one
title, the presumption of continuity of possession is
year, only possession de facto is lost but not the real
one which is conclusive and may not be overthrown by
right of possession (possession de jure). Possession de
proof to the contrary.
jure, on the other hand, is not lost until after the lapse
of ten (10) years.
Article 555
A possessor may lose his possession:
Possession de facto – lost if more than one year
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Possession de jure – not lost until after the lapse of ten
years
if the dispossession lasted for more than one year, the
proper action to be filed is an accion publiciana since the
real right of possession (possession de jure) is not lost
until after the lapse of ten (10) years.
acts which are merely tolerated and those executed
clandestinely and without the knowledge of the
possessor or through violence as long as there is a
possessor who objects thereto – only possession de
facto is lost
Article 556
The possession of movables is not deemed lost so
long as they remain under the control of the
possessor, even though for the time being he may
not know their whereabouts. (461)
Rules with respect to misplaces movables
When a movable is simply misplaced or mislaid, the
possessor does not automatically lose possession
because the movable is still deemed remaining under
his control even though for the time being he may not
know its whereabouts.
Article 557
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. (462a)
Article 558
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, unless he gave said
holder express authority to do such acts, or ratifies
them subsequently. (463)
Article 559
The possession of movable property acquired in
good faith is equivalent to a title. Nevertheless, one
who has lost any movable or has been unlawfully
deprived thereof, may recover it from the person in
possession of the same.
If the possessor of a movable lost or which the
owner has been unlawfully deprived, has acquired it
in good faith at a public sale, the owner cannot
obtain its return without reimbursing the price paid
therefor. (464a)
Possession of movables
Possession of movables acquired in good faith does
not only create a presumption of ownership but it is
already equivalent to title.
Requisites
1) the movable property must be acquired in good
faith; and
Property | VENTEROSO
2) the possession must be in the concept of
owner.
Irreivindicability
GR: When a movable property is in the possession of
one who has acquired it and holds it in good faith, the
true owner cannot recover it as a general rule for the
title is valid even against him.
XPN: Pursuant to Article 559, if the owner has lost a
thing, or if he has been unlawfully deprived of it, he has
a right to recover it, not only from the finder, thief or
robber, but also from third persons who may have
acquired it in good faith from such finder, thief or
robber. (even without indemnity)
XPN of XPN: Public sale - one where there has been
public notice of the sale and in which anybody has a
right to bid and offer to buy (with indemnity)
Rules on finders
Article 719. Whoever finds a movable, which is not
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 finding shall be publicly announced by the
mayor for two consecutive weeks in the way he
deems best.
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.
Six months from the publication having elapsed
without the owner having appeared, the thing found,
or its value, shall be awarded to the finder. The
finder and the owner shall be obliged, as the case
may be, to reimburse the expenses. (615a)
Plaintiff, therefore, can still recover possession of
the car even if it is in the possession of a third party
who had acquired it in good faith from defendant B.
The maxim that “no man can transfer to another a
better title than he had himself” obtains in the civil
as well as in the common law (Aznar v.
Yapdiangco)
Aznar EDCA Tagatac
Possessor is in good faith
Not acquired in a public sale
Unlawfully Not unlawfully deprived
deprived
No transfer of There is transfer of ownership
ownership
Remedy is Remedy is an ordinary action for
Article 559; collection of sum of money
Can recover against the buyer, with recovery
without of damages
indemnity
Cases where there is no recovery
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 If the possessor acquired the thing at a
merchant’s store, or in fairs, or in markets in
accordance with the Code of Commerce and
special laws
 Where the possessor acquired the thing by sale
under statutory power of sale or under the
order of a court of competent jurisdiction
 When the possessor is a holder in due course
of a negotiable document of title to goods261
or where the owner is barred by the principle
of negotiable instruments
 Where the owner is barred by reason of his
own acts or neglect from denying the seller’s
title
 Where the owner can no longer recover the
thing from the possessor by reason of
prescription
Article 560
Wild animals are possessed only while they are under
one's control; domesticated or tamed animals are
considered domestic or tame if they retain the habit
of returning to the premises of the possessor. (465)
Article 561
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. (466)
Kinds of animals under the Code
1) Wild - found in their natural freedom, such as
wild boars and horses roaming the forest (res
nullus)
2) Domesticated or tamed - are those which
were formerly wild but which have been
subdued and retained the habit of returning to
the premises of the possessor or owner
3) Domestic or tame - born or reared under the
control and care of man
TITLE VI
USUFRUCT
CHAPTER 1
Usufruct in General
Article 562
Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form
and substance, unless the title constituting it or the
law otherwise provides. (467)
Usufruct - a real right, of a temporary character, which
authorizes the holder to enjoy all the utilities which
result from the normal exploitation of the property of
another in accordance with its destination and which
imposes the obligation of restoring at the time
specified either the thing itself or in special cases its
equivalent.
Property | VENTEROSO
A usufruct is a real right to enjoy the property of
another temporarily, including the use and fruits
thereon, with the owner retaining the ownership and
the power to alienate the thing. (Moralidad v.
Pernes)
The Court then distinguished a contract of lease with
that of a Usufruct and an Emphyteusis based on its
duration. A Usufruct is a right of superior degree to
that which arises from a lease. It is a real right and
includes the jus utendi and jus fruendi. (Eleizegui
v. Manila Lawn Tennis Club)
Characteristics
1) It is a real right
 Jus utendi and jus fruendi
2) Temporary in character
 The right is extinguished upon
 the expiration of the period
 Upon death of the usufructuary
3) Entitles holder to jus utendi and jus fruendi
 Jus utendi – enjoyment of the thing
 Jus fruendi – natural, industrial and
civil fruits
XPN: When there is agreement
between the parties
Usufruct Commodatum
Has the right to use
The usufructuary has the Bailee does not
right to use the natural, ordinarily acquire the
industrial and civil fruits right to make use of the
fruits of the thing loaned
4) Subject property is a property of another
 Jus in re aliena
 Serves as a limitation upon the owner’s
right to ownership
5) The usufructuary has an obligation to preserve
its form and substance
GR: While the usufructuary is entitled to enjoy
and use the property in usufruct, he is,
ordinarily, obliged to preserve its form and
substance.
XPN: Not an indispensable requirement since
the law or the title constituting the usufruct
may provide otherwise
 When the law or the title creating the
usufruct provides that the usufructuary
is not so obliged;
 When the usufruct includes things
which, without being consumed,
gradually deteriorate through wear and
tear; and (Art 573)
 When the usufruct includes things
which cannot be used without being
consumed. (Art 574)
Substance - matter of the thing, the integral elements
that compose it. The absolute prohibition against
destroying or consuming the thing extends to those
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
acts which destroy or alter certain conditions of the
thing, which though not substantial have been taken
into consideration as essential when the usufruct was
constituted.
Form - extrinsic characteristics of the same, those that
make it apt and adequate for the use, destination and
particular purpose to which the owner intends it. With
respect to form, the usufructuary is prohibited from
altering the thing to its prejudice.
The following alterations are not within the purview of
the prohibition:
1) When the improvement can be removed
without damage to the property at the end of
the usufruct;
2) When although the improvement cannot be
removed it will not cause the successor in the
use of the thing to spend considerable
expenses or attention in its preservation or
exploitation considering the circumstances of
the case; and
3) When although the alteration may be
burdensome to the successor in the use of the
property, the usufructuary guarantees that he
will restore thing to its original state.
While in a Usufruct, if it is in favor of a natural
person: the lifetime of the usufructuary. If in
favor of a juridical person: it cannot be created for
more than thirty years. In an Emphyteusis, which
is a long-term lease of land or buildings, it may be 99
years or such similar long term, or even in perpetuity.
(Eleizegui v. Manila Lawn Tennis Club)
Article 563
Usufruct is constituted by law, by the will of private
persons expressed in acts inter vivos or in a last will
and testament, and by prescription. (468)
Manner of creation
1) By law
 Legal usufruct
 Ex. Usufruct of the parents over the
property of their minor children living
in their custody and under their
parental authority under the provisions
of Article 226 of the Family Code.
Art. 226. The property of the unemancipated child
earned or acquired with his work or industry or by
onerous or gratuitous title shall belong to the child
in ownership and shall be devoted exclusively to the
latter’s support and education, unless the title or
transfer provides otherwise.
The right of the parents over the fruits and
income of the child’s property shall be limited
primarily to the child’s support and secondarily
to the collective daily needs of the family. (321a,
323a)
2) By will of private persons expressed in acts
inter vivos or in a last will and testament
Property | VENTEROSO
 Voluntary usufruct
 In this kind of usufruct, it is necessary
that the usufruct be constituted by the
owner of the property.
3) By prescription
 Mixed usufruct
Article 564
Usufruct may be constituted on the whole or a part
of the fruits of the thing, in favor of one more
persons, simultaneously or successively, and in every
case from or to a certain day, purely or conditionally.
It may also be constituted on a right, provided it is
not strictly personal or intransmissible. (469)
Other classifications of usufruct
1) Total and partial - A usufruct may be
constituted on the whole (“total”) or part
(“partial”) of a thing.
2) Simple and multiple
 Simple – in favor of one person
 Multiple – two or more persons
 Simultaneous - all the persons
in whose favor the usufruct is
constituted are to enjoy the
usufruct at the same time
 Successive - they will enjoy
the usufruct one after another
3) Pure, with a condition or with a period
 With a period – to a certain day
 Purely
 Conditionally
4) Proper (normal) and improper (abnormal)
 Proper - constituted over a non-
consumable thing
 Improper - when it is constituted over
a consumable thing (quasi-usufruct in
Roman Law)
 Art 573 – Things which
gradually deteriorate through
wear and tear
 Art 574 – Consumable things
Object of usufruct
1) Corporeal thing
 Real property
 Personal property
2) Incorporeal thing
 Real right
 Personal right
XPN:
 Must not be strictly personal
 Must not be intransmissible
 It must have its own
independent existence. Hence,
a servitude cannot be the object
of usufruct because it has no
existence independent of the
tenements.
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Article 565
The rights and obligations of the usufructuary shall
be those provided in the title constituting the
usufruct; in default of such title, or in case it is
deficient, the provisions contained in the two
following Chapters shall be observed. (470)
Rights and obligations of the usufructuary
1) Those provided in the title constituting the
usufruct
2) In default of such title, or in case it is deficient, the
provisions contained in the two following
Chapters shall be observed
CHAPTER 2
Rights of the Usufructuary
Article 566
The usufructuary shall be entitled to all the natural,
industrial and civil fruits of the property in usufruct.
With respect to hidden treasure which may be found
on the land or tenement, he shall be considered a
stranger. (471)
Article 582
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. (490)
Parties to a usufruct
1) Naked owner
2) Usufructuary
Rights of a usufructuary
1) Right to possess the property at least during the
effectivity of the usufruct.
2) The usufructuary has the right to enjoy the
property, to the same extent as the owner, but
only with respect to its use and the receipt of
fruits.
 Fruits - Right to draw from the property all the
profits, utilities and advantages which it may
produce, provided it be without altering the
form and substance of the thing.
 Natural, industrial and civil fruits that
will accrue during the existence of the
usufruct.
 A dividend (whether in the form of
cash or stock) is income or civil fruits
and should belong to the usufructuary
and not to the remainderman (naked
owner)
When the company declared a 50% stock dividend
(54,000 shares), Mary wanted said dividend-shares
transferred in her name, alleging that although they
Property | VENTEROSO
were in the form of stocks, they were nevertheless
still fruits and income, and as usufructuary, she was
entitled to them. The other heirs of E.M. Bachrach,
on the other hand claimed that the stock dividends
were not income or fruits, and that they instead
formed part of the capital; hence, that Mary was not
entitled to them.
They are fruits or income, and therefore, they belong
to Mary, the usufructuary. Moreover, dividends
cannot be declared out of the capital. (Bachrach v.
Seifert)
 Products which diminish the capital cannot, for
that reason, be considered fruits, unless a
contrary intent between the parties is clear.
 Use - Entitled to enjoy the utilities derived
from the property provided that it be the result
of the normal exploitation of the property in
accordance with its purpose or destination.
Other cases
 Hidden treasure (Art 566) - The
usufructuary, not being the landowner, is not
entitled as owner, but is entitled as finder (to
one-half of the treasure, as a rule, unless there
is a contrary agreement) if he really is the
finder. If somebody else is the finder, the
usufructuary gets nothing.
Article 567
Natural or industrial fruits growing at the time the
usufruct begins, belong to the usufructuary.
Those growing at the time the usufruct terminates,
belong to the owner.
In the preceding cases, the usufructuary, at the
beginning of the usufruct, has no obligation to
refund to the owner any expenses incurred; but the
owner shall be obliged to reimburse at the
termination of the usufruct, from the proceeds of
the growing fruits, the ordinary expenses of
cultivation, for seed, and other similar expenses
incurred by the usufructuary.
The provisions of this article shall not prejudice the
rights of third persons, acquired either at the
beginning or at the termination of the usufruct. (472)
Rights to fruits
GR: To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits. (Art 441)
XPN:
1) The usufructuary shall be entitled to all the
natural, industrial and civil fruits of the
property in usufruct. (Art 566)
2) Parties agree to the contrary
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Rules on pending natural or industrial fruits
At the beginning of the usufruct
1) Belong to the usufructuary;
2) No necessity of refunding owner for expenses
incurred; but
3) Without prejudice to the right of third persons
 if the fruits had been planted by a
possessor in good faith, the pending
crop expenses and charges shall be pro-
rated between said possessor and the
usufructuary (Art 545)
At the termination of the usufruct
1) Belong to the owner
2) The owner must reimburse the usufructuary
for ordinary cultivation expenses and for the
seeds and similar expenses, from the proceeds
of the fruits.
3) Without prejudice to the right of third persons
Article 568
If the usufructuary has leased the lands or tenements
given in usufruct, and the usufruct should expire
before the termination of the lease, he or his heirs
and successors shall receive only the proportionate
share of the rent that must be paid by the lessee.
(473)
Rule when the usufructuary leases property to
another
GR: The lease executed by the usufructuary should
terminate at the end of the usufruct or earlier
Article 572. The usufructuary may personally enjoy
the thing in usufruct, lease it to another, or alienate
his right of usufruct, even by a gratuitous title; but
all the contracts he may enter into as such
usufructuary shall terminate upon the
expiration of the usufruct, saving leases of rural
lands, which shall be considered as subsisting during
the agricultural year. (480)
XPN: Rural lands which shall be considered as
subsisting during the agricultural year
[NOTE: It is not the naked owner, but the
usufructuary who has the right to choose the tenant.]
Q: A leased his land to B, and before the expiration of
the lease, A gave the usufruct of his land to C. Can C
oust tenant B?
A: No, because Art. 1676 (applicable to a purchaser of
the whole property) cannot apply, the usufructuary not
having the jus disponendi over the property. A contrary
agreement among the three of them will of course be
allowed. Nevertheless, the usufructuary, instead of the
naked owner, would be entitled to the rents for the
duration of the usufruct. (Art 566).
Article 569
Property | VENTEROSO
Civil fruits are deemed to accrue daily, and belong to
the usufructuary in proportion to the time the
usufruct may last. (474).
Article 570
Whenever a usufruct is constituted on the right to
receive a rent or periodical pension, whether in
money or in fruits, or in the interest on bonds or
securities payable to bearer, each payment due shall
be considered as the proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits
accruing from a participation in any industrial or
commercial enterprise, the date of the distribution
of which is not fixed, such benefits shall have the
same character.
In either case they shall be distributed as civil fruits,
and shall be applied in the manner prescribed in the
preceding article. (475)
Civil fruits
1) Right to receive a rent or periodical pension,
whether in money or in fruits, or in the interest
on bonds or securities payable to bearer
2) Enjoyment of benefits accruing from a
participation in any industrial or
commercial enterprise, the date of the
distribution of which is not fixed
 Art 570 applies to both cases when the
date is fixed or not
Rules as to civil fruits
1) They are deemed to accrue daily
2) They shall be deemed to accrue
proportionately to the naked owner and
usufructuary
XPN: If there is a contrary stipulation by the
parties
Article 571
The usufructuary shall have the right to enjoy any
increase which the thing in usufruct may acquire
through accession, the servitudes established in its
favor, and, in general, all the benefits inherent
therein. (479)
Increases in the thing held in usufruct
The right of enjoyment of the usufructuary extends to
1) Fruits
2) Accessions (whether artificial or natural)
3) Servitudes and easements
4) All benefits inherent in the property (like the
right to hunt and fish therein, the right to
construct rain water receptacles, etc.)
Article 572
The usufructuary may personally enjoy the thing in
usufruct, lease it to another, or alienate his right of
usufruct, even by a gratuitous title; but all the
contracts he may enter into as such usufructuary
shall terminate upon the expiration of the usufruct,
saving leases of rural lands, which shall be
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considered as subsisting during the agricultural year.
(480)
Rights with reference to the thing itself
1) He may personally enjoy the thing (that is,
entitled to possession and fruits)
GR: Enjoyment may be by himself or through
another
XPN: Contrary has been provided or
stipulated
2) He may lease the thing to another.
o This can be done even without the
owner’s consent
o The lease ends at the time the usufruct
ends
XPN: in the case of rural leases.
o The relation between the owner and
the usufructuary, does not end just
because a lease has been made.
Rights with reference to the usufructuary right
1) He may alienate (sell, donate, bequeath, or
devise) the usufructuary right
XPN: legal usufruct
o usufruct which parents have over the
properties of their unemancipated
children
o usufruct granted by a usufructuary in
consideration of his person
o usufruct acquired through a caucion
juratoria
2) He may pledge or mortgage the usufructuary
right
Article 573
Whenever the usufruct includes things which,
without being consumed, gradually deteriorate
through wear and tear, the usufructuary shall have
the right to make use thereof in accordance with the
purpose for which they are intended, and shall not
be obliged to return them at the termination of the
usufruct except in their condition at that time; but
he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of
his fraud or negligence. (481)
Abnormal usufruct on things that deteriorate
Refers to usufruct includes things which, without
being consumed, gradually deteriorate through wear
and tear
Effect of the deterioration
1) Through normal use – THE
USUFRUCTUARY IS NOT
RESPONSIBLE
o he can return them in the condition
they might be in at the termination of
the usufruct
o no necessity for him to make any
repairs to restore them to their former
condition
Property | VENTEROSO
2) deteriorate because of an event or act that
endangers their preservation
o even though there was no fault or
negligence or fraud on the part of the
usufructuary, he is still required, to
make the NECESSARY OR
ORDINARY REPAIRS (Art 592)
o deteriorate because of fraud (dolo
incidente or fraud amounting to an
evasion of the obligation to preserve)
or negligence – THE
USUFRUCTUARY IS
RESPONSIBLE (Art 573) but may
SET OFF AGAINST
IMPROVEMENTS (Art 580)
Article 574
Whenever the usufruct includes things which cannot
be used without being consumed, the usufructuary
shall have the right to make use of them under the
obligation of paying their appraised value at the
termination of the usufruct, if they were appraised
when delivered. In case they were not appraised, he
shall have the right to return the same quantity and
quality, or pay their current price at the time the
usufruct ceases. (482)
Abnormal usufruct over consumable things/
quasi-usufruct
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.
Even money may be the object of a usufruct
(Alunan v. Veloso)
Rules for quasi-usufruct
1) The usufructuary (debtor-borrower) can use
them (as if he is the owner, with complete right
of pledge or alienation)
2) At the end of the usufruct, he must
o pay the APPRAISED VALUE (if
appraised when first delivered); or
o 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).
Article 575
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. (483a)
Special usufructs
1) Usufruct over fruit-bearing trees (Art 575)
2) Periodical pension, income, dividends. (Art
570).
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3) Woodland. (Art 577).
4) Right of action to recover real property, real
right, or movable property. (Art 578).
5) Part of property owned in common. (Art 582).
6) Entire patrimony of a person. (Art 598).
7) On a mortgaged immovable. (Art 600).
8) On a flock or herd of livestock. (Art 591).
Usufruct over fruit-bearing trees
GR: The usufructuary has the full and unfettered right
to gather the fruits from the tree
XPN: No right to have the trees cut
XPN of XPN: The usufructuary may use of the
1) dead trunks; as well as those
2) uprooted by accident
provided, he must replace them with new plants
Article 576
If in consequence of a calamity or extraordinary
event, the trees or shrubs shall have disappeared in
such considerable number that it would not be
possible or it would be too burdensome to replace
them, the usufructuary may leave the dead, fallen or
uprooted trunks at the disposal of the owner, and
demand that the latter remove them and clear the
land. (484a)
Usufruct over shrubs in times of calamity
If in consequence of a calamity or extraordinary event,
the trees or shrubs shall have disappeared in such
considerable number that it would not be possible or it
would be too burdensome to replace them, the
usufructuary may leave the dead, fallen or uprooted
trunks at the disposal of the owner, and demand that
the latter remove them and clear the land.
Rules
1) If it is impossible or too burdensome to replace
them, the usufructuary has an OPTION.
a) may use the trunks but should
replace them (Art 575); or
b) may leave the dead, fallen, or uprooted
trunks at the owner’s disposal, and
demand that the latter remove them
and clear the land. (Art 576)
2) If it is slightly burdensome to replace them, the
usufructuary MUST replace them (whether he
uses the dead trunks or not), and he cannot
demand clearance of the land by the owner.
Article 577
The usufructuary of woodland may enjoy all the
benefits which it may produce according to its
nature.
If the woodland is a copse or consists of timber for
building, the usufructuary may do such ordinary
cutting or felling as the owner was in the habit of
doing, and in default of this, he may do so in
accordance with the custom of the place, as to the
manner, amount and season.
Property | VENTEROSO
In any case the felling or cutting of trees shall be
made in such manner as not to prejudice the
preservation of the land.
In nurseries, the usufructuary may make the
necessary thinnings in order that the remaining trees
may properly grow.
With the exception of the provisions of the
preceding paragraphs, the usufructuary cannot cut
down trees unless it be to restore or improve some
of the things in usufruct, and in such case shall first
inform the owner of the necessity for the work. (485)
Special usufruct over woodland
This is not a common or frequent usufruct because:
1) natural resources (including forest or 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. (See Sec. 47, Revised
Administrative Code).
Rules
1) must bear in mind that he is not the owner, and
therefore, in the exercise of the diligence in caring
for the property
2)
GR: The usufructuary cannot cut down trees unless it
be to restore or improve some of the things in
usufruct, and in such case shall first inform the owner
of the necessity for the work.
XPNs:
 The usufructuary may cut trees on the land as
 the owner was in the habit of doing or
 in accordance with the custom of the
place, as to the manner, amount and
season.
 The usufructuary may make the necessary
thinnings in order that the remaining trees may
properly grow in nurseries
XPN of XPN: If it prejudices the preservation of the
land
3) cannot alienate the trees (for the trees are not
considered fruits) unless he is permitted, expressly
or impliedly by the owner
Article 578
The usufructuary of an action to recover real
property or a real right, or any movable property, has
the right to bring the action and to oblige the owner
thereof to give him the authority for this purpose
and to furnish him whatever proof he may have. If
in consequence of the enforcement of the action he
acquires the thing claimed, the usufruct shall be
limited to the fruits, the dominion remaining with
the owner. (486)
Usufruct over an action to recover
1) real property
2) personal property
3) real right over a real or personal property
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What the usufructuary can demand
1) authority to bring the action (usually a special
power of attorney).
2) proofs needed for a recovery
Institution of the action
1) If the purpose is the recovery of the property
or right, he is still required under Art 578 to
obtain the naked owner’s authority
2) 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.
Effect of judgment of recovery
1) its naked ownership belongs to the OWNER
2) its usufruct belongs to the USUFRUCTUARY
Article 579
The usufructuary may make on the property held in
usufruct such useful improvements or expenses for
mere pleasure as he may deem proper, provided he
does not alter its form or substance; but he shall have
no right to be indemnified therefor. He may,
however, remove such improvements, should it be
possible to do so without damage to the property.
(487)
Useful and ornamental improvements
The usufructuary has the RIGHT (not the duty) to
make:
 useful improvements;
 luxurious improvements (for mere pleasure).
Provided,
 He must not alter the form or substance of
the property
 He is not entitled to a refund (otherwise he
might improve the naked owner out of his
property)
o either remove the improvements if no
substantial damage to the property in
usufruct is caused (Art 579); or
o set off (compensate) the
improvements against damages for
which he may be liable. (Art 580)
Registration of improvements
Improvements made by a usufructuary belong to him,
and may therefore be registered, not independently,
but in the registration proceedings of the land held
in usufruct. The purpose of the registration is to
protect him against third persons, for while he cannot
obtain a refund therefor, still he may remove them or
set them off against damages chargeable to him.
Usufructuary and possessor in good faith
Usufructuary Possessor in good
faith
Property | VENTEROSO
a usufructuary is entitled a possessor in good faith
to a refund for useful is entitled to a refund for
improvements useful improvements
Article 580
The usufructuary may set off the improvements he
may have made on the property against any damage
to the same. (488)
Right to set-off improvements
1) If damage exceeds the value of the
improvements, usufructuary is still liable for
the difference
2) If the value of the improvements exceeds the
damage, the difference does not go to the
usufructuary, but accrues instead in the
absence of a contrary stipulation in favor of
the naked owner, otherwise, it is as if the
usufructuary would be entitled to a partial
refund in cash.
Requisites before set-off can be made
1) The damage must have been caused by the
usufructuary.
2) The improvements must have augmented
the value of property.
Article 581
The owner of property the usufruct of which is held
by another, may alienate it, but he cannot alter its
form or substance, or do anything thereon which
may be prejudicial to the usufructuary. (489)
Alienation by the naked owner
The naked owner retains the right to alienate the
property but
1) he cannot alter its form or substance; or
2) or do anything prejudicial to the usufructuary
Rules as to a purchaser of a property with usufruct
1) If registered or known - A purchaser of the
property must respect the usufruct in case it is
registered or known to him
2) If not registered or known – The purchaser
can oust the usufructuary, who can then look
to the naked owner for damages
Rule in case of succession
If the naked owner bequeathes (if personal property)
or devises (if real property) to another through a will,
the legatee or devisee should respect the usufruct.
Double sale by naked owner
The naked owner is ordinarily not allowed to sell the
usufruct to another after having sold it first to the
usufructuary; but if he does so, Art. 1544 relating to a
double sale applies.
Other rights of the naked owner
1) construct any works; and
2) make any improvements; or
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3) make new plantings thereon if it be rural BUT
always, such acts must not cause:
 a decrease in the value of the usufruct;
or
 prejudice the right of the usufructuary.
(Art 595).
Article 582
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. (490)
Usufructuary of a part of common property
A co-owner may give the usufruct of his share to
another, even without the consent of the others, unless
personal considerations are present. (Art 493)
Rights of the usufructuary
All the rights of the owner in
1) administration or management
2) collection of fruits or interest
Effect of the partition
1) If there be a partition, the usufructuary
continues to have the usufruct of the part
allotted to the co-owner concerned. (Art 582).
2) The naked owner must respect the usufruct
CHAPTER 3
Obligations of the Usufructuary
The following are the obligations of the
usufructuary and the naked owner
1) Before the usufruct
2) During the usufruct
3) After the usufruct
Article 583
The usufructuary, before entering upon the
enjoyment of the property, is obliged:
(1) To make, after notice to the owner or his
legitimate representative, an inventory of all the
property, which shall contain an appraisal of the
movables and a description of the condition of the
immovables;
(2) To give security, binding himself to fulfill the
obligations imposed upon him in accordance with
this Chapter. (491)
Article 584
The provisions of No. 2 of the preceding article shall
not apply to the donor who has reserved the
usufruct of the property donated, or to the parents
who are usufructuaries of their children's property,
except when the parents contract a second marriage.
(492a)
Property | VENTEROSO
Article 585
The usufructuary, whatever may be the title of the
usufruct, may be excused from the obligation of
making an inventory or of giving security, when no
one will be injured thereby. (493)
Obligations before the usufruct
1) To make, after notice to the owner or his
legitimate representative, an inventory of all the
property, which shall contain an appraisal of
the movables and a description of the
condition of the immovables;
(INVENTORY)
2) To give security, binding himself to fulfill the
obligations imposed upon him in accordance
with this Chapter. (SECURITY)
These obligations are not necessary however before
the right to the usufruct begins; they are merely
necessary before physical possession and
enjoyment of the property can be had. The owner
may, if he so prefers, until the usufructuary gives
security or is excused from so doing, retain in his
possession the property in usufruct as
administrator, subject to the obligation to deliver
to the usufructuary the net proceeds thereof, after
deducting the sums which may be agreed upon or
judicially allowed him for such administration. (Art
586)
Requirements for making the inventory
1) The owner (or his legitimate representative)
must be previously notified.
2) The condition of the immovables must be
described.
3) The movables must be appraised in view of
easy deterioration or loss
4) No form is required except that when there are
real properties, Art 1358 demands a public
instrument to affect third parties
5) Expenses are to be borne by the usufructuary,
since the duty is his.
6) The effect of not making an inventory is the
same as when the security is not given
When inventory is not required
1) When no one will be injured thereby; (Art 585)
 as in the case of usufruct over a
periodical pension or incorporeal right
2) In case of waiver by the naked owner or the
law; or
3) or when there is a stipulation in a will or
contract.
Giving of security
Purpose: To insure faithful compliance of the duties
of the usufructuary
Form: The law does not specify what kind of security
should be given; any kind is allowed.
When security is not required
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1) When no one will be injured thereby (Art
585)
 The law says “may,” therefore the
usufructuary is not always excused, the
exemption being dependent on the
naked owner.
 the grant may be made by somebody
else authorized by said naked owner
2) When there is waiver by the naked owner, or
there is a stipulation either in a will or by
contract.
3) When the usufructuary is the donor of the
property who has reserved the usufruct (Art
584)
 Also applies to a remitter in a remission
as this is also gratutitous
4) When there is a parental usufruct (Art 584)
Art. 226. The property of the unemancipated child
earned or acquired with his work or industry or by
onerous or gratuitous title shall belong to the child
in ownership and shall be devoted exclusively to the
latter’s support and education, unless the title or
transfer provides otherwise.
The right of the parents over the fruits and
income of the child’s property shall be limited
primarily to the child’s support and secondarily
to the collective daily needs of the family. (321a,
323a)
XPN:
1) when the parents contract a second or
subsequent marriage
2) Where the market value of the property or
the annual income of the child exceeds
P50,000 (Art 225) – not as a usufructuary
but as a guardian
Art. 225. The father and the mother shall
jointly exercise legal guardianship over the
property of the unemancipated common
child without the necessity of a court
appointment. In case of disagreement, the
father’s decision shall prevail, unless there is
a judicial order to the contrary.
Where the market value of the property
or the annual income of the child
exceeds P50,000, the parent concerned
shall be required to furnish a bond in such
amount as the court may determine, but
not less than ten per centum (10%) of the
value of the property or annual income, to
guarantee the performance of the
obligations prescribed for general guardians.
xxx
5) When there is a caucion juratoria (Art 587)
 This is available only under the
conditions prescribed in the article
Property | VENTEROSO
Article 586
Should the usufructuary fail to give security in the
cases in which he is bound to give it, the owner may
demand that the immovables be placed under
administration, that the movables be sold, that the
public bonds, instruments of credit payable to order
or to bearer be converted into registered certificates
or deposited in a bank or public institution, and that
the capital or sums in cash and the proceeds of the
sale of the movable property be invested in safe
securities.
The interest on the proceeds of the sale of the
movables and that on public securities and bonds,
and the proceeds of the property placed under
administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until
the usufructuary gives security or is excused from so
doing, retain in his possession the property in
usufruct as administrator, subject to the obligation
to deliver to the usufructuary the net proceeds
thereof, after deducting the sums which may be
agreed upon or judicially allowed him for such
administration. (494)
Effects of failure to give security
On the rights of the naked owner
1) He may deliver the property to the
usufructuary but even if delivery is made, the
naked owner may still later on demand the
needed security;
2) The naked owner may choose retention of the
property as administrator; or
 subject to the obligation to deliver to
the usufructuary the net proceeds
thereof, after deducting the sums
which may be agreed upon or judicially
allowed him for such administration
3) The naked owner may demand
 receivership of administration by
another of the real property
 the movables be sold
o he may want to retain some of
them for their artistic worth or
sentimental value, in which
case, he may demand their
delivery to him provided he
(naked owner) gives security
for the payment of legal
interest on their appraised
value
 that the public bonds, instruments of
credit payable to order or to bearer be
converted into registered certificates or
deposited in a bank or public
institution; and
 that the capital or sums in cash and the
proceeds of the sale of the movable
property be invested in safe securities.
 The interest on the proceeds of the
sale of the movables and that on public
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securities and bonds, and the proceeds
of the property placed under
administration, shall belong to the
usufructuary.
On the rights of the usufructuary
1) The usufructuary cannot possess the property
till he gives the security.
2) The usufructuary cannot administer the
property, hence, he cannot execute a lease
thereon.
3) The usufructuary cannot collect credits that
have matured, nor invest them unless the Court
or the naked owner consents. (Art 599)
4) The usufructuary can alienate his right to the
usufruct
Article 587
If the usufructuary who has not given security
claims, by virtue of a promise under oath, the
delivery of the furniture necessary for his use, and
that he and his family be allowed to live in a house
included in the usufruct, the court may grant this
petition, after due consideration of the facts of the
case.
The same rule shall be observed with respect to
implements, tools and other movable property
necessary for an industry or vocation in which he is
engaged.
If the owner does not wish that certain articles be
sold because of their artistic worth or because they
have a sentimental value, he may demand their
delivery to him upon his giving security for the
payment of the legal interest on their appraised
value. (495)
Caucion juratoria
A sworn duty to take good care of the property and
return same at the end of the usufruct. It takes the
place of the bond or security and is based on
necessity and humanity as when a poor family acquires
by inheritance, the usufruct of a badly needed house.
Requisites
1) proper court petition
2) necessity for delivery of furniture, implements
or house included in the usufruct
3) approval of the court
4) sworn promise.
Restriction
1) He cannot sell the property
2) He cannot lease the property
Applicability
Art 587 applies only if he is required but cannot
afford to give the security.
Article 588
Property | VENTEROSO
After the security has been given by the
usufructuary, he shall have a right to all the proceeds
and benefits from the day on which, in accordance
with the title constituting the usufruct, he should
have commenced to receive them. (496)
Retroactive effect of security
Once the security is given, there is retroactive effect as
to all the proceeds and benefits from the day on which,
in accordance with the title constituting the usufruct,
he should have commenced to receive.
Article 589
The usufructuary shall take care of the things given
in usufruct as a good father of a family. (497)
Obligations during the life of the usufruct
General obligations
1) Preserve its substance and form
2) Observe the diligence of a good father of the
family
Specific obligations
1) Make the ordinary repairs on the property (Art
592)
2) Pay the annual charges and taxes which are
imposed in the fruits (Art 596)
3) Notify the owner of the need of urgent
extraordinary repairs (Art 593)
4) Pay the expenses, costs and liabilities for suits
involving the usufruct (Art 602)
5) Notify the owner of any act of a third person
that may be prejudicial to the rights of the
owner (Art 601)
Rules as to use
1) Although care of a pater familias is required (Art
589), still a usufruct is not extinguished by bad
use.
 Bad use, if owner suffers considerable
injury, entitles him to demand its
administration without prejudice to the
usufruct. (Art 610)
2) In the exercise of prudent care, the
usufructuary is required to
 Make ORDINARY repairs (Art 592)
and
 Notify the naked owner of urgency of
EXTRAORDINARY REPAIRS
(Art 593), and
 Notify of any acts which may prove
detrimental to ownership (Art 610).
 The usufructuary answers for damage
caused by the fault or negligence of his
alienee, grantee, agent, or lessee (Art
590)
Article 590
A usufructuary who alienates or leases his right of
usufruct shall answer for any damage which the
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things in usufruct may suffer through the fault or
negligence of the person who substitutes him. (498)
Liability of the usufructuary for acts of the
substitute
1) The usufructuary is made liable for the acts of
the substitute if there is fault, negligence, or
even willful deceit.
 while the substitute answers to the
usufructuary, the usufructuary answers
to the naked owner.
2) Even when there is a sub-usufructuary, it is still
the usufructuary who answers to the naked
owner for ordinary repairs, taxes on the fruits,
etc.
Article 591
If the usufruct be constituted on a flock or herd of
livestock, the usufructuary shall be obliged to replace
with the young thereof the animals that die each year
from natural causes, or are lost due to the rapacity of
beasts of prey.
If the animals on which the usufruct is constituted
should all perish, without the fault of the
usufructuary, on account of some contagious disease
or any other uncommon event, the usufructuary
shall fulfill his obligation by delivering to the owner
the remains which may have been saved from the
misfortune.
Should the herd or flock perish in part, also by
accident and without the fault of the usufructuary,
the usufruct shall continue on the part saved.
Should the usufruct be on sterile animals, it shall be
considered, with respect to its effects, as though
constituted on fungible things. (499a)
Usufruct on livestock
The article applies only when the usufruct is on a flock
and herd of livestock.
Rules in case of fruitful or productive livestock
There is obligation to replace if:
1) some animals die from natural causes;
2) some animals are lost due to rapacity of beasts
of prey;
There is no obligation to replace if:
1) there is a total loss of the animals because of
some unexpected or unnatural loss, provided
no fault on the part of the usufructuary
 whatever remains must be delivered to
the owner
2) there is partial loss under the same condition
 usufruct continues on the remainder
Rule in case of sterile animals
Since there are no young (broods) here, the rule of
usufruct over fungibles applies. (Art 574)
Article 592
Property | VENTEROSO
The usufructuary is obliged to make the ordinary
repairs needed by the thing given in usufruct.
By 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. Should the usufructuary fail to make
them after demand by the owner, the latter may
make them at the expense of the usufructuary. (500)
Conditions in order to warrant ordinary repairs
1) they are required by normal or natural use
2) They are needed for preservation
3) They must have occurred during the usufruct
4) They must have happened with or without the
fault of the usufructuary
Q: Can usufructuary exempt himself from the duty
to make or pay for the necessary repairs by
renouncing the usufruct?
A:
1) If no fault – Yes, but must surrender the fruits
2) If with fault – No, he would still be liable for
damages.
Remedy if usufructuary does not make the
necessary expenses
Should the usufructuary fail to make them after
demand by the owner, the latter may make them at the
expense of the usufructuary.
Exception
When the usufruct includes things which, without
being consumed, gradually deteriorate through wear
and tear without endangering the preservation of the
thing. (Art 573)
Article 593
Extraordinary repairs shall be at the expense of the
owner. The usufructuary is obliged to notify the
owner when the need for such repairs is urgent.
(501)
Extraordinary repairs
1) Shall be at the expense of the owner
2) Notify the owner when the need for such
repairs is urgent
Article 594
If the owner should make the extraordinary repairs,
he shall have a right to demand of the usufructuary
the legal interest on the amount expended for the
time that the usufruct lasts.
Should he not make them when they are
indispensable for the preservation of the thing, the
usufructuary may make them; but he shall have a
right to demand of the owner, at the termination of
the usufruct, the increase in value which the
immovable may have acquired by reason of the
repairs. (502a)
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Kinds of extraordinary repairs 1) the usufructuary profits by said increase

1) Those caused by natural use but not needed for 2) the usufructuary does not have to pay legal
preservation interest on the improvement (since the act is
2) Those caused by abnormal or exceptional voluntary and not an extraordinary repair)
circumstances and needed for preservation
3) Those caused by abnormal or exceptional Article 596
circumstances but not needed for preservation The payment of annual charges and taxes and of
those considered as a lien on the fruits, shall be at
Kinds Who should pay? the expense of the usufructuary for all the time that
Those caused by natural Naked owner; the usufruct lasts. (504)
use but not needed for
preservation he is not required by law Kinds of charges and taxes; who bears
nor can be compelled by 1) Those considered as lien on the fruits -
the usufructuary USUFRUCTUARY
Those caused by Naked owner but the 2) Those which may be imposed directly on
abnormal or exceptional usufructuary may capital – NAKED OWNER
circumstances and make them
needed for preservation Charges and taxes considered as liens
1) Usufructuary 1) the annual charges (on the fruits)
must notify the
 ordinary repairs
owner (Art 594)
2) He has the right  necessary cultivation expenses
to get the 2) the annual taxes on the fruits
increase in value
(Art 594) and It is well-settled that a real property tax, being a
retention until burden upon the capital, should be paid by the
paid at the owner of the land, and not by a usufructuary. (Board
termination of of Assessment v. Samar Mining)
the contract (Art
612) Article 597
Those caused by Naked owner The taxes which, during the usufruct, may be
abnormal or exceptional imposed directly on the capital, shall be at the
circumstances but not he is not required by law expense of the owner.
needed for preservation nor can be compelled by
the usufructuary; nor is If the latter has paid them, the usufructuary shall pay
the usufructuary allowed him the proper interest on the sums which may have
to make them been paid in that character; and, if the said sums have
been advanced by the usufructuary, he shall recover
Right to legal interest the amount thereof at the termination of the
The owner can demand from the usufructuary the legal usufruct. (505)
interest on the amount for the duration of the usufruct.
Rules on taxes imposed directly on capital
Article 595 1) If paid by naked owner, he can demand legal
The owner may construct any works and make any interest on the sum paid.
improvements of which the immovable in usufruct 2) If advanced in the meantime by the
is susceptible, or make new plantings thereon if it be usufructuary, he should be
rural, provided that such acts do not cause a  Reimbursed the amount paid without
diminution in the value of the usufruct or prejudice legal interest
the right of the usufructuary. (503)  Entitled to retention

Constructions, improvements and plantings by Article 598

the naked owner
Although the property is in the possession of the
usufructuary, the naked owner may still —
1) construct works
2) make improvements
3) make new plantings (if rural)
Provided,
1) the value of the usufruct is not diminished
2) or the right of the usufructuary is not
prejudiced.
Effect of increase in the value of the usufruct
If the usufruct be constituted on the whole of a
patrimony, and if at the time of its constitution the
owner has debts, the provisions of articles 758 and
759 relating to donations shall be applied, both with
respect to the maintenance of the usufruct and to the
obligation of the usufructuary to pay such debts.
The same rule shall be applied in case the owner is
obliged, at the time the usufruct is constituted, to
make periodical payments, even if there should be
no known capital. (506)
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Article 758. When the donation imposes upon the
donee the obligation to pay the debts of the donor,
if the clause does not contain any declaration to the
contrary, the former is understood to be liable to pay
only the debts which appear to have been previously
contracted. In no case shall the donee be responsible
for the debts exceeding the value of the property
donated, unless a contrary intention clearly appears.
(642a)
Article 759. There being no stipulation regarding the
payment of debts, the donee shall be responsible
therefor only when the donation has been made in
fraud of creditors.
The donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to
the donation. (643)
Rules
1) No stipulation as to payment of debts - The
donee shall be responsible therefor only when
the donation has been made in fraud of
creditors (Art 759)
2) With stipulation as to payment of debts - liable
to pay only the debts which appear to have
been previously contracted.
 In no case shall the donee be
responsible for debts exceeding the
value of the property donated, unless a
contrary intention clearly appears. (Art
758)
XPN: The clause contains a declaration to the
contrary
Applicability
1) If the usufruct is constituted on the whole of a
patrimony
2) The naked owner
 Has debts; or
 Is obliged to make periodical payments
3) Art 598 also applies if a person donates
everything but reserves to him the usufruct
thereof
Article 599
The usufructuary may claim any matured credits
which form a part of the usufruct if he has given or
gives the proper security. If he has been excused
from giving security or has not been able to give it,
or if that given is not sufficient, he shall need the
authorization of the owner, or of the court in default
thereof, to collect such credits.
The usufructuary who has given security may use the
capital he has collected in any manner he may deem
proper. The usufructuary who has not given security
shall invest the said capital at interest upon
agreement with the owner; in default of such
agreement, with judicial authorization; and, in every
case, with security sufficient to preserve the integrity
of the capital in usufruct. (507)
Property | VENTEROSO
Rules on usufruct of a matured credits
1) If usufructuary has given security, collection
and investment can be done without the
approval of the court or of the naked owner.
2) If the usufructuary has
 Not given security
 He is exempted
 There was only a caucion juratoria
- collection and investment can be done only
with the
1) authorization of the owner
2) approval of the court
Ownership of the credit collected
If the credit is collected, same belongs to the naked
owner, but the usufructuary gets its usufruct.
Failure to collect due to negligence
The usufructuary shall be liable if the credit that has
matured (due and demandable) is not collected because
of his fault or negligence.
Article 600
The usufructuary of a mortgaged immovable shall
not be obliged to pay the debt for the security of
which the mortgage was constituted.
Should the immovable be attached or sold judicially
for the payment of the debt, the owner shall be liable
to the usufructuary for whatever the latter may lose
by reason thereof. (509)
Usufruct of mortgaged immovable (Particular
usufruct)
1) The usufructuary of a mortgaged immovable
shall not be obliged to pay the debt for the
security of which the mortgage was
constituted.
2) Should the immovable be attached or sold
judicially for the payment of the debt, the
owner shall be liable to the usufructuary for
whatever the latter may lose by reason
thereof.
How the liability of the naked owner be
extinguished
1) by constituting a usufruct over an equivalent
estate; or
2) by payment of a periodical pension
equivalent to the loss; or
3) in any other similar way
Mortgaging of the usufruct itself
Since usufruct is a real right, the usufruct (as
distinguished from the property itself) may be
mortgaged, not by the naked owner, but by the
usufructuary. In such a case, it is the usufructuary who
should pay his own debt.
Pledge of a movable
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It is believed that although Art. 600 speaks only of a 6) By the termination of the right of the person
mortgaged immovable, it can also apply, by analogy, to constituting the usufruct;
a pledged movable, provided that the movable is in the 7) By prescription. (513a)
usufructuary’s possession.
Article 1231. xxx Other causes of extinguishment of
Article 601 obligations, such as annulment, rescission,
The usufructuary shall be obliged to notify the fulfillment of a resolutory condition, and
owner of any act of a third person, of which he may prescription, are governed elsewhere in this Code.
have knowledge, that may be prejudicial to the rights
of ownership, and he shall be liable should he not do Extinguishment
so, for damages, as if they had been caused through GR: Death of the usufructuary ends the usufruct
his own fault. (511) XPNs:
1) In the case of multiple usufructs [here it ends
When notification is required on the death of the last survivor.
1) If a third party commits acts prejudicial to 2) In case there is a period fixed based on the
“the rights of ownership number of years that would elapse before a
2) If urgent repairs are needed (Art 593) third person would reach a certain age
3) If an inventory (at the beginning of the XPN: the period was expressly granted only in
usufruct) is to be made. (Art 583) consideration of the existence of such person,
in which case it ends at the death of said person
When notification is Effect of non- (Art 606)
required notification 3) In case the contrary intention clearly appears
If a third party commits The usufructuary is 4) Death of the naked owner
acts prejudicial to “the liable for damages, as if
rights of ownership (Art they had been caused The utmost period for which a usufruct can endure,
601) through his own fault. if constituted in favor of a natural person is the
If urgent repairs are The usufructuary cannot lifetime of the usufructuary. (Eleizegue v. Lawn
needed (Art 593) even make the Tennis Club)
extraordinary repairs
needed.
Renunciation under the law refers to a voluntary
If an inventory (at the The inventory can go surrender of the rights of the usufructuary, made by
beginning of the on, but the naked owner him with the intent to so surrender them. In this
usufruct) is to be made. may later point out case, there was a claim of ownership and there was
(Art 583) discrepancies and also a forced surrender. Hence, there is no
omissions in the renunciation or waiver. (City of Manila v. Monte
inventory. de Piedad)
Article 602 Other causes for extinguishment
The expenses, costs and liabilities in suits brought
1) Annulment
with regard to the usufruct shall be borne by the
usufructuary. (512) 2) Rescission
3) Mutual withdrawal
Applicability 4) legal causes ending legal usufruct, as when
This article particularly applies only when the attainment of the age of majority extinguishes
usufructuary has LOST the case parental usufruct.
 Non-fulfillment of a suspensive
condition does not extinguish usufruct,
CHAPTER 4 for the simple reason that the usufruct
never came into existence
Extinguishment of Usufruct
Article 604
If the thing given in usufruct should be lost only in
Article 603
part, the right shall continue on the remaining part.
Usufruct is extinguished:
(514)
1) By the death of the usufructuary, unless a
contrary intention clearly appears; Total Loss of the Thing in Usufruct
2) By the expiration of the period for which it 1) Total loss ends the usufruct, but not partial
was constituted, or by the fulfillment of any loss, for in the latter case, the usufruct,
resolutory condition provided in the title continues on the remaining part. (Art 604)
creating the usufruct; 2) For total loss of a building (whether or not the
3) By merger of the usufruct and ownership in land is included in the usufruct; and whether or
the same person; not the building has been insured). (Arts. 607-
4) By renunciation of the usufructuary; 608).
5) By the total loss of the thing in usufruct;
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3) For legal loss (as in the case of expropriation). right to occupy the land and to make use of the
(Art 609). materials, being obliged to pay to the usufructuary,
during the continuance of the usufruct, the interest
Article 605 upon the sum equivalent to the value of the land and
Usufruct cannot be constituted in favor of a town, of the materials. (517)
corporation, or association for more than fifty years.
If it has been constituted, and before the expiration Rule when the
of such period the town is abandoned, or the building is destroyed
corporation or association is dissolved, the usufruct Usufruct constituted The usufruct on the
shall be extinguished by reason thereof. (515a both on the building building is ended, but
and the land the usufruct on the land
Usufruct in favor of entities continues.
Under Sec. 11 of the Corporation Code, 50 years are
allowed for the existence of a private corporation. In The usufructuary
the case of towns or municipal corporations, a period prevails in case the
naked owner wants to
longer than 50 years may militate against the public
rebuild
policy which prohibits the perpetual entailment of
Usufruct constituted The usufruct on the
property. only on the building building ends, but the
usufructuary can still
Exception make use of whatever
Since trusts are different from usufructs, Art 605 does materials of the house
not apply to the former such as a trust for the remain.
establishment of a high school with the governor as
trustee and the townspeople the beneficiary. Said trust The naked owner
can continue despite the restrictions in Art. 605. prevails in case the
naked owner wants to
Article 606 rebuild
A usufruct granted for the time that may elapse Usufruct is constituted The usufructuary shall
before a third person attains a certain age, shall on immovable property have a right to make use
subsist for the number of years specified, even if the of which a building of the land and the
third person should die before the period expires, forms part materials.
unless such usufruct has been expressly granted only
in consideration of the existence of such person. Person at fault
(516) Should the destruction be due to the fault of the naked
owner, usufructuary, or a third person, the person at
Example (Paras) fault must indemnify.
A gave B his land in usufruct until C becomes 40 years
old. A constituted the usufruct when C was only 20 Article 608
years old. This means that the usufruct should last for If the usufructuary shares with the owner the
20 years, even if C dies before attaining the age of 40. insurance of the tenement given in usufruct, the
If therefore C dies at the age of 30, the usufruct in B’s former shall, in case of loss, continue in the
favor generally continues. enjoyment of the new building, should one be
constructed, or shall receive the interest on the
insurance indemnity if the owner does not wish to
Exception
rebuild.
The period was expressly granted only in consideration
of the existence of such person, in which case it ends Should the usufructuary have refused to contribute
at the death of said person (Art 606). If in the example to the insurance, the owner insuring the tenement
given, B was made the usufructuary only because he alone, the latter shall receive the full amount of the
had to support C, it follows that the usufruct was insurance indemnity in case of loss, saving always the
expressly constituted only in consideration of the right granted to the usufructuary in the preceding
existence of C. Thus, on C’s death, the usufruct ends article. (518a)

Article 607 Payment of insurance

If the usufruct is constituted on immovable property both the usufructuary 1) If the owner
of which a building forms part, and the latter should and the naked owner constructs a new
be destroyed in any manner whatsoever, the share building - the
usufructuary shall have a right to make use of the usufruct continues
land and the materials. on the new building.
2) If the owner does
The same rule shall be applied if the usufruct is not construct a new
constituted on a building only and the same should building - the naked
be destroyed. But in such a case, if the owner should owner gets the
wish to construct another building, he shall have a insurance indemnity
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but should pay the 2) Naked owner can

interest (fruits) demand delivery to
and administration
thereon to the by him
usufructuary. 3) The naked owner
it is only the naked The naked owner gets will be obliged to
owner who pays because the whole indemnity pay the net proceeds
the usufructuary refused to usufructuary after
deducting the
Without prejudice to expenses and the
Article 607 compensation
Usufructuary alone pays Insurance goes to the which may be
the insurance premium usufructuary alone allowed him for its
administration

Article 609
Should the thing in usufruct be expropriated for Intervention by the Court
public use, the owner shall be obliged either to Court will determine whether or not there is
replace it with another thing of the same value and considerable injury to the naked owner.
of similar conditions, or to pay the usufructuary the
legal interest on the amount of the indemnity for the Article 611
whole period of the usufruct. If the owner chooses A usufruct constituted in favor of several persons
the latter alternative, he shall give security for the living at the time of its constitution shall not be
payment of the interest. (519) extinguished until the death of the last survivor.
(521)
Rules in case of expropriation
1) the owner shall be obliged either to replace it Rule in multiple usufruct
with another thing of the same value and of It is the death of the last survivor which, among other
similar condition causes, terminates the usufruct.
2) pay the usufructuary the legal interest on the
amount of the indemnity for the whole period Article 612
of the usufruct. Upon the termination of the usufruct, the thing in
 If the owner chooses the latter usufruct shall be delivered to the owner, without
alternative, he shall give security for the prejudice to the right of retention pertaining to the
payment of the interest. usufructuary or his heirs for taxes and extraordinary
expenses which should be reimbursed. After the
Applicable law or rule delivery has been made, the security or mortgage
Only the owner was Art 609 shall be cancelled. (522a)
given indemnity
Both the naked owner Each owns the Rights and Obligations at the Termination of the
and the usufructuary indemnity given to him, Usufruct
were separately given the usufruct being totally On the Part of the Usufructuary
indemnity extinguished 1) must RETURN the property to the naked
Usufructuary alone was He must give it to the owner, but he has the rights
given the indemnity, naked owner and compel 2) to RETAIN the property till he is reimbursed
the latter to return either for TAXES ON THE CAPITAL (which had
the interest or to replace been advanced by him) [Art 597 (2)] and
the property. He may indispensable EXTRAORDINARY
even deduct the interest REPAIRS or EXPENSES (insofar as there has
himself, if the naked
been an increase in the value).
owner fails to object.
3) to remove removable improvements (Art 579)
or
Article 610
4) set them off against damages he has caused.
A usufruct is not extinguished by bad use of the
thing in usufruct; but if the abuse should cause (Art 580).
considerable injury to the owner, the latter may
demand that the thing be delivered to him, binding On the Part of the Naked Owner
himself to pay annually to the usufructuary the net 1) must cancel the security or mortgage (provided
proceeds of the same, after deducting the expenses the usufructuary has complied with all his
and the compensation which may be allowed him for obligations) (Art 612).
its administration. (520) 2) must in case of rural leases, respect leases made
by the usufructuary, till the end of the
Bad use Effect agricultural year. (Art 572).
Does not cause considerable Usufruct continues; naked 3) make reimbursements to the usufructuary in
injury to the naked owner owner cannot demand
administration by himself. the proper cases. (Art 597 and 594)
Causes considerable injury to 1) Usufruct continues
the naked owner
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA

TITLE VII possession over the

EASEMENTS OF SERVITUDES property
Right of use for a Right of use for the
CHAPTER 1 special and limited period fixed in the lease
Easements in General purpose terms
An incorporeal interest Gives possessory rights
SECTION 1 on the land, which is
Different Kinds of Easements non-possessory in
character, but grants no
title thereto.
Article 613
An easement or servitude is an encumbrance
Easement Usufruct
imposed upon an immovable for the benefit of
another immovable belonging to a different owner. It is a limitation to the owner’s right to use or jus
utendi
The immovable in favor of which the easement is The owners retain their ownership and power to
established is called the dominant estate; that which alienate
is subject thereto, the servient estate. (530) Acquired either by Acquired either by law,
virtue of a title or by will of the parties or by
Article 614 prescription of ten prescription (Art 563)
Servitudes may also be established for the benefit of years. (Art 620, 622)
a community, or of one or more persons to whom Incorporeal interest to Use and fruits
the encumbered estate does not belong. (531) use but grants no title
Two different One immovable and
Easement or servitude - an encumbrance imposed immovables and two one naked owner
owners (praedial)
upon an immovable for the benefit of another
Constituted over a Constituted over an
immovable belonging to a different owner. It may also
corporeal immovable immovable, movable or
be established for right
1) the benefit of a community, or Grants only mere Grants physical
2) of one or more persons to whom the material possession and possession through
encumbered estate does not belong. not an adverse one furnishing a security
(Bogo-Medellin v. CA)
 The New Civil Code defines easement An encumbrance and a A right
or servitude (“servitus”) from its right
passive aspect of being an
encumbrance. Characteristics
 Encumbrance – passive, right - active 1) It is a real right
 The other aspect of easement or  Easement is a real right since the right
servitude refers to the right of servitude is constituted on the thing itself and
(jus servitutes), or the right which not upon its owner or its occupant.
corresponds to the burden imposed.  The right avails against every person
whomsoever, who may happen, for the
It is a real right, constituted on the corporeal time being, to have any interest in the
immovable property of another, by virtue of which thing, or, as adverse possessor, to
the owner has to refrain from doing, or must allow exercise a right of dominion over it.
someone to do, something on his property, for 2) It is constituted over an immovable
the benefit of another thing or person. It exists only The term “immovable” in Article 613 should
when the servient and dominant estates belong to be understood in its ordinary or vulgar
two different owners. It gives the holder of the connotation — as referring to those which are,
easement an incorporeal interest on the land but by their nature, cannot be moved from one
grants no title thereto. Therefore, an
place to another — such as lands, buildings and
acknowledgment of the easement is an
admission that the property belongs to another. roads. Hence, it is legally impossible to impose
(Bogo-Medellin Milling Co., Inc. v. Court of an easement over another easement.
Appeals) 3) It is constituted over another’s property
 Jura in re aliena – enjoyed over another’s
Easement Servitude property
refers to the right refers to the burden  Operates as a limitation on the title of
enjoyed by one imposed upon the other. the owner of the servient estate,
specifically, his right to use (jus utendi).
Easement Lease  Nulli res sua servit - no man has a right of
an easement does not Gives its holder a right servitude in a thing of which he is the
give its holder a right of of possession over the owner. It is impossible to have an
property easement over one’s property.
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 An acknowledgement of easement is the servient estate or independently of the

an admission that the property belongs praedium serviens, for the latter’s ownership of any
to another use or advantage of the immovable or estate.
4) It is an encumbrance other, called the
The owner of the servient estate retains the dominant estate or
ownership of the portion on which the praedium dominans
easement is established, and may use the same The right of servitude The same is inseparable
resides in the estate from his person, and
in the manner as not to affect the exercise of
(praedium) itself and not necessarily ceases at his
the easement in the physical person death, unless there is a
who successively stipulation to the
Article 615 occupies or enjoys it contrary.
Easements may be continuous or discontinuous,
apparent or nonapparent. The right to personal servitude does not extend to
the successors-in-interest of the person to whom the
Continuous easements are those the use of which is right is granted. (Jabonete v. Monteverde)
or may be incessant, without the intervention of any
act of man.
As to source (Art 619)
Discontinuous easements are those which are used 1) Legal - are those which can be enforced by
at intervals and depend upon the acts of man. force of law and, therefore, may be established
even against the will of the owner of the
Apparent easements are those which are made servient estate.
known and are continually kept in view by external  Public legal easement
signs that reveal the use and enjoyment of the same.  Private legal easement

Nonapparent easements are those which show no Examples

external indication of their existence. (532)
Article 616
Easements are also positive or negative.
A positive easement is one which imposes upon the
owner of the servient estate the obligation of
allowing something to be done or of doing it
himself, and a negative easement, that which
prohibits the owner of the servient estate from doing
something which he could lawfully do if the
easement did not exist. (533)
Kinds of easements
As to recipient of the benefit (Art 613, 614)
1) Real
 Praedial servitude
 Art 613
 the encumbrance is imposed upon an
immovable for the benefit of another
immovable belonging to a different
owner.
2) Personal
 Art 614
 encumbrance imposed upon an
immovable for the “benefit of a
community, or of one or more
persons to whom the encumbered
estate does not belong”
 no owner of a tenement to speak of
and the easement pertains to persons
without a dominant estate, in this case,
the public at large
Real (praedial) Personal
Imposed upon one of Due, not to a thing, but
the two estates, called to a person,
 Easement relating to waters (Arts. 637-
648, NCC);
 Easement of right of way (Arts. 649-
657, NCC);
 Easement of party wall (Arts. 658-666,
NCC);
 Easement of light and view (Arts. 667-
673, NCC);
 Easement of drainage of buildings
(Arts. 674-676, NCC);
 Easement of distances (Arts. 677-681,
NCC);
 Easement of nuisance (Arts. 682-683,
NCC); and
 Easement of lateral and subjacent
support (Arts. 684-687, NCC).
2) Voluntary - that which is created by reason of
the will of the owner of the servient estate
 only the owner can constitute a
servitude over his property since it
operates as a limitation upon his title or
ownership.
*There are no judicial easements. The courts can only
declare its existence if in reality it exists by law or by
the will of the owners.
As to its exercise (Art 615, 616)
1) Continuous or discontinuous
 Continuous - if its use is, or may be,
incessant without the intervention of
any act of man
Ex. Easement of light and view,
easement of drainage
 Discontinuous - if it is used at intervals
and depends on the act of man
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Ex. Easement of right of way
2) Apparent or non-apparent
 Apparent - made known and are
continually kept in view by external
signs that reveal the use and enjoyment
of the same.
Example: road and window
 Non-apparent - are those which show
no external indication of their
existence.
 Example: easement of not building
beyond a certain height
3) Positive or negative
 Positive - one which imposes upon the
owner of the servient estate the
obligation of allowing something to
be done on his property (servitutes in
patendo)
 An easement may not consist,
however, in the right to demand that
the servient owner do something
(servitutes in faciendo).
 “not to interfere”
 Negative - when it prohibits the owner
of the servient estate from doing
something which he could lawfully do
if the easement did not exist (servitutes in
non faciendo)
Positive Negative
Right to exclude others No application of Article
from the enjoyment and 429
disposal under Art 429 is
guaranteed
Article 617
Easements are inseparable from the estate to which
they actively or passively belong. (534)
Article 618
Easements are indivisible. If the servient estate is
divided between two or more persons, the easement
is not modified, and each of them must bear it on
the part which corresponds to him.
If it is the dominant estate that is divided between
two or more persons, each of them may use the
easement in its entirety, without changing the place
of its use, or making it more burdensome in any
other way. (535)
Article 619
Easements are established either by law or by the will
of the owners. The former are called legal and the
latter voluntary easements. (536)
Characteristics of easements
1) it is inseparable from the estate to which it
actively or passively belongs; and
 it is said that the easement or servitude
is but an accessory to the tenement of
which it forms part
Property | VENTEROSO
Servitudes are merely accessories to the tenements
of which they form part. Although they are
possessed of a separate juridical existence, as mere
accessories, they cannot, however, be alienated from
the tenement, or mortgaged separately. It operates as
a limitation on the title of the owner of the servient
estate, specifi cally, his right to use (jus utendi) (Solid
Manila v. Bio Hong)
*There can be no merger in an easement since the
personality of ownership is vested in two persons.
Merger in easements requires full ownership of both
estates.
2) it is indivisible.
This is but a necessary consequence of the
principle of inseparability of the easement. As
a consequence, even if the servient and
dominant estates are divided between two or
more persons, the easement or the servitude
continues to attach to the estates originally
affected.
 Division of the servient estate – each
must bear on the part constituting to
them
 Division of the dominant estate – each
may use the easement in its entirety
SECTION 2
Modes of Acquiring Easements
Article 620
Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten
years. (537a)
Article 621
In order to acquire by prescription the easements
referred to in the preceding article, the time of
possession shall be computed thus: in positive
easements, from the day on which the owner of the
dominant estate, or the person who may have made
use of the easement, commenced to exercise it upon
the servient estate; and in negative easements, from
the day on which the owner of the dominant estate
forbade, by an instrument acknowledged before a
notary public, the owner of the servient estate, from
executing an act which would be lawful without the
easement. (538a)
Article 622
Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, may
be acquired only by virtue of a title. (539)
Article 623
The absence of a document or proof showing the
origin of an easement which cannot be acquired by
prescription may be cured by a deed of recognition
by the owner of the servient estate or by a final
judgment. (540a)
Article 624
The existence of an apparent sign of easement
between two estates, established or maintained by
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the owner of both, shall be considered, should either
of them be alienated, as a title in order that the
easement may continue actively and passively,
unless, at the time the ownership of the two estates
is divided, the contrary should be provided in the
title of conveyance of either of them, or the sign
aforesaid should be removed before the execution
of the deed. This provision shall also apply in case
of the division of a thing owned in common by two
or more persons. (541a)
Article 625
Upon the establishment of an easement, all the
rights necessary for its use are considered granted.
(542)
Article 626
The owner of the dominant estate cannot use the
easement except for the benefit of the immovable
originally contemplated. Neither can he exercise the
easement in any other manner than that previously
established. (n)
Apparent Non-apparent
Continuous By prescription By virtue of
of 10 years and title only
by virtue of
title
Discontinuous By virtue of By virtue of
title only title only
It is not the presence of apparent signs or physical
indications showing the existence of the easement,
but rather the manner of exercise thereof, that
categorizes such easement into continuous or
discontinuous. (Mercader v. Bardillas)
The water facility on a certain lot in a subdivision,
which is an encumbrance for the benefit of the
community, is continuous and apparent easement,
because it is used incessantly without human
intervention. Since the facility was continuously
used for more than 30 years as the residents’ sole
source of water, it was held that an easement of
water facility has already been acquired through
prescription. (Liwag v. Happy Glen Loop)
Acquisition through prescription (Art 621)
The commencement of the ten-year period of
prescription will depend on whether the easement is
positive or negative, as follows:
1) If the easement is positive, the 10-year period
is counted from the day on which the owner of
the dominant estate, or the person who may
have made use of the easement, commenced
to exercise it upon the servient estate; or
2) If the easement is negative, the 10-year period
is counted from the day on which the owner of
the dominant estate forbade, by an
instrument acknowledged before a notary
public, the owner of the servient estate, from
executing an act which would be lawful without
the easement.
Property | VENTEROSO
Easement of light and view
Rules
An easement of light and view may either be positive
or negative.
Positive –
1) if through a party wall
2) If through one’s own wall if the window is one
a balcony or projection extending over the
adjoining land
Negative – if through one’s own wall
XPN: Art 624
Article 668. The period of prescription for the
acquisition of an easement of light and view shall be
counted:
(1) From the time of the opening of the window,
if it is through a party wall; or
(2) From the time of the formal prohibition upon
the proprietor of the adjoining land or tenement, if
the window is through a wall on the dominant estate.
(n)
Article 669. When the distances in article 67
Proof of easement
The presumption is always against the existence of
an easement for “property is always presumed free
from any and all encumbrances.”
*proof of easement is not covered by the Statute of
Frauds*
1) Acquired through prescription - necessarily
there is no document evidencing its existence
and the same may only be established in a
judicial proceeding through
preponderance of evidence
2) Not acquired through prescription – if there
is no document evidencing the same, or such
document is no longer available for whatever
reason, the absence of such proof may be cured
by a deed of recognition by the owner of the
servient estate
 If denied, judicial proceeding
through preponderance of evidence
Title
Article 624 of the New Civil Code provides for
acquisition of easements by title through the operation
of law.
 The term “title” does not mean a
document, it refers to a juridical act
The existence of the doors and windows on the
northeastern side of the aforementioned house, is
equivalent to a title, for the visible and permanent
sign of an easement is the title that characterizes
its existence. (Gargantos v. Tan Yanon)
Requisites
1) that there exists an apparent sign of servitude
between two estates;
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2) that at the time of the establishment of such
sign, the ownership of the two estates resides
in one person;
3) that the sign of the easement be established by
the owner of both estates because the article
will not apply when the easement is established
by a person different from the owner;
4) that the ownership over the two estates is later
on divided, either by alienation or partition;
and
5) that at the time of division of ownership,
nothing is stated in the document of alienation
or partition contrary to the easement nor is the
sign of the easement removed before the
execution of the document.
Co-ownership
Article 624 also applies to a situation where the two
estates were previously under a state of co-ownership
but prior to partition there exist an apparent sign of
easement in one of the estates.
Exception
If the contrary should be provided in the title of
conveyance of either of them or the apparent sign
should be removed before the execution of the deed
An easement may be acquired by virtue of title
through
1) a deed of recognition by the owner of the
servient estate
2) a final judgment
3) an apparent sign between two estates
(Amor v. Tolentino)
Article 627
The owner of the dominant estate may make, at his
own expense, on the servient estate any works
necessary for the use and preservation of the
servitude, but without altering it or rendering it more
burdensome.
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.
(543a)
Article 628
Should there be several dominant estates, the
owners of all of them shall be obliged to contribute
to the expenses referred to in the preceding article,
in proportion to the benefits which each may derive
from the work. Any one who does not wish to
contribute may exempt himself by renouncing the
easement for the benefit of the others.
If the owner of the servient estate should make use
of the easement in any manner whatsoever, he shall
also be obliged to contribute to the expenses in the
proportion stated, saving an agreement to the
contrary. (544)
Article 629
Property | VENTEROSO
The owner of the servient estate cannot impair, in
any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally
assigned, or of the manner established for the use of
the easement, the same should become very
inconvenient to the owner of the servient estate, or
should prevent him from making any important
works, repairs or improvements thereon, it may be
changed at his expense, provided he offers another
place or manner equally convenient and in such a
way that no injury is caused thereby to the owner of
the dominant estate or to those who may have a right
to the use of the easement. (545)
Article 630
The owner of the servient estate retains the
ownership of the portion on which the easement is
established, and may use the same in such a manner
as not to affect the exercise of the easement. (n)
An easement consists in the limited use and enjoyment
of the property subjected to such encumbrance but
without possession. In other words, it gives the holder
of the easement an incorporeal interest on the property
but grants no title thereto. Hence, the owner of the
servient estate retains the ownership of the portion on
which the easement is established, and may use the
same in such a manner as not to affect the exercise of
the easement.
DOMINANT ESTATE
Rights
1) to exercise the easement and all necessary
rights for its use including accessory easement.
(Art 625)
2) to make on the servient estate all works
necessary for the use and preservation of the
servitude, BUT —
 this must be at his own expense
 he must NOTIFY the servient owner
 select convenient time and manner
 he must NOT alter the easement NOR
render it MORE BURDENSOME.
(Art 627).
3) to ask for a MANDATORY INJUNCTION
to prevent impairment or obstruction in the
exercise of the easement as when the owner of
the servient estate obstructs the right of way by
building a wall or fence.
4) to RENOUNCE totally (for an easement is
indivisible) the easement if he desires
exemption from contribution to expenses. (Art
628).
Obligations
1) He cannot alter the easement. (Art 627).
2) He cannot make it more burdensome. (Art.
627).
 Thus he cannot use the easement
except for movable originally
contemplated. (Art 626).
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 In the easement of right of way, he
cannot increase the agreed width of the
path, nor deposit soil or materials
outside of the boundaries agreed upon
(for these acts would be increasing the
burden), but he may allow OTHERS to
use the path (this really does NOT
increase the burden) except if the
contrary has been stipulated.
It is clear that the easement was established for the
benefit of all producers and of the corporation as it is
the intent of the milling contract. Since the easement is
a voluntary, apparent, continuous easement of way in
favor of the North Negros Sugar, it is contrary to the
nature of the contract that it is only limited to canes
produced by the servient estates since it is a well settled
rule that things serve their owner by reason of
ownership and not by reason of easement.
(Valderrama v. North Negros Sugar Co.)
3) If there are several dominant estates, each must
contribute to necessary repairs and expenses in
proportion to the BENEFITS received by each
estate (and not in proportion to the VALUE of
each estate). (In the absence of proof, we should
presume the benefi ts to be equal).
4) Regarding the repairs, it must be
 this must be at his own expense
 he must NOTIFY the servient owner
 select convenient time and manner (Art
627)
SERVIENT ESTATE
Rights
1) to retain ownership and possession of the
portion of his land affected by the easement
(Art 630) even if indemnity for the right is
given (as in the case of the easement of right of
way) (Art 649), unless the contrary has been
stipulated.
2) to make USE of the easement, unless deprived
by stipulation provided that the exercise of the
easement is not adversely affected (Art. 630)
and provided further that he contributes to the
expenses in proportion to BENEFITS
received, unless there is a contrary stipulation.
(Art 628, par 2)
What is involved here is an undue interference on
the property rights of a landowner to build a
concrete wall on his own property. It is a simple case
of a neighbor, petitioner Aneco, seeking to restrain
a landowner, respondent Landex, from fencing his
own land. (Aneco Realty v. Landex)
Pilar Development Corporation’s right of ownership
and possession has been limited by law with respect
to the 3-meter strip/zone along the banks of
Mahabang Ilog Creek. Dumadag, et. al. also don’t
have a better right to possess the subject portion of
Property | VENTEROSO
the land because they are occupying an area reserved
for public easement purposes. Similar to Pilar
Development Corporation, Dumadag, et. al. have no
right or title over it precisely because it is public land.
Likewise, we repeatedly held that squatters have no
possessory rights over the land intruded upon. The
length of time that they may have physically
occupied the land is immaterial; they are deemed to
have entered the same in bad faith, such that the
nature of their possession is presumed to have
retained the same character throughout their
occupancy. (Pilar vs. Dumadag)
3) to change the location of a very
inconvenient easement provided that an equally
convenient substitute is made, without injury to
the dominant estate. (Art 629, par 2).
Obligations
1) He cannot impair the use of the easement. (Art
629, par. 1).
2) He must contribute to the expenses in case he
uses the easement, unless there is a contrary
stipulation. (Art 628, par. 2).
3) In case of impairment, to restore conditions to
the status quo at his expense plus damages. (In
case of obstruction, as when he fences the
original right of way, and offers an
inconvenient substitute way, which is farther
and requires turning at a sharp angle, he may
be restrained by injunction).
4) To pay for the expenses incurred for the
change of location or form of the easement (in
the proper case). (Art 629, par. 2)
The owner of the dominant estate cannot violate
any of the following prescribed restrictions on
its rights on the servient estate, to wit:
1) it can only exercise rights necessary for the
use of the easement;
2) it cannot use the easement except for the
benefit of the immovable originally
contemplated;
3) it cannot exercise the easement in any other
manner than that previously established;
4) it cannot construct anything on it which is
not necessary for the use and preservation of
the easement;
5) it cannot alter or make the easement more
burdensome;
6) it must notify the servient estate owner of its
intention to make necessary works on the
servient estate;
7) it should choose the most convenient time
and manner to build said works so as to
cause the least convenience to the owner
of the servient estate. Any violation of the
above constitutes impairment of the
easement.
(Goldcrest Realty v. Cypress Garden)
SECTION 4
Modes of Extinguishment of Easements
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Article 631
Easements are extinguished:
(1) By merger in the same person of the ownership
of the dominant and servient estates;
(2) By nonuser for ten years; with respect to
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;
(6) By the redemption agreed upon between the
owners of the dominant and servient estates. (546a)
Article 632
The form or manner of using the easement may
prescribe as the easement itself, and in the same way.
(547a)
Article 633
If the dominant estate belongs to several persons in
common, the use of the easement by any one of
them prevents prescription with respect to the
others. (548)
Extinguishment of easements
1) By merger in the same person of the ownership
of the dominant and servient estates;
 As a consequence, if there is a merger
in the same person of the ownership of
the dominant and servient estates, the
easement is extinguished.
 Personal - if the said holder of the
easement acquires ownership of the
servient estate.
o Particular person - if the said
holder of the easement
acquires ownership of the
servient estate
o Community – acquisition of
one of the members is not
enough
 Real - the existence of two distinct
immovables belonging to different
owners
(2) By nonuser for ten years; with respect to
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;
Property | VENTEROSO
 presupposes that the easement was
used but later abandoned
 non-user must have lasted for a period
of ten (10) years
Discontinuous - from the day on which the
easement was not used.
Continuous - counted from the day on which an act
contrary to the easement took place.
Co-ownership
The use of the easement by any of the co-owners will
prevent the running of the 10-year period of extinctive
prescription by non-user.
(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;
Not suspended but extinguished
1) If the circumstances which cause the
impossibility of use shall be irreparable, in
which case, the easement is absolutely
extinguished
2) If the circumstances which cause the
impossibility of use are reparable, the easement
is likewise extinguished if the period of
extinctive prescription by non-user has
already lapsed.
Must not be a fortuitous event
The non-user must be due to voluntary abstention by
the dominant owner, and not to fortuitous event,
because the basis of this cause of extinguishment is
presumptive renunciation.
(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;
The renunciation of the easement by the owner of the
dominant estate must be specific, clear and express.
Hence, a tacit renunciation will not be sufficient.
(6) By the redemption agreed upon between the
owners of the dominant and servient estates.
Release of the servient estate from the servitude upon
agreement of the owners of both estates and upon
payment by the owner of the servient estate of the
corresponding consideration to the owner of the
dominant estate.
CHAPTER 2
Legal Easements
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SECTION 1
General Provisions
Article 634
Easements imposed by law have for their object
either public use or the interest of private persons.
(549)
Article 635
All matters concerning easements established for
public or communal use shall be governed by the
special laws and regulations relating thereto, and, in
the absence thereof, by the provisions of this Title.
(550)
Article 636
Easements established by law in the interest of
private persons or for private use shall be governed
by the provisions of this Title, without prejudice to
the provisions of general or local laws and
ordinances for the general welfare.
These easements may be modified by agreement of
the interested parties, whenever the law does not
prohibit it or no injury is suffered by a third person.
(551a)
Legal easements - are those which can be enforced
by force of law and, therefore, may be established even
against the will of the owner of the servient estate.
 Public legal easement - governed by
the special laws and regulations relating
thereto, and, in the absence thereof, by
the provisions of this Title
 Private legal easement - governed by
the provisions of this Title, without
prejudice to the provisions of general
or local laws and ordinances for the
general welfare.
1) Local laws
2) Provisions of this title
3) Agreement of the parties
SECTION 2
Easements Relating to Waters
Article 637
Lower estates are obliged to receive the waters which
naturally and without the intervention of man
descend from the higher estates, as well as the stones
or earth which they carry with them.
The owner of the lower estate cannot construct
works which will impede this easement; neither can
the owner of the higher estate make works which
will increase the burden. (552)
Article 638
The banks of rivers and streams, even in case they
are of private ownership, are subject throughout
their entire length and within a zone of three meters
along their margins, to the easement of public use in
the general interest of navigation, floatage, fishing
and salvage.
Property | VENTEROSO
Estates adjoining the banks of navigable or floatable
rivers are, furthermore, subject to the easement of
towpath for the exclusive service of river navigation
and floatage.
If it be necessary for such purpose to occupy lands
of private ownership, the proper indemnity shall first
be paid. (553a)
Article 639
Whenever for the diversion or taking of water from
a river or brook, or for the use of any other
continuous or discontinuous stream, it should be
necessary to build a dam, and the person who is to
construct it is not the owner of the banks, or lands
which must support it, he may establish the
easement of abutment of a dam, after payment of
the proper indemnity. (554)
Article 640
Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of
public use in favor of a town or village, after
payment of the proper indemnity. (555)
Article 641
Easements for drawing water and for watering
animals carry with them the obligation of the owners
of the servient estates to allow passage to persons
and animals to the place where such easements are
to be used, and the indemnity shall include this
service. (556)
Article 642
Any person who may wish to use upon his own
estate any water of which he can dispose shall have
the right to make it flow through the intervening
estates, with the obligation to indemnify their
owners, as well as the owners of the lower estates
upon which the waters may filter or descend. (557)
Article 643
One desiring to make use of the right granted in the
preceding article is obliged:
(1) To prove that he can dispose of the water and
that it is sufficient for the use for which it is
intended;
(2) To show that the proposed right of way is the
most convenient and the least onerous to third
persons;
(3) To indemnify the owner of the servient estate in
the manner determined by the laws and regulations.
(558)
Article 644
The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards,
annexes, or outhouses, or on orchards or gardens
already existing. (559)
Article 645
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
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manner as not to cause the latter any damage, or
render necessary repairs and cleanings impossible.
(560)
Article 646
For legal purposes, the easement of aqueduct shall
be considered as continuous and apparent, even
though the flow of the 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.
(561)
Article 647
One who for the purpose of irrigating or improving
his estate, has to construct a stop lock or sluice gate
in the bed of the stream from which the water is to
be taken, may demand that the owners of the banks
permit its construction, after payment of damages,
including those caused by the new easement to such
owners and to the other irrigators. (562)
Article 648
The establishment, extent, form and conditions of
the servitudes of waters, to which this section refers,
shall be governed by the special laws relating thereto
insofar as no provision therefor is made in this Code.
(563a)
Easement relating to waters
 Easement of drainage of waters (Art. 637,
NCC; Art. 50, Water Code)
ARTICLE 50. Lower estates are obliged to
receive the waters which naturally and
without the intervention of man flow from
the higher estates, as well as the stone or
earth which they carry with them.
The owner of the lower estate can not
construct works which will impede this
natural flow, unless he provides an
alternative method of drainage; neither
can the owner of the higher estate make
works which will increase this natural flow.
Easement on drainage of waters - An easement
exists when, based on the physical condition of two
estates, waters descend naturally and without the
intervention of man from a higher estate (the dominant
estate) to a lower estate (the servient estate).
Higher estate Lower estate
may not construct works may not construct
which will increase the works, such as dikes,
burden or increase the walls or hedges, which
natural flow will block or impede the
flow of waters
XPN: if he provide an
alternative method of
drainage
Right to resort to
artificial means for the
purpose of draining
waters from higher to
lower estates but in the
Property | VENTEROSO
exercise of such right, he
is obliged:
1) to select the routes
and methods of drainage
that will cause the
minimum damage to the
lower lands; and (2) to
pay just compensation to
the owner of the lower
estate
 Easement for public use (Art. 638, NCC; Art.
51, Water Code);
ARTICLE 51. The banks of rivers and
streams and the shores of the seas and lakes
throughout their entire length and within a
zone of three (3) meters in urban areas,
twenty (20) meters in agricultural areas and
forty (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
longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to
build structures of any kind.
Easement of public use - The banks or rivers and
streams and the shores of the seas and lakes
throughout their entire length and within a zone of
o three (3) meters in urban areas,
o twenty (20) meters in agricultural
areas and
o forty (40) meters in forest areas,
along their margins, are subject to the easement of
public use in the interest of
1. recreation,
2. navigation,
3. floatage,
4. fishing and
5. salvage.
 Easement for drawing waters (Arts. 640-641,
NCC)
- in favor of a town or village, after payment of
the proper indemnity
- this kind of easement, upon its establishment,
carries with it the easement of right of way.
 Easement of abutment of dam (Art. 639, NCC)
- Requisites
a) necessary to build a dam for the
purpose of diverting or taking waters
from a river or brook, or for the use of
any other continuous or discontinuous
stream,
b) the person who is to construct it is not
the owner of the banks or of the land
on which must support it
c) upon payment of the proper indemnity
to the owner of the affected estates.
 Easement of aqueduct (Arts. 642-646, NCC)
Aqueduct – flowing water through intervening
estates
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
(1) That he who wants to establish the
easement of aqueduct must be able to
prove that he can dispose of the water;
(2) He must also prove that it is sufficient for
the use for which it is intended;
(3) The proposed right of way is the most
convenient and the least onerous to
third persons affected; and
(4) He must indemnify the owners of the
servient estates (intervening estates), as
well as the owners of the lower estates
upon which the waters may filter or
descend
ARTICLE 47. When the use, conveyance or storage
of waters results in damage to another, the person
responsible for the damage shall pay compensation.
Exceptions
If established for private interest, it may not be
imposed on
 Buildings
 Courtyards
 Annexes
 Outhouse
 Orchards
 Gardens
Right of the owners of the servient estate
GR: closing or fencing it, or from building over the
aqueduct
Provided, in such manner as not to cause the latter any
damage, or render necessary repairs and cleanings
impossible
ARTICLE 49. Any person having an easement for
an aqueduct may enter upon the servient land for the
purpose of cleaning, repairing or replacing the
aqueduct or the removal of obstructions therefrom.
Nature of the easement
For legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, even though
the flow of the 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. Hence, an
easement of aqueduct may be acquired either by title or
by prescription.
SECTION 3
Easement of Right of Way
Article 649
The owner, or any person who by virtue of a real
right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to
other persons and without adequate outlet to a
public highway, is entitled to demand a right of
way through the neighboring estates, after payment
of the proper indemnity.
Property | VENTEROSO
Should this easement be established in such a
manner that its use may be continuous for all the
needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of
the value of the land occupied and the amount of
the damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded
by others and for the gathering of its crops
through the servient estate without a permanent
way, the indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if the isolation of
the immovable is due to the proprietor's own acts.
(564a)
Article 650
The easement of right of way shall be established
at the point least prejudicial to the servient
estate, and, insofar as consistent with this rule,
where the distance from the dominant estate to a
public highway may be the shortest. (565)
Article 651
The width of the easement of right of way shall be
that which is sufficient for the needs of the
dominant estate, and may accordingly be
changed from time to time. (566a)
Article 652
Whenever a piece of land acquired by sale, exchange
or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be
obliged to grant a right of way without
indemnity.
In case of a simple donation, the donor shall be
indemnified by the donee for the establishment
of the right of way. (567a)
Article 653
In the case of the preceding article, if it is the land
of the grantor that becomes isolated, he may
demand a right of way after paying a indemnity.
However, the donor shall not be liable for
indemnity. (n)
Article 654
If the right of way is permanent, the necessary
repairs shall be made by the owner of the
dominant estate. A proportionate share of the
taxes shall be reimbursed by said owner to the
proprietor of the servient estate. (n)
Article 655
If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined
it to another abutting on a public road, the owner of
the servient estate may demand that the
easement be extinguished, returning what he
may have received by way of indemnity. The
interest on the indemnity shall be deemed to be in
payment of rent for the use of the easement.
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The same rule shall be applied in case a new road is
opened giving access to the isolated estate.
In both cases, the public highway must
substantially meet the needs of the dominant
estate in order that the easement may be
extinguished. (568a)
Article 656
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 therein scaffolding or other
objects necessary for the work, the owner of such
estate shall be obliged to permit the act, after
receiving payment of the proper indemnity for the
damage caused him. (569a)
Article 657
Easements of the right of way for the passage of
livestock known as animal path, animal trail or
any other, and those for watering places, resting
places and animal folds, shall be governed by the
ordinances and regulations relating thereto, and,
in the absence thereof, by the usages and customs
of the place.
Without prejudice to rights legally acquired, the
animal path shall not exceed in any case the width
of 75 meters, and the animal trail that of 37 meters
and 50 centimeters.
Whenever it is necessary to establish a compulsory
easement of the right of way or for a watering place
for animals, the provisions of this Section and those
of articles 640 and 641 shall be observed. In this case
the width shall not exceed 10 meters. (570a)
Character
Discontinuous and thus cannot be acquired through
prescription.
Manner of acquisition
 Voluntary (Art 688–693)- constituted by
covenant and does not, therefore, require
that the dominant estate be isolated and
without an adequate outlet to a public
highway.
 Compulsory (Art 649-657) - If an estate,
however, is so isolated and without an
adequate outlet to a public highway, the grant
of easement of right of way is compulsory and
hence, legally demandable, subject to
indemnity and the concurrence of other
conditions enumerated under Articles 649 and
650 of the New Civil Code.
Isolation of the dominant estate and inadequacy of the
outlet to public highway
A compulsory easement of right of way cannot be
obtained without the presence of four (4) requisites
provided for in Articles 649 and 650 of the Civil
Code, which the owner of the dominant tenement
must establish, to wit
Property | VENTEROSO
(1) That the dominant estate is surrounded by
other immovables and has no adequate
outlet to a public highway (Art. 649, par.
1);
(2) After payment of proper indemnity (Art.
649, par. 1);
(3) That the isolation was not due to acts of the
proprietor of the dominant estate (Art.
649, par. 4); and
(4) That the right of way claimed is at the point
least prejudicial to the servient estate;
and insofar as consistent with this rule,
where the distance from the dominant estate
to a public highway may be the shortest.
(Art. 650)
(Bacolod-Murcia Milling Co., Inc. v. Capital
Subdivision)
The conferment of a legal easement of right of way
under Article 649 is subject to proof of the following
requisites:
1) it is surrounded by other immovables and
has no adequate outlet to a public highway;
2) payment of proper indemnity;
3) the isolation is not the result of its own acts;
4) the right of way claimed is at the point least
prejudicial to the servient estate; and
5) to the extent consistent with the foregoing
rule, where the distance from the dominant
estate to a public highway may be the
shortest.
(Dela Cruz v. Ramiscal)
The right of way must be absolutely necessary for
the normal enjoyment of the dominant estate by
its owner. There must be a real, not fictitious or
artificial, necessity for the right of way, and the right
cannot be claimed merely for the convenience of the
owner of the enclosed gate. (AMA Land v. Wack
Wack Residents)
The estate, however, need not be totally
landlocked as the isolation of the dominant
estate is also dependent on the particular need
of the dominant owner. What is important to
consider is whether or not a right of way is necessary
to fill a reasonable need therefor by the owner.
The true standard for the grant of legal right is
adequacy.
Hence, when there is already an existing adequate
outlet from the dominant estate to a public highway,
even if the said outlet, for one reason or another, be
inconvenient, the need to open up another servitude
is entirely unjustified.
Thus, as Manresa had pointed out, if the passageway
consists of an inaccessible slope or precipice it is as
if there is no passageway, that is, one that can
sufficiently fulfill the dominant owner’s necessities,
although by the existence of that passageway the
property cannot be truly said that the property is
isolated. (Costabella v. CA)
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The law makes it amply clear that an owner cannot, The vendor, exchanger or co-owner is the one isolated
by his own act, isolate his property from a public 5) sale, exchange or partition (Art 653)
highway and then claim an easement of way through 6) simple donation (Art 653)
an adjacent estate.
Sale, exchange Simple
Thus, when the claimant of a right of way had or partition donation
already been granted an adequate access to the Surrounded by The vendor, Donor shall be
public highway through another estate but the same other estates of exchanger or co- indemnified by
was no longer is use because he himself had closed the vendor, owner shall be the donee for the
it off by erecting a stonewall on his lot at the point exchanger, or obliged to grant a establishment of
where such passageway began, he cannot demand co-owner right of way the right of way
for a compulsory right of way in an alternative without
location. (Francisco v. IAC) indemnity
The vendor, Grantor may Donor shall not
exchanger or demand a right be liable for
When a person already established an easement in co-owner is the of way after indemnity.
favor of his tenement, he cannot demand another, one isolated payment of
even if the first passage has defects which make indemnity.
passage impossible, if those defects can be
eliminated by proper repairs. The fact that a voluntary agreement upon the
extent of compensation cannot be reached by the
The Court refused to impose a right of way over the parties involved, is not an impediment to the
petitioner’s property although private respondents’ establishment of such easement. Precisely, the action
alternative rice lands and rice paddies belonging to of the dominant estate against the servient estate
different persons, not to mention that said passage should include a prayer for the fixing of the
is impassable during the rainy season. (Floro v. amount which may be due from the former to
Llenado) the latter. (Talisay-Silay Milling v. CFI)

At the point least prejudicial Settled is the rule in statutory construction that
RULE: IF THERE IS CONFLICT, THE LEAST 'when the law is clear, the function of the courts is
PREJUDICIAL CRITERION MUST PREVAIL simple application.' Thus, to award indemnity
OVER THE SHORTEST DISTANCE using factors different from [those] given by the
CRITERION law is a complete disregard of these clear
As between a right of way that would demolish a statutory provisions and is evidently arbitrary.
store of strong materials to provide egress to a public This the Court cannot countenance. The Civil Code
highway, and another right of way which, although has clearly laid down the parameters and we cannot
longer, will only require an avocado tree to be depart from them. Verba legis non est recedendum.
cut down, the second alternative should be (Woodridge case, cited in De Guzman v.
preferred. (Quimen v. CA) Filinvest)

As between a right of way that would destroy the
wire fence and a house and another right of way
which although longer will only traverse two vacant
lots, the second alternative should be preferred.
(Calimoso v. Roullo)
Payment of indemnity
RULES:
1) Permanent passage (continuous for all the
needs of the dominant estate) –
 value of the land occupied +
 amount of the damage caused to the
servient estate. (Art 649)
2) Necessary passage for the cultivation of the
estate surrounded by others and for the
gathering of its crops
Width of the easement [Art 651]
 payment of the damage caused by
such encumbrance. (Art 649)
OTHER RULES:
Surrounded by other estates of the vendor, exchanger, or co-owner
3) sale, exchange or partition (Art 652)
4) simple donation (Art 652)
In easement of right of way, there is no
alienation of the land occupied. Payment of the
value of the land for permanent use of the
easement does not mean an alienation of the
land occupied. In fact under the law and unlike in
purchase of a property, should the right of way no
longer be necessary because the owner of the
dominant estate has joined it to another abutting on
a public highway, and the servient estate demands
that the easement be extinguished, the value of the
property received by the servient estate by way of
indemnity shall be returned in full to the dominant
estate. This only reinforces the concept that the
payment of indemnity is merely for the use of
the right of way and not for its alienation. (De
Guzman v. Filinvest)
1) that which is sufficient for the needs of the
dominant estate
2) may accordingly be changed from time to time
When petitioner started out as a plant nursery
operator, he and his family could easily make do with
a few pushcarts to tow the plants to the national
highway. But the business grew and with it the need
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
for the use of modern means of conveyance or
transport. Manual hauling of plants and garden soil
and use of pushcarts have become extremely
cumbersome and physically taxing. To force
petitioner to leave his jeepney in the highway,
exposed to the elements and to the risk of theft
simply because it could not pass through the
improvised pathway, is sheer pigheadedness on the
part of the servient estate and can only be counter-
productive for all the people concerned. Petitioner
should not be denied a passageway wide
enough to accommodate his jeepney since that
is a reasonable and necessary aspect of the plant
nursery business. (Encarnacion c. CA)
Who may demand compulsory right of way [Art
649]
 Owner
 Any person who by virtue of a real right may
cultivate or use any immovable
Usufructuary Lessee
May demand a right Cannot demand a
of way right of way
We hasten to add that under the above-quoted
Article 649 of the Civil Code, it is the owner, or any
person who by virtue of a real right may cultivate
or use any immovable surrounded by other
immovable pertaining to other persons, who is
entitled to demand a right of way through the
neighboring estates. In this case, petitioners fell
short of proving that they are the owners of the
supposed dominant estate. Nor were they able to
prove that they possess a real right to use such
property. The petitioners claim to have acquired
their property, denominated as Lot 1-B-2, from
Concepcion de la Peña, mother of defendant
Alfredo de la Cruz, who owns Lot 1-B-3, an adjacent
lot. However, as earlier noted, the trial court found
that the title to both lots is still registered in the name
of Concepcion de la Peña under TCT No. RT-56958
(100547). Neither were petitioners able to produce
the Deed of Sale evidencing their alleged purchase
of the property from de la Peña. Hence, by the bulk
of evidence, de la Peña, not petitioners, is the real
party-in-interest to claim a right of way although, as
explained earlier, any action to demand a right of
way from de la Peña’s part will not lie inasmuch as
by her own acts of building houses in the area
allotted for a pathway in her property, she had
caused the isolation of her property from any access
to a public
highway. (Dela Cruz v. Ramiscal)
Extinguishment of right of way [Art 655]
1) If the right of way granted to a surrounded
estate ceases to be necessary because its owner
has joined it to another abutting on a public
road
2) In case a new road is opened giving access to
the isolated estate.
Conditions
Property | VENTEROSO
1) In both cases, the public highway must
substantially meet the needs of the
dominant estate in order that the easement
may be extinguished.
2) It cannot apply to voluntary easements. A
voluntary easement of right of way, like any
other contract, could be extinguished only by
mutual agreement or by renunciation of the
owner of the dominant estate.
3) The extinguishment of the right of way in the
foregoing manner does not take place ipso
jure. The owner of the servient estate must ask
for the release of his estate from the servitude
upon the return of the indemnity he received.
Temporary easement of right of way [Art 656]
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 therein scaffolding or other objects necessary for
the work, the owner of such estate shall be obliged to
permit the act, after receiving payment of the proper
indemnity for the damage caused him.
“Indispensable” in this instance is not to be construed
literally. Great inconvenience is sufficient. (Preysler Jr
v. CA)
Article 656 requires proof of indispensability and
receipt of payment of the proper indemnity for the
damage caused by the owner of the dominant estate
before the owner of the servient estate can be
compelled to grant a temporary easement of right of
way. (AMA Land v. Wack Wack Residence)
SECTION 4
Easement of Party Wall
Article 658
The easement of party wall shall be governed by the
provisions of this Title, by the local ordinances
and customs insofar as they do not conflict with the
same, and by the rules of co-ownership. (571a)
Article 659
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;
(3) In fences, walls and live hedges dividing rural
lands. (572)
Article 660
It is understood that there is an exterior sign,
contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there
is a window or opening;
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(2) Whenever the dividing wall is, on one side, The expenses of maintaining the wall in the part
straight and plumb on all its facement, and on the newly raised or deepened at its foundation shall
other, it has similar conditions on the upper part, but also be paid for by him; and, in addition, the
the lower part slants or projects outward; indemnity for the increased expenses which may
(3) Whenever the entire wall is built within the be necessary for the preservation of the party wall by
boundaries of one of the estates; reason of the greater height or depth which has
(4) Whenever the dividing wall bears the burden of been given it.
the binding beams, floors and roof frame of one
of the buildings, but not those of the others; If the party wall cannot bear the increased height,
(5) Whenever the dividing wall between courtyards, the owner desiring to raise it shall be obliged to
gardens, and tenements is constructed in such a way reconstruct it at his own expense and, if for this
that the coping sheds the water upon only one of purpose it be necessary to make it thicker, he shall
the estates; give the space required from his own land. (577)
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain Article 665
intervals project from the surface on one side only, The other owners who have not contributed in
but not on the other; giving increased height, depth or thickness to the
(7) Whenever lands inclosed by fences or live wall may, nevertheless, acquire the right of part-
hedges adjoin others which are not inclosed. ownership therein, by paying proportionally the
value of the work at the time of the acquisition
In all these cases, the ownership of the walls, fences and of the land used for its increased thickness.
or hedges shall be deemed to belong exclusively (578a)
to the owner of the property or tenement which
has in its favor the presumption based on any one of Article 666
these signs. (573) Every part-owner of a party wall may use it in
proportion to the right he may have in the co-
Article 661 ownership, without interfering with the common
Ditches or drains opened between two estates are and respective uses by the other co-owners. (579a)
also presumed as common to both, if there is no
title or sign showing the contrary. Nature of a party wall
While our Civil Code recognizes the existence of co-
There is a sign contrary to the part-ownership ownership in a party wall, it is considered more of a
whenever the earth or dirt removed to open the servitude.
ditch or to clean it is only on one side thereof, in
which case the ownership of the ditch shall belong
Party wall as a Co-owned property
exclusively to the owner of the land having this
exterior sign in its favor. (574) servitude
No such juridical None of the co-owners
Article 662 limitation upon the may do anything on the
The cost of repairs and construction of party walls action of the owner; co-owned property for
and the maintenance of fences, live hedges, made in the works for his own exclusive benefit
ditches, and drains owned in common, shall be the exclusive benefit of because he would be
borne by all the owners of the lands or tenements the person making them impairing the rights of
having the party wall in their favor, in proportion others
to the right of each.

Nevertheless, any owner may exempt himself from

contributing to this charge by renouncing his part-
ownership, except when the party wall supports
a building belonging to him. (575)

Article 663
If the owner of a building, supported by a party
wall desires to demolish the building, he may also
renounce his part-ownership of the wall, but the
cost of all repairs and work necessary to prevent
any damage which the demolition may cause to the
party wall, on this occasion only, shall be borne by
him. (576)

Article 664
Every owner may increase the height of the party
wall, doing so at his own expense and paying for
any damage which may be caused by the work, even
though such damage be temporary.
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
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Governing laws [Art 658]
1) provisions of this Title,
2) by the local ordinances and
Rights and obligations of each co-owner of party
3) customs insofar as they do not conflict with the
wall
same, and
4) by the rules of co-ownership
Presumption of existence of easement of party
wall
The law presumes the existence of an easement of
party wall in the following cases:
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 rural communities; and
3) In fences, walls and live hedges dividing rural
lands.
Exceptions
1) there is title to the contrary;
2) there is an exterior sign to the contrary; and
 Whenever in the dividing wall of
buildings there is a window or opening;
 Whenever the 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;
 Whenever the entire wall is built
within the boundaries of one of the
estates;
 Whenever 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;
 Whenever 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;
 Whenever the dividing wall, being built
of masonry, has stepping stones, which
at certain intervals project from the
surface on one side only, but not on the
other;
 Whenever lands inclosed by fences or
live hedges adjoin others which are not
inclosed.
 With respect to ditches or drains
opened between two estates, there is
also a presumption that they are
common to both estates unless there is
a sign or title to the contrary. There is
a sign contrary to the part-ownership
whenever the earth or dirt removed to
open the ditch or to clean it is only on
one side thereof, in which case the
Property | VENTEROSO
ownership of the ditch shall belong
exclusively to the owner of the land
having this exterior sign in its favor.
3) there is proof to the contrary
1) right to use (Art 666)
2) right to increase height of party wall (Art 664)
 the same shall be done at his expense;
 he shall pay for any damage which
may be caused by his work, even
though such damage may be
temporary;
 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, and, if for this
purpose it be necessary to make it
thicker, he shall give the space required
from his own land.
As to the point where the original
wall was extended – co-
ownership is maintained
As to the additional height - shall
be exclusively owned by the part-
owner at whose instance the party
wall was raised
3) obligation to the repairs and maintenance
Shall be borne by all the owners of the lands or
tenements having the party wall in their favor,
in proportion to the right of each.
Exemption to obligation
GR: any owner may exempt himself from
contributing to this charge by renouncing his
part-ownership
XPN: when the party wall supports a building
belonging to him. In case where the party wall
supports a building, the owner of such building
may renounce his part ownership of the party
wall if he will demolish the building. But the
cost of all repairs and work necessary to
prevent any damage which the demolition may
cause to the party wall on this occasion shall be
borne by him.
SECTION 5
Easement of Light and View
Article 667
No part-owner may, without the consent of the
others, open through the party wall any window or
aperture of any kind. (580)
Article 668
The period of prescription for the acquisition of an
easement of light and view shall be counted:
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
(1) From the time of the opening of the window,
if it is through a party wall; or
(2) From the time of the formal prohibition upon
the proprietor of the adjoining land or tenement, if
the window is through a wall on the dominant estate.
(n)
Article 669
When the distances in article 670 are not observed,
the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to
another, can make in it openings to admit light at
the height of the ceiling joints or immediately
under the ceiling, and of the size of thirty
centimeters square, and, in every case, with an iron
grating imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made
can close them should he acquire part-
ownership thereof, if there be no stipulation to
the contrary.
He can also obstruct them by constructing a building
on his land or by raising a wall thereon contiguous
to that having such openings, unless an easement of
light has been acquired. (581a)
Article 670
No windows, apertures, balconies, or other similar
projections which afford a direct view upon or
towards an adjoining land or tenement can be made,
without leaving a distance of two meters between
the wall in which they are made and such contiguous
property.
Neither can side or oblique views upon or towards
such conterminous property be had, unless there be
a distance of sixty centimeters.
The nonobservance of these distances does not give
rise to prescription. (582a)
Article 671
The distance referred to in the preceding article shall
be 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. (583)
Article 672
The provisions of article 670 are not applicable to
buildings separated by a public way or alley,
which is not less than three meters wide, subject to
special regulations and local ordinances. (584a)
Article 673
Whenever by any title a right has been acquired to
have direct views, balconies or belvederes
overlooking an adjoining property, the owner of the
servient estate cannot build thereon at less than a
distance of three meters to be measured in the
manner provided in article 671. Any stipulation
permitting distances less than those prescribed
in article 670 is void. (585a)
Property | VENTEROSO
Easements of light and view
Refers to an easement whereby the dominant estate
enjoys the right to have free access to light, a little air,
and a view overlooking the adjoining estate.
Two components
1) Easement of light (jus luminum) – has the
purpose of admitting light and a little air, as in
the case of small windows, not more than 30
centimeters square, at the height of the ceiling
joists or immediately under the ceiling.
2) Easement of view (servidumbre
prospectus) – has the principal purpose of
affording view, as in the case of full or regular
windows overlooking the adjoining estate.
Making an opening in a party wall
GR: A part-owner of a party wall may use it even
without the consent the consent of the other owners
so long as he does not interfere in the common and
respective uses by the other co-owners. (Art 666)
XPN: No part-owner may, without the consent of the
others, open through the party wall any window or
aperture of any kind. (Art 667)
If done:
1) Without the consent of other co-owners -
The latter may demand that what has been
done be undone at the expense of the co-
owner who made such opening.
2) With the consent of co-owners - The 10-year
period of prescription for the acquisition of an
easement of light and view shall commence to
run from the time of the making of such
opening.
Observation of certain distances
2 Kinds of windows
1) Regular or full or direct view windows
2) Restricted or oblique or side view windows
2 Kinds of openings
1) Direct views – Those openings which are
made on a wall parallel or almost parallel to the
line that divides the estates, in such a way that
the neighboring tenement can be seen without
putting out or turning the head, or
2) Oblique views – those openings in a wall
which form an angle to the boundary line and
therefore of necessity requires in order to see
the neighboring tenement to thrust the head of
the opening and look to the left and right
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
RULES:
1) Distance from the ceiling - In the case of
small windows, not more than 30 centimeters
square, at the height of the ceiling joists or
immediately under the ceiling. (Art 669) [IF
DISTANCE FOR OPENINGS ARE NOT
OBSERVED]
2) Distance between the wall in which they
are made and such contiguous property -
No windows, apertures, balconies, or other
similar projections which afford a direct view
upon or towards an adjoining land or tenement
can be made, without leaving a distance of two
meters between the wall in which they are
made and such contiguous property. (Art 670)
 Oblique views – 60 centimeters
Measurement of distance [Art 671]
1) 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
2) oblique view - from the dividing line
between the two properties.
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Art 670 illustration
Art 671 illustration – oblique views
Exception to distance rule
1) The provisions of article 670 are not applicable
to buildings separated by a public way or alley,
which is not less than three meters wide,
subject to special regulations and local
ordinances. (Art 672)
2) Whenever by any title [or prescription] a right
has been acquired to have direct views,
balconies or belvederes overlooking an
adjoining property, the owner of the servient
estate cannot build thereon at less than a
Property | VENTEROSO
distance of three meters to be measured in the
manner provided in article 671. Any stipulation
permitting distances less than those prescribed
in article 670 is void. (Art 673)
Art 672 illustration
It is obvious, however, that Article 538, O.C.C. (now
Article 621, N.C.C.) and the doctrine in the Yu-Tibo
case are not applicable herein because the two
estates, that now owned by petitioner, and that
owner by respondent, were formerly owned by just
one person, Francisco Sanz. It was Sanz who
introduced improvements on both properties. On
that portion presently belonging to respondent, he
constructed a house in such a way that the
northeastern side thereof extends to the wall of the
camarin on the portion now belonging to petitioner.
On said northeastern side of the house, there are
windows and doors which serve as passages for light
and view. These windows and doors were in
existence when respondent purchased the
house and lot from Sanz. The deed sale did not
provide that the easement of light and view
would not be established. This then is precisely the
case covered by Article 541, O.C.C (now Article 624,
N.C.C) which provides that the existence of an
apparent sign of easement between two estates,
established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so
that the easement will continue actively and
passively, unless at the time the ownership of the
two estate is divided, the contrary is stated in the
deed of alienation of either of them, or the sign is
made to disappear before the instrument is executed.
The existence of the doors and windows on the
northeastern side of the aforementioned house, is
equivalent to a title, for the visible and permanent
sign of an easement is the title that characterizes its
existence (Amor vs. Florentino, 74 Phil., 403). It
should be noted, however, that while the law
declares that the easement is to "continue" the
easement actually arises for the first time only
upon alienation of either estate, inasmuch as
before that time there is no easement to speak
of, there being but one owner of both estates
(Articles 530, O.C.C., now Articles 613, N.C.C).
(Gargantos v. Tan Yanon)
REMEDIES
1) When windows or balconies are opened in
violation of the distance requirement in Art
670, the same may be ordered closed because
they constitute unlawful openings.
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2) The owner of the tenement or property
adjoining the wall in which the openings are
made can close them should he acquire part-
ownership thereof, if there be no stipulation
to the contrary. (Art 669) – MAY BE
MADE EVEN WITHOUT VIOLATION
3) Obstruct them by constructing a building on
his land or by raising a wall thereon contiguous
to that having such openings, unless an
easement of light has been acquired. (Art 669)
- MAY BE MADE EVEN WITHOUT
VIOLATION AND IF HE DID NOT
ACQUIRE PART-OWNERSHIP
SECTION 6
Drainage of Buildings
Article 674
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 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. (586a)
Article 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.
(587)
Article 676
Whenever the yard or court of a house is
surrounded by other houses, and it is not possible
to give an outlet through the house itself to the
rain water collected thereon, the establishment
of an easement of drainage can be demanded,
giving an outlet to the water at the point of the
contiguous lands or tenements where its egress
may be easiest, and establishing a conduit for the
drainage in such manner as to cause the least
damage to the servient estate, after payment of
the property indemnity. (583)
Easement of drainage of buildings
The easement of drainage of buildings is the right to
divert or empty the rainwaters from one’s own roof or
shed to the neighbor’s estate either drop by drop or
through conduits.
Ownership of rainwaters
GR: Pursuant to the provisions of the Water Code of
the Philippines, rain waters falling on private lands shall
belong to the State.
XPN: Any person who captures or collects water by
means of cisterns, tanks or pools shall have exclusive
Property | VENTEROSO
control over such water and he shall also have the right
to dispose of the same. The owner of the land where
the rain waters fall may use the same even without
securing a permit from the National Water Resources
Council but only for domestic purposes.
Requisites for legal easement of drainage
An easement of drainage may be demanded subject to
compliance with the following requisites:
1) The yard or court of a house must be
surrounded by other houses (“the dominant
estate”) and it is not possible to give an
outlet through the house itself to the rain
collected therefrom;
2) The outlet to the water must be at the point
of the contiguous lands or tenements (“the
servient estate”) where its egress may be
easiest;
3) The conduit for the drainage must be
established in such manner as to cause the
least damage to the servient estate; and
4) Proper indemnity must be paid to the owner
of the servient estate.
SECTION 7
Intermediate Distances and Works for Certain
Constructions and Plantings
Article 677
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.
(589)
Article 678
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.
In the absence of regulations, such precautions shall
be taken as may be considered necessary, in order to
avoid any damage to the neighboring lands or
tenements. (590a)
Article 679
No trees shall be planted near a tenement or piece
of land belonging to another except at the distance
authorized by the ordinances or customs of the
place, and, in the absence thereof, at a distance of at
least two meters from the dividing line of the
estates if tall trees are planted and at a distance of
at least fifty centimeters if shrubs or small trees
are planted.
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Every landowner shall have the right to demand that
trees hereafter planted at a shorter distance from
his land or tenement be uprooted.
The provisions of this article also apply to trees
which have grown spontaneously. (591a)
Article 680
If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the
owner of the latter shall have the right to demand
that they be cut off insofar as they may spread
over his property, and, if it be the roots of a
neighboring tree which should penetrate into the
land of another, the latter may cut them off himself
within his property. (592)
Article 681
Fruits naturally falling upon adjacent land belong
to the owner of said land. (n)
Intermediate distances for planting
Article 679 of the New Civil Code prohibits the
planting of trees near a tenement or piece of land
belonging to another person unless the following
distance requirement is observed:
1) the distance authorized by local ordinances or
customs of the place, if any; or
2) in default of the foregoing, at a distance of at
least two (2) meters from the dividing line of
the estate in case of tall trees and at a distance
of at least 50 centimeters in case of shrubs
or small trees.
Effect of violation
1) the owner of the adjacent land has the right to
demand for the uprooting of the trees which
were planted in violation of the rule.
2) This remedy is also available to the owner of
the adjacent land even with respect to trees
which have grown spontaneously at
distances shorter than that mentioned in the
immediately preceding paragraph.
Right to cut branches and roots
Branches
1) If the branches of any tree should extend over
a neighboring estate, tenement, garden or yard,
the owner of the latter does not have the
right to take the matter into his own hand
by cutting of the branches extending on his
property. Instead, he may demand that the
protruding branches be cut-off by its
owner.
2) If his demand is not acted upon, he has to go
to court to seek authority for the cutting of the
protruding branches.
Roots
The owner of the latter may himself cut off the roots
found within his property.
Property | VENTEROSO
Fruits naturally falling
GR: Fruits belong to the owner of the trees (Art 441)
XPN: Fruits which are naturally falling upon adjacent
land belong to the owner of the said land.
SECTION 8
Easement Against Nuisance (n)
Article 682
Every building or piece of land is subject to the
easement which prohibits the proprietor or
possessor from committing nuisance through
noise, jarring, offensive odor, smoke, heat, dust,
water, glare and other causes.
Article 683
Subject to zoning, health, police and other laws and
regulations, factories and shops may be maintained
provided the least possible annoyance is caused to
the neighborhood.
SECTION 9
Lateral and Subjacent Support (n)
Article 684
No proprietor shall make such excavations upon
his land as to deprive any adjacent land or building
of sufficient lateral or subjacent support.
Article 685
Any stipulation or testamentary provision
allowing excavations that cause danger to an
adjacent land or building shall be void.
Article 686
The legal easement of lateral and subjacent support
is not only for buildings standing at the time the
excavations are made but also for constructions
that may be erected.
Article 687
Any proprietor intending to make any excavation
contemplated in the three preceding articles shall
notify all owners of adjacent lands.
Legal easement of lateral and subjacent support
The right of lateral and subjacent support is the right
to have land supported by the adjoining land or the soil
beneath. Each of two adjoining landowners is entitled
to the support of the other’s land.
1) Lateral support - when the supported and the
supporting lands are divided by a vertical plane
2) Subdjacent support - the supported land is
above and the supporting land is beneath it.
GR: An owner, by virtue of his surface right, may make
excavations on his land.
XPN: He shall not deprive any adjacent land or
building of sufficient lateral or subjacent support.
(Castro v. Monsod)
Between two adjacent landowners, each has an
absolute property right to have his land laterally
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 FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
supported by the soil of his neighbor, and if either,
in excavating on his own premises, he so disturbs the
lateral support of his neighbor’s land as to cause it,
or, in its natural state, by the pressure of its own
weight, to fall away or slide from its position, the one
so excavating is liable.
We sustain the CA in declaring that a permanent
injunction on the part of petitioner from making
injurious excavations is necessary in order to protect
the interest of respondent. However, an annotation
of the existence of the subjacent and lateral support
is no longer necessary. It exists whether or not it is
annotated or registered in the registry of property. A
judicial recognition of the same already binds the
property and the owner of the same, including her
successors-in-interest. Otherwise, every adjoining
landowner would come to court or have the
easement of subjacent and lateral support registered
in order for it to be recognized and respected.
(Castro v. Monsod)
CHAPTER 3
Voluntary Easements
Article 688
Every owner of a tenement or piece of land may
establish thereon the easements which he may deem
suitable, and in the manner and form which he may
deem best, provided he does not contravene the
laws, public policy or public order. (594)
Article 689
The owner of a tenement or piece of land, the
usufruct of which belongs to another, may impose
thereon, without the consent of the usufructuary,
any servitudes which will not injure the right of
usufruct. (595)
Article 690
Whenever the naked ownership of a tenement or
piece of land belongs to one person and the
beneficial ownership to another, no perpetual
voluntary easement may be established thereon
without the consent of both owners. (596)
Article 691
In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the
co-owners shall be required.
The consent given by some only, must be held in
abeyance until the last one of all the co-owners shall
have expressed his conformity.
But the consent given by one of the co-owners
separately from the others shall bind the grantor
and his successors not to prevent the exercise of the
right granted. (597a)
Article 692
The title and, in a proper case, the possession of an
easement acquired by prescription shall
determine the rights of the dominant estate and
the obligations of the servient estate. In default
Property | VENTEROSO
thereof, the easement shall be governed by such
provisions of this Title as are applicable thereto.
(598)
Article 693
If the owner of the servient estate should have
bound himself, upon the establishment of the
easement, to bear the cost of the work required for
the use and preservation thereof, he may free himself
from this obligation by renouncing his property to
the owner of the dominant estate. (599)
Voluntary easement
If the claimant is not entitled to demand for an
easement as a matter of right because the requisites for
legal easement are not present, the easement may only
be constituted upon the will of the owner of the
servient estate in which case, the easement is classified
as voluntary.
Easement of a co-owned property
If the tenement or piece of land is in a state of co-
ownership, the unanimous consent of all co-owners
is required in order to constitute a voluntary easement
upon the same.
It may either be done
1) Simultaneously -
2) Successively - consent given by one of the co-
owners separately from the others shall already
bind him and his successors
Abandonment of property
1) If upon the establishment of a voluntary
easement, the owner of the servient estate
bound himself to bear the cost of the work
required for the use and preservation of the
easement he may free himself from this
obligation by renouncing his property to the
owner of the dominant estate.
2) The owner of the servient estate need not
renounce his ownership over the entire
property if the servitude affects only a part
thereof in which case, he may abandon only
that part which is burdened with the servitude.
Must the abandonment be reduced in some form?
Since the abandonment contemplated in Article 693 of
the New Civil Code produces the transmission of
ownership over a real property, the law (Article 1358,
par. 1 of the New Civil Code) requires that the same
must appear in a public document. However, the
provision of Article 1358 of the Civil Code on the
necessity of a public document is only for convenience,
not for validity or enforceability.
TITLE VIII
NUISANCE (n)
Article 694
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A nuisance is any act, omission, establishment,
business, condition of property, or anything else
which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of water;
or
(5) Hinders or impairs the use of property.
Definition
 derived from the French word “nuire” which
means to injure, hurt or harm.
 Art 431 specifically mandates that the owner of
a thing cannot make use thereof in such a
manner as to injure the rights of a third person.
 The source of obligation of the person
responsible to pay damages is quasi delict or
tort.
 Any
o act,
o omission,
o establishment,
o business,
o condition of property or
o anything else
which injures or endangers the health or
safety of others; annoys or offends the
senses, shocks, defies or disregards
decency or morality, obstructs or
interferes with the free passage of any
public highway or street, or any body of
water or hinders or impairs the use of
property. (Art 694)
Based on case law, however, the term "nuisance" is
deemed to be "so comprehensive that it has been
applied to almost all ways which have interfered
with the rights of the citizens, either in person,
property, the enjoyment of his property, or his
comfort." (Rana v. Lee Wong)
A barrio road is designated for the use of the general
public who are entitled to free and unobstructed
passage thereon. Permanent obstructions on these
roads, such as the respondents' illegally constructed
house, are injurious to public welfare and
convenience. The occupation and use of private
individuals of public places devoted to public use
constitute public and private nuisances and nuisance
per se. (Alolino v. Flores)
Nuisance Negligence
Legal basis is a quasi- Legal basis is the want of
delict or tort proper care
Article 695
Nuisance is either public or private. A public
nuisance affects a community or neighborhood or
Property | VENTEROSO
any considerable number of persons, although the
extent of the annoyance, danger or damage upon
individuals may be unequal. A private nuisance is
one that is not included in the foregoing definition.
Classifications
According to the object it affects
1) public - affects a community or neighborhood
or any considerable number of persons,
although the extent of the annoyance, danger
or damage upon individuals may be unequal.
2) Private - one that is not included in the
foregoing definition
 One that violates only the private rights
and produces damages to but one or a
few persons (Cruz v. Pandacan
Hiker’s Club)
3) Mixed - one which is both public and private
in its effects, public because it injures many
persons or all the community, and private in
that it also produces special injuries to private
rights.
Private nuisance Trespass to land
interference with his use an invasion of the
and enjoyment of it plaintiff’s interest in the
exclusive possession of
his land
a use of one’s own a direct infringement of
property in such a another’s right of
manner as to cause injury property
to the property or other
right or interest of
another and generally
results from the
commission of an act
beyond the limits of the
property affected
Requisites for recovery under private nuisance
1) that there was damage to the property; and
 physical damage (tangible nuisance)
 personal discomfort (intangible
nuisance)
 Examples: noise from a go-kart track,
bad smell emanating from a pig farm.
2) the interference is either:
a) intentional and unreasonable; or
b) unintentional and otherwise negligent
or reckless conduct; or
c) resulting in abnormally dangerous
activities in an inappropriate place
Comparative utility or balancing of utilities
doctrine - there is only a nuisance if the annoyance
outweighs the utility to the actor and to society as a
whole
According to its susceptibility to summary abatement
1) Nuisance per se (nuisance at law) - nuisance
under any and all circumstances, regardless of
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location or surroundings, because it constitutes
a direct menace to public health or safety
2) Nuisance per accidens (nuisance in fact) - may
become a nuisance by reason of the
circumstances of the location and surroundings
or manner in which it is performed or
operated, and its existence being a question of
fact, it cannot be abated without due hearing
thereon in a tribunal authorized to decide
whether such a thing does in law constitute a
nuisance.
Per se Per accidens
nuisance under any and may become a nuisance
all circumstances by reason of the
circumstances of the
location and
surroundings or manner
in which it is performed
or operated
injury in some form is injury is uncertain or
certain to be inflicted contingent until it
actually occurs
May be summarily Cannot be abated
abated without due hearing
Respondents can not seek cover under the general
welfare clause authorizing the abatement of
nuisances without judicial proceedings. That tenet
applies to a nuisance per se, or one which affects
the immediate safety of persons and property
and may be summarily abated under the
undefined law of necessity. The storage of copra
in the quonset building is a legitimate business. By
its nature, it can not be said to be injurious to rights
of property, of health or of comfort of the
community. If it be a nuisance per accidens it may
be so proven in a hearing conducted for that
purpose. It is not per se a nuisance warranting its
summary abatement without judicial intervention.
(Perez v. Madrona)
Doctrine of attractive nuisance
xxxThe doctrine may be stated, in short, as follows:
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.
the attractive nuisance doctrine generally is not
applicable to bodies of water, artifi cial as well as
natural, in the absence of some unusual condition or
artifi cial feature other than the mere water and its
location (Hidalgo Enterprises, Inc. v. Balandan)
Article 696
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.
Property | VENTEROSO
Article 697
The abatement of a nuisance does not preclude the
right of any person injured to recover damages for
its past existence.
Article 698
Lapse of time cannot legalize any nuisance, whether
public or private.
Article 699
The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local
ordinance: or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
Article 700
The district health officer shall take care that one
or all of the remedies against a public nuisance are
availed of.
Article 701
If a civil action is brought by reason of the
maintenance of a public nuisance, such action shall
be commenced by the city or municipal mayor.
Article 702
The district health officer shall determine whether
or not abatement, without judicial proceedings,
is the best remedy against a public nuisance.
Article 703
A private person may file an action on account of
a public nuisance, if it is specially injurious to
himself.
Article 704
Any private person may abate a public nuisance
which is specially injurious to him by removing, or
if necessary, by destroying the thing which
constitutes the same, without committing a breach
of the peace, or doing unnecessary injury. But it is
necessary:
(1) That demand be first made upon the owner or
possessor of the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district
health officer and executed with the assistance of
the local police; and
(4) That the value of the destruction does not
exceed three thousand pesos.
Article 705
The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
Article 706
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
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unnecessary injury. However, it is indispensable
that the procedure for extrajudicial abatement of
a public nuisance by a private person be
followed.
Article 707
A private person or a public official
extrajudicially abating a nuisance shall be liable for
damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the
courts to be not a real nuisance.
Remedies
Public nuisance Private nuisance
A prosecution under
the Penal Code or any
local ordinance
A civil action A civil action
Abatement, without Abatement, without
judicial proceedings judicial proceedings
The remedies of an abatement and damages are
cumulative; hence, both may be demanded. (Rana
v. Lee Wong)
Abatement of nuisance
In establishing a no build zone through local
legislation, the LGU effectively made a
determination that constructions therein, without
first securing exemptions from the local council,
qualify as nuisances for they pose a threat to public
safety. No build zones are intended for the
protection of the public because the stability of the
ground’s foundation is adversely affected by the
nearby body of water. The ever-present threat of
high rising storm surges also justifies the ban on
permanent constructions near the shoreline. Indeed,
the area’s exposure to potential geo-hazards cannot
be ignored and ample protection to the residents of
Malay, Aklan should be afforded.
Challenging the validity of the public respondents’
actuations, petitioner posits that the hotel cannot
summarily be abated because it is not a nuisance per
se, given the hundred million peso-worth of capital
infused in the venture. Citing Asilo, Jr. v. People,
petitioner also argues that respondents should have
first secured a court order before proceeding with
the demolition.
Preliminarily, We agree with petitioner’s posture that
the property involved cannot be classified as a
nuisance per se, but not for the reason he so
offers. Property valuation, after all, is not the
litmus test for such a determination. More
controlling is the property’s nature and
conditions, which should be evaluated to see if
it qualifies as a nuisance as defined under the
law.
In the case at bar, the hotel, in itself, cannot be
considered as a nuisance per se since this type of
nuisance is generally defined as an act, occupation,
Property | VENTEROSO
or structure, which is a nuisance at all times and
under any circumstances, regardless of location or
surrounding. Here, it is merely the hotel’s 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. As such, petitioner is correct that the
hotel is not a nuisance per se, but to Our mind, it is
still a nuisance per accidens. (Aquino v.
Municipality of Malay)
The business of gasoline station could not be
considered a nuisance per se which the municipality
could summarily abate in the guise of exercising its
police power. Hence, it cannot be closed down or
transferred summarily to another location. (Parayno
v. Jovellanos)
The bus and jeepney terminals are not nuisances per
se. Hence, they may not be abated via an ordinance,
without judicial proceedings, as was done in this
case. (Lucena Grand Central Terminal, Inc. v.
JAC Liner)
The Court likewise struck down the ordinance
passed by the City Council of Manila prohibiting the
operation of sauna parlors, massage parlors, karaoke
bars, night clubs, day clubs, super clubs,
discotheques, cabarets, dance halls, motels and inns
within the Ermita-Malate area. The Court held,
among others, that the City of Manila could not
seek cover under the general welfare clause to
authorize the abatement of nuisances without
judicial proceedings because motels are not
nuisances per se. (City of Manila v. Judge
Laguio, Jr)
Concrete posts summarily removed by the
Municipal Engineer did not at all pose a hazard to
the safety of persons and properties, which would
have necessitated immediate and summary
abatement. What the concrete posts did, at most,
was to pose an inconvenience to the public by
blocking the free passage of people to and from the
national road (Telmo v. Bustamante)
A basketball ring is not a nuisance per se that is
susceptible to a summary abatement. At most, it is a
nuisance per accidens. A basketball ring, by itself,
poses no immediate harm or danger to anyone but
is merely an object of recreation. Neither is it, by
nature, injurious to rights of property, of health or
of comfort of the community and, thus, it may not
be abated as a nuisance without the benefit of a
judicial hearing. (Cruz v. Pandacan Hikers Club)
Does the LGU have the power to declare a particular
thing as a nuisance?
Generally, LGUs have no power to declare a
particular thing as a nuisance unless such a thing is a
nuisance per se.
Under Section 447(a)(3)(i) of R.A. No. 7160,
otherwise known as the Local Government Code,
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the Sangguniang Panglungsod is empowered to
enact ordinances declaring, preventing or abating
noise and other forms of nuisance. It bears
stressing, however, that the Sangguniang Bayan
cannot declare a particular thing as a nuisance
per se and order its condemnation. It does not
have the power to find, as a fact, that a particular
thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the
extrajudicial condemnation and destruction of
that as a nuisance which in its nature, situation
or use is not such. Those things must be
determined and resolved in the ordinary courts
of law. If a thing, be in fact, a nuisance due to
the manner of its operation, that question
cannot be determined by a mere resolution of
the Sangguniang Bayan.
Despite the hotel’s classification as a nuisance per
accidens, however, We still find in this case that
the LGU may nevertheless properly order the
hotel’s demolition. This is because, in the exercise
of police power and the general welfare clause,
property rights of individuals may be subjected to
restraints and burdens in order to fulfill the
objectives of the government. Otherwise stated, the
government may enact legislation that may interfere
with personal liberty, property, lawful businesses
and occupations to promote the general welfare.
(Aquino v. Municipality of Malay)
Who may abate
1) City and/or the Municipal Health Officer, or
2) in cases of illegal construction, the City and/or
Municipal Engineer
3) district health officer
4) chief executive of the local government (e.g
Punong Barangay)
5) a private person
 public nuisance – must be nuisance per
se (Art 706)
 private nuisance (Art 704)
When is there liability for a private person or
public official who extra-judicially abates a
nuisance
1) if he causes unnecessary injury; or
2) if an alleged nuisance is later declared by the
courts to be not a real nuisance.
Who are liable for damages [Art 696, 697]
1) the person who caused the nuisance
2) every successive owner or possessor of the
property who fails or refuses to abate the same
in that property – SAME LIABILITY
Lapse of time [Art 698]
Lapse of time cannot legalize any nuisance, whether
public or private.
TITLE IX
REGISTRY OF PROPERTY
Property | VENTEROSO
Article 708
The Registry of Property has for its object the
inscription or annotation of acts and contracts
relating to the ownership and other rights over
immovable property. (605)
Article 709
The titles of ownership, or of other rights over
immovable property, which are not duly inscribed or
annotated in the Registry of Property shall not
prejudice third persons. (606)
Article 710
The books in the Registry of Property shall be public
for those who have a known interest in ascertaining
the status of the immovables or real rights annotated
or inscribed therein. (607)
Article 711
For determining what titles are subject to inscription
or annotation, as well as the form, effects, and
cancellation of inscriptions and annotations, the
manner of keeping the books in the Registry, and the
value of the entries contained in said books, the
provisions of the Mortgage Law, the Land
Registration Act, and other special laws shall govern.
(608a)
TITLE III
DONATION
CHAPTER 1
Nature of Donations
Article 725
Donation is an act of liberality whereby a person
disposes gratuitously of a thing or right in favor of
another, who accepts it. (618a)
Donation
Is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another, who
accepts it
Parties
 Donor – the one who donates
 Donee – the one who receives the donation
Essential elements
 the essential reduction of the patrimony of the
donor;
 the increase in the patrimony of the donee; and
 the intent to do an act of liberality or animus
donandi.
Characteristics
1) Not every form of liberality is considered as
donation. The liberality should be strictly
construed.
2) It is a contract
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3) It is a bilateral act but is a unilateral contract
which imposes obligations only on the donor.
4) It requires tradition (delivery) to vest title in the
donee.
5) It is a mode of acquisition of ownership. It
need not be completed by tradition.
Classifications
Donative intent is a feature of minds; donative intent
is presumed present when one gives a part of one's
patrimony to another without consideration.
(Abello v. CIR)
For a donation to exist, however, the intent to
donate must be effectively carried out. Hence, a
mere declaration of an intention or desire to donate
is not a donation. (Jutic v. CA)
Article 726
When a person gives to another a thing or right on
account of the latter's merits or of the services
rendered by him to the donor, provided they do not
constitute a demandable debt, or when the gift
imposes upon the donee a burden which is less than
the value of the thing given, there is also a donation.
(619)
Article 727
Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not
imposed. (n)
Article 728
Donations which are to take effect upon the death
of the donor partake of the nature of testamentary
provisions, and shall be governed by the rules
established in the Title on Succession. (620)
Article 729
When the donor intends that the donation shall take
effect during the lifetime of the donor, though the
property shall not be delivered till after the donor's
death, this shall be a donation inter vivos. The fruits of
the property from the time of the acceptance of the
donation, shall pertain to the donee, unless the
donor provides otherwise. (n)
Article 730
The fixing of an event or the imposition of a
suspensive condition, which may take place beyond
the natural expectation of life of the donor, does not
destroy the nature of the act as a donation inter vivos,
unless a contrary intention appears. (n)
Article 731
When a person donates something, subject to the
resolutory condition of the donor's survival, there is
a donation inter vivos. (n)
Article 732
Donations which are to take effect inter vivos shall be
governed by the general provisions on contracts and
obligations in all that is not determined in this Title.
(621)
Article 733
Property | VENTEROSO
Donations with an onerous cause shall be governed
by the rules on contracts and remuneratory
donations by the provisions of the present Title as
regards that portion which exceeds the value of the
burden imposed. (622)
1) Mortis causa - If the donation is made in
contemplation of the donor’s death, meaning
that the full or naked ownership of the donated
properties will pass to the donee only because
of the donor’s death. It is actually a devise or a
legacy.
2) Inter vivos - if the donation takes effect during
the donor’s lifetime or independently of the
donor’s death, meaning that the full or naked
ownership (nuda proprietas) of the donated
properties passes to the donee during the
donor’s lifetime.
According to purpose or cause
1) Pure or simple - one where the underlying
cause is plain gratuity or pure liberality (no
strings attached). Donation in its truest
form.
2) Remuneratory or compensatory - one
made for the purpose of rewarding the
donee for past services, which services do
not amount to a demandable debt
(payment). (Art 726)
Note: if future, the donation is onerous.
3) Conditional or modal - one where the
donation is made in consideration of
future services or where the donor
imposes certain conditions, limitations
or charges upon the donee, the value of
which is inferior than that of the donation
given. (Art 726)
o There is donation as to the extent
of the excess
Conditional/modal Onerous
the donor imposes made for a
certain conditions, valuable
limitations or charges consideration, the
upon the donee, the cost of which is
value of which is equal to or more
inferior than that of than the thing
the donation given donated
Shall be governed by It is completely
the law on contracts governed not by
up to extent of the the law on
burden and by the law donations but by
on donations as the law on
regards that portion contracts
which exceeds the
value of the burden
imposed.
4) Onerous – that which imposes upon the
donee a reciprocal obligation; made for a
valuable consideration. (Art 733)
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In determining whether a donation is should survive the

simple or onerous, we must look at the transferee.
intent of the donor (Lagazo v. CA)
The time of effectivity distinguishes both mortis
Importance of distinctions causa and inter vivos. The effectivity is determined by
1) For determining the rules that shall govern a the time when the full or naked ownership of the
particular donation; donated properties is transmitted to the donees.
2) The formalities to be followed;
3) The effect of imposition of illegal or The presence of the following does not destroy the
impossible conditions. nature of the act as a donation inter vivos.
Article 727. Illegal or impossible 1) The
conditions in simple and remuneratory o fixing of an event or
donations shall be considered as not o the imposition of a suspensive
imposed. (n) condition, which may take place
beyond the natural expectation of life
Simple/remuneratory Others of the donor (Art 730)
Rules that Primary – Law on Law on - [CONDITIONS]
govern donations obligations 2) When the donor intends that the donation shall
Suppletory – Law on and
take effect during the lifetime of the donor,
obligations and contracts
contracts (to the though the property shall not be delivered till
extent of after the donor's death, this shall be a
onerous donation inter vivos. (Art 729)
donations) [PROHIBITION TO ALIENATE]
The Art 748 and 749 Obligatory
formalities in It is the body of the document of donation and the
to be whatever statements contained therein, and not the title that
followed form should be considered in ascertaining the intention of
Effect of Shall be considered not The the donor. (Concepcion v. Concepcion)
imposition imposed (Art 727) obligation
of illegal shall be The prohibition to alienate does not necessarily
or void (Art defeat the inter vivos character of donation.
impossible 1183) (Gestopa v. CA)
conditions
The provision in the deed of donation that the
Mortis causa v. inter vivos donations donated property will remain in the possession of
Mortis causa Inter vivos the donor just goes to show that the donor has given
Made in contemplation Takes effect during the up his naked title of ownership thereto and has
of the donor’s death (Art donor’s lifetime or maintained only the right to use (jus utendi) and
728) independently of the possess (jus possidendi) the subject donated
donor’s death (Art 729) property. The Court also noted the existence of an
The donation must be in It must be executed and acceptance clause which is a mark that the donation
the form of a will, with accepted with the is inter vivos.
all the formalities for the formalities prescribed by
validity of wills, Articles 748 and 749 of The prohibition to alienate does not go against the
otherwise it is void and the Civil Code, except irrevocable character of donation. (Austria-Magat
cannot transfer when it is onerous in v. CA)
ownership. which case the rules on
contracts will apply. Examples of donation mortis causa
The conveyance or Once accepted, becomes 1) Where it was stated in the deed of donation
alienation should be irrevocable that the donor wanted to give the donee
(expressly or by something “to take effect after his death” and
necessary implication) that “this donation shall produce effect only by
revocable ad nutum, i.e., and because of the death of the donor, the
at the discretion of the
property herein donated to pass title after the
grantor or so-called
“donor,”; becomes donor’s death.”
irrevocable only after 2) Where it was provided that the donated
death properties would be given to the donees after
Conveys no title or Conveys ownership the expiration of thirty (30) days from the
ownership before the upon acceptance donor’s death, the grant was made in the future
death of the transferor tense, and the word “inherit” was used. The
The transfer should be Court explained that the verb “to inherit”
void if the transferor
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clearly implies the acquisition of property only
from and after the death of the alleged donors.
3) Where the alleged donation expressly reserved
the right to dispose of the properties conveyed
at any time before his death, and limited the
donation “to whatever property or properties
left undisposed by (the donor) during (his)
lifetime.”
4) Where the circumstances surrounding the
execution of the deed of donation reveal that
the donation could not have taken effect
before the donor’s death and the rights to
dispose of the donated properties and to enjoy
the fruits remained with the donor during her
lifetime.
5) Where it was stated in the deeds of donation
that the donations shall “become effective
upon the death of the donor” and “that in the
event that the donee should die before the
donor, the donation shall be deemed
automatically rescinded and of no further force
and effect.”
6) A donation which purports to be one inter
vivos but withholds from the donee the right
to dispose of the donated property during the
donor’s lifetime is in truth one mortis causa.
XPN: a prohibition to alienate may not
necessarily defeat the inter vivos character of
the donation. In ascertaining the intention of
the donor, all of the deed’s provisions must be
read together. (Gestopa and Austria-Magat
case)
7) If there are no signs contradicting or limiting
the unqualified and unrestricted right of the
donor to alienate the conveyed property in
favor of other persons of her choice at any time
that she should wish to do so, the same is a true
conveyance mortis causa since it indirectly
recognizes the donor’s power to nullify the
conveyance to the alleged donee whatever the
donor wished to do so, for any reason or for
no particular reason at all.
Examples of donation inter vivos
1) When the attending circumstances in the
execution of the subject deed demonstrated the
intent of the donor to transfer the ownership
over the properties upon its execution since
prior to the execution of the donation inter
vivos, the donor spouses already executed
three donations mortis causa.
2) The fact that the donee accepted the donation
is an indication that the donation is inter vivos
because donations mortis causa are not
required to be accepted by the donees during
their lifetime.
3) Where the donation expressly provides that it
is irrevocable although there are provisions in
the deed which state that the same will only
take effect upon the death of the donor and
Property | VENTEROSO
that there is prohibition to alienate, encumber,
dispose, or sell the same.
4) Where the donation expressly declares that it is
irrevocable and the owner makes reservation
for himself, during his lifetime, of the owner’s
share of the fruits or produce, the deed is a
donation inter vivos although it provides that
the donation shall become effective after the
death of the donor.
5) When the deed of donation provides that the
donor will not dispose or take away the
property donated (thus making the donation
irrevocable), he is in effect making a donation
inter vivos.
6) Where the power to indirectly revoke is hedged
in by the specification that the donor could
dispose of the property only to satisfy her
needs, the donation must be held to partake of
the nature of a conveyance inter vivos.
RATIONALE: It appears incompatible with
the grantor’s freedom to revoke a true
conveyance mortis causa, a faculty that is
essentially absolute and discretionary, whether
its purpose should be to supply her needs or to
make a profit, or have no other reason than a
change of volition on the part of the grantor-
testator.
Article 734
The donation is perfected from the moment the
donor knows of the acceptance by the donee. (623)
Perfection of donation
Like any other contract, donation also follows the
theory of cognition. The donation is perfected from
the moment the donor knows of the acceptance by the
donee. Before notice of the acceptance, the offeror is
not bound and may withdraw the offer of donation.
For a contract to arise, the acceptance must be made
known to the offeror. Accordingly, the acceptance
can be withdrawn or revoked before it is made
known to the offeror. (Jardine Davis v. CA)
Acceptance is indispensable
Without acceptance, the donation is not perfected. The
rationale behind the requirement of acceptance is that
nobody is obliged to receive a benefit against his will.
Effects of acceptance
1) the donee becomes the absolute owner of the
property donated, (CJ Yulo & Sons vs.
Roman Catholic) notwithstanding the
condition imposed by the donee. (Quijada v.
CA)
2) Once the donation is accepted, it is generally
considered irrevocable.
3) upon acceptance by the donee, the donor can
no longer withdraw, and he can be compelled
to comply with his offering or to deliver the
things he wanted to donate. (Manresa)
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4) The donation, however, may be made
revocable upon the fulfillment of resolutory
conditions, or may be revoked only for the
reasons provided in Articles 760, 764 and 765
of the Civil Code.
Article 746 of the New Civil Code requires that the
“acceptance must be made during the lifetime of the
donor and of the donee.” This article, however, must
be read in conjunction with the provisions of Articles
734 and 1323 of the New Civil Code.

When the Municipality’s acceptance of the donation
was made known to the donor, the former became
the new owner of the donated property — donation
being a mode of acquiring and transmitting
ownership — notwithstanding the condition
imposed by the donee.
Article 746. Acceptance must be made during the
lifetime of the donor and of the donee. (n)
Article 734. The donation is perfected from the
moment the donor knows of the acceptance by the
donee. (623)

In this case, that resolutory condition is the Article 1323. An offer becomes ineffective upon the
construction of the school. It has been ruled that death, civil interdiction, insanity, or insolvency of
when a person donates land to another on the either party before acceptance is conveyed. (n)
condition that the latter would build upon the land a
school, the condition imposed is not a condition CHAPTER 2
precedent or a suspensive condition but a resolutory Persons Who May Give or Receive a Donation
one.
Article 735
The donor may have an inchoate interest in the
All persons who may contract and dispose of their
donated property during the time that ownership of
property may make a donation. (624)
the land has not reverted to her. Such inchoate
interest may be the subject of contracts including a
Article 736
contract of sale. The donor may have an inchoate
Guardians and trustees cannot donate the property
interest in the donated property during the time that
entrusted to them. (n)
ownership of the land has not reverted to her. Such
inchoate interest may be the subject of contracts
Article 737
including a contract of sale.
The donor's capacity shall be determined as of the
time of the making of the donation. (n)
The consummation, however, of the perfected
contract is another matter. It occurs upon the
Article 738
constructive or actual delivery of the subject matter
All those who are not specially disqualified by law
to the buyer when the seller or her successorsin-
therefor may accept donations. (625)
interest subsequently acquires ownership thereof.
Such circumstance happened in this case when
Article 739
petitioners — who are Trinidad Quijada’s heirs and
The following donations shall be void:
successors-in-interest — became the owners of the
subject property upon the reversion of the
(1) Those made between persons who were guilty of
ownership of the land to them. Consequently,
adultery or concubinage at the time of the donation;
ownership is transferred to respondent Mondejar
(2) Those made between persons found guilty of the
and those who claim their right from him. Article
same criminal offense, in consideration thereof;
1434 of the New Civil Code supports the ruling that
(3) Those made to a public officer or his wife,
the seller’s “title passes by operation of law to the
descendants and ascendants, by reason of his office.
buyer.” This rule applies not only when the subject
matter of the contract of sale is goods, but also to
In the case referred to in No. 1, the action for
other kinds of property, including real property.
declaration of nullity may be brought by the spouse
(Quijada v. CA)
of the donor or donee; and the guilt of the donor
and donee may be proved by preponderance of
When the donation is subject to the condition that evidence in the same action. (n)
the done should construct or build a structure on the
donated property, the donation is subject to a Article 740
resolutory condition. It is not correct to say that the Incapacity to succeed by will shall be applicable to
structure has to be constructed before the donation donations inter vivos. (n)
becomes effective, that is, before thedone can
become the owner of the land, otherwise, it would Article 741
be invading the property rights of the donor. Upon Minors and others who cannot enter into a contract
the non-fulfillment of the condition, the donation may become donees but acceptance shall be done
may be revoked and all the rights already acquired by through their parents or legal representatives. (626a)
the donee shall be deemed lost and extinguished.
(Clemente v. Republic) Article 742
Donations made to conceived and unborn children
Time for making acceptance may be accepted by those persons who would legally
represent them if they were already born. (627)
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Article 743
Donations made to incapacitated persons shall be
void, though simulated under the guise of another
contract or through a person who is interposed.
(628)
Article 744
Donations of the same thing to two or more
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons. (n)
Article 745
The donee must accept the donation personally, or
through an authorized person with a special power
for the purpose, or with a general and sufficient
power; otherwise, the donation shall be void. (630)
Article 746
Acceptance must be made during the lifetime of the
donor and of the donee. (n)
Capacity to donate
The donor's capacity shall be determined as of the
time of the making of the donation. (Art 737)
Article 746. Acceptance must be made during the
lifetime of the donor and of the donee. (n)
Article 734. The donation is perfected from the
moment the donor knows of the acceptance by the
donee. (623)
Article 1323. An offer becomes ineffective upon the
death, civil interdiction, insanity, or insolvency of
either party before acceptance is conveyed. (n)
If the donor is capacitated at the time he makes the
donation his subsequent incapacity by reason of civil
interdiction, insanity or insolvency before acceptance
is conveyed will render the offer ineffective, thus
preventing the perfection of the donation.
The rule on double sales finds no relevance in an
ordinary donation where the law requires the donor to
have ownership of the thing or the real right he donates
at the time of its perfection since a donation constitutes
a mode, not just a title in an acquisition and
transmission of ownership.
Donations cannot comprehend future property
Article 751. Donations cannot comprehend future
property.
By future property is understood anything which the
donor cannot dispose of at the time of the donation.
(635)
Donations Sale
Cannot comprehend Parties may sell future
future property things
Property | VENTEROSO
Donor must be the Seller must be the
owner at the time of owner at the
the donation consummation stage
only and not the
perfection of the sale
Donor
GR: All persons who may contract and dispose of
their property may make a donation. (Art 735)
1) Capacity to contract
2) Capacity to dispose
XPN: Guardians and trustees cannot donate the
property entrusted to them. (Art 736)
The burden of proving such incapacity rests upon
the person who alleges it. If no sufficient proof to
this effect is presented, capacity will be presumed.
Thus, where the donor, at the time of the execution
of the deeds of donation covering numerous
properties, was already at an advanced age of 75,
afflicted with dementia, not necessarily in the pinkest
of health since she was then, in fact, admitted to the
hospital, the same had the effects of impairing her
brain or mental faculties so as to considerably affect
her consent, and that fraud or undue influence
would have been employed in order to procure her
signature on the questioned deeds rendering the
same voidable (Lavarez v. Guevarra)
Double donations (Art 744)
Being a mode of acquiring and transmitting ownership
or other real rights, a donation once perfected would
deny the valid execution of a subsequent inconsistent
donation (unless perhaps if the prior donation has
provided a suspensive condition which still pends
when the later donation is made).
Donee
GR: All those who are not specially disqualified by law
therefor may accept donations. (Art 738)
XPNs:
Conceived child – subject to the rule in Art 41 and 742
Article 41. For civil purposes, the foetus is
considered born if it is alive at the time it is
completely delivered from the mother's womb.
However, if the foetus had an intra-uterine life of
less than seven months, it is not deemed born if
it dies within twenty-four hours after its complete
delivery from the maternal womb. (30a)
Article 742. Donations made to conceived and
unborn children may be accepted by those
persons who would legally represent them if
they were already born. (627)
Capacity
Donor Donee
Capacity to act – the Juridical capacity – the
power to do acts with fitness to be the subject
legal effects of legal relations
Minors
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Minors and others who cannot enter into a contract obliged to make the notification and notation of
may become donees but acceptance shall be done which article 749 speaks. (631)
through their parents or legal representatives. (Art 741)
Article 748
Persons disqualified to become donees The donation of a movable may be made orally or in
1) Those who were guilty of adultery or writing.
concubinage at the time of the donation; (Art
An oral donation requires the simultaneous delivery
739, 1)
of the thing or of the document representing the
o the action for declaration of nullity may right donated.
be brought by the spouse of the donor
or donee; and the guilt of the donor If the value of the personal property donated
and donee may be proved by exceeds five thousand pesos, the donation and the
preponderance of evidence in the acceptance shall be made in writing. Otherwise, the
same action. donation shall be void. (632a)
o NO PREVIOUS CRIMINAL
CONVICTION IS NECESSARY Article 749
2) Those who were found guilty of the same In order that the donation of an immovable may be
criminal offense, if the donation is made in valid, it must be made in a public document,
consideration thereof; (Art 739, 2) specifying therein the property donated and the
value of the charges which the donee must satisfy.
o Principal by inducement and principal
by direct participation
The acceptance may be made in the same deed of
o PREVIOUS CRIMINAL donation or in a separate public document, but it
CONVICTION IS NECESSARY shall not take effect unless it is done during the
3) Public officers or their spouses, descendants lifetime of the donor.
and ascendants, if the donation is made by
reason of their office; (Art 739, 3) If the acceptance is made in a separate instrument,
4) Those who are incapacitated to succeed by will; the donor shall be notified thereof in an authentic
(Art 740) form, and this step shall be noted in both
o Art 1027 instruments. (633)
5) The spouses, if the donation is between them
and made during the marriage, except Formalities in donation
moderate ones given on the occasion of any Donation Other contracts
family rejoicing; and (Art 87, FC) Art 748 and 749 Art 1321
o Applies to all property regime Mandatory in character; The person making the
6) Those who are living together as husband and hence, the offeror offer may fix the time,
wife without a valid marriage, if the donation is (donor) may not place, and manner of
prescribe different acceptance, all of which
between them and made during their
formalities in accepting a must be complied.
cohabitation. (Art 87, FC) donation other than
o At the very least, cohabitation is the those provided in said
public assumption by a man and a articles.
woman of the marital relation, and Applies only to donation
dwelling together as man and wife, inter vivos which are
thereby holding themselves out to the simple or remuneratory;
public as such. (Bitangcor v. Tan) applies also to donation
propter nuptias
Manner of acceptance
1) Must follow the forms (Art 748, 749) – Donation propter nuptias
OTHERWISE, VOID 1) it must be made before the celebration of the
2) The donee must accept the donation marriage;
o personally, or 2) it must be made in consideration of the
o through an authorized person with a marriage; and
special power for the purpose, or 3) it must be made in favor of one or both of the
o with a general and sufficient power future spouses.
(Art 745) – OTHERWISE, VOID o Donor – third persons or the future
3) Acceptance must be made during the lifetime spouses
of the donor and of the donee. (Art 746) o Donee – either of the future spouses
or both of them
Article 747
Persons who accept donations in representation of Personal property
others who may not do so by themselves, shall be 1) 5,000 or less – may be made orally or in writing
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o If made orally – There must be
SIMULTANEOUS DELIVERY
OF THE THING OR THE
DOCUMENT
o Otherwise, VOID
2) More than 5,000 –
o Acceptance – IN WRITING
o Donation – IN WRITING
Where the alleged subject of donation was the
purchase money in a contract of sale in the amount
of P3,297,800, the Court held that the donation must
comply with the mandatory requirements of Article
748.
Petitioners could not brush aside the fact that a
donation must comply with the mandatory formal
requirements set forth by law for its validity. Since
the subject donation is the purchase money, Art. 748
of the New Civil Code is applicable. Accordingly, the
donation of money equivalent to P3,297,800 as well
as its acceptance should have been in writing. It was
not. Hence, the donation is invalid for
noncompliance with the formal requisites prescribed
by law. (Lentfer v. Jurgen Wolff)
Real property
1) both the donation and the acceptance must be
embodied in a public instrument, although
not necessarily embodied in a single
document;
2) the real property donated and the value of the
charges which the donee is required to satisfy
must be specified in the deed of donation;
3) if the acceptance is embodied in a separate
public document, the donor shall be notified
thereof in an authentic form and such step shall
be noted in both instruments of donation and
acceptance.
Registration is not necessary for the validity of
All the foregoing requisites must be complied with,
donation
otherwise, the donation shall be void.
Public instrument/document
A deed of donation acknowledged before a notary
public is a public instrument.
Notification and notation
Title to immovable property does not pass from the
donor to the donee by virtue of a deed of donation
until and unless it has been accepted in a public
instrument and the donor duly notified thereof. It is
well-settled that if the notification and notation are
not complied with, the donation is void. (Sumipat
v. Banga)
if an acceptance is made in a separate public writing
the notice of the acceptance must be noted not only
in the document containing the acceptance but also
in the deed of donation.
Property | VENTEROSO
It is well-settled that if the notification and notation
are not complied with, the donation is void.
(Republic v. Guzman)
The purpose of the formal requirement for
acceptance of a donation is to ensure that such
acceptance is duly communicated to the donor.
However, a strict and literal adherence to the
requirement of “notation” in Article 749 of the
Civil Code should be avoided if such will result
not in justice to the parties but conversely a
distortion of their intentions. Thus, if the donor
was not unaware of the acceptance for she in fact
confirmed it later and requested that the donated
land be not registered during her lifetime, the Court
held that it cannot in conscience declare the
donation ineffective simply because there is no
notation for that would be placing too much stress
on mere form over substance. (Pajarillo v. IAC)
The purpose of the formal requirement for
acceptance of a donation is to ensure that such
acceptance is duly communicated to the donor.
In the case at bar, a school building was immediately
constructed after the donation was executed.
Respondents had knowledge of the existence of the
school building put up on the donated lot through
the efforts of the Parents-Teachers Association of
Barangay Kauswagan. It was when the school
building was being dismantled and transferred to the
new site and when ViceMayor Wilfredo Palma was
constructing a house on the donated property that
respondents came to know of the Deed of
Exchange. The actual knowledge by respondents of
the construction and existence of the school building
fulfilled the legal requirement that the acceptance of
the donation by the donee be communicated to the
donor. (Republic v. Silim)
It is enough, between the parties to a donation of an
immovable property, that the donation be made in a
public instrument but, in order to bind third
persons, the donation must be registered in the
Registry of Property. (Shopper’s Paradise v.
Roque)
Such registration in the Office of the Register of
Deeds or in the Assessor’s Office is not necessary
for the donation to be considered valid and official.
(Florencio v. De Leon)
CHAPTER 3
Effect of Donations and Limitations Thereon
Article 750
The donation may comprehend all the present
property of the donor, or part thereof, provided he
reserves, in full ownership or in usufruct, sufficient
means for the support of himself, and of all relatives
who, at the time of the acceptance of the donation,
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are by law entitled to be supported by the donor.
Without such reservation, the donation shall be
reduced in petition of any person affected. (634a)
Article 751
Donations cannot comprehend future property.
By future property is understood anything which the
donor cannot dispose of at the time of the donation.
(635)
Article 752
The provisions of article 750 notwithstanding, no
person may give or receive, by way of donation,
more than he may give or receive by will.
The donation shall be inofficious in all that it may
exceed this limitation. (636)
Extent of donation
GR: A donor may donate all his property or part
thereof.
XPNs:
1) He cannot donate future property;
Future property - anything which the donor
cannot dispose of at the time of the donation.
(Art 751). The phrase “at the time of the
donation” in this article must not be given its
literal meaning since the requirement that the
donor must be the owner of the property
donated attaches only at the time of the
perfection of the donation and not prior
thereto.
Art. 97. Either spouse may dispose by will of
his or her interest in the community
property. (n)
* prior to the liquidation of the absolute
community or conjugal partnership, the
interest of each spouse in the community
property or conjugal assets is inchoate, a mere
expectancy, which constitutes neither a legal
nor an equitable estate, and does not ripen into
title until it appears that there are assets in the
community as a result of the liquidation and
settlement.
XPN of XPN: In donation propter nuptias
between future spouses, the Family Code
allows a donation of future property between
the spouses. The donation of future property
partakes of the nature of a testamentary
provision and, as such, it is governed by the
provisions on testamentary succession and
the formalities of wills.
Donation propter nuptias (Art 82-87,
Family Code)
1) Donation made by the spouses to each
other
2) Donation made by a third person
Property | VENTEROSO
Chapter 2. Donations by Reason of Marriage
Art. 82. Donations by reason of marriage are
those which are made before its celebration,
in consideration of the same, and in favor of
one or both of the future spouses. (126)
Art. 83. These donations are governed by
the rules on ordinary donations established
in Title III of Book III of the Civil Code,
insofar as they are not modified by the
following articles. (127a)
Art. 84. If the future spouses agree upon a
regime other than the absolute community
of property, they cannot donate to each
other in their marriage settlements more
than one-fifth of their present property. Any
excess shall be considered void.
Donations of future property shall be
governed by the provisions on testamentary
succession and the formalities of wills.
(130a)
Art. 85. Donations by reason of marriage of
property subject to encumbrances shall be
valid. In case of foreclosure of the
encumbrance and the property is sold for
less than the total amount of the obligation
secured, the donee shall not be liable for the
deficiency. If the property is sold for more
than the total amount of said obligation, the
donee shall be entitled to the excess. (131a)
Art. 86. A donation by reason of marriage
may be revoked by the donor in the
following cases:
(1) If the marriage is not celebrated or
judicially declared void ab initio except
donations made in the marriage settlements,
which shall be governed by Article 81;
(2) When the marriage takes place without
the consent of the parents or guardian, as
required by law;
(3) When the marriage is annulled, and the
donee acted in bad faith;
(4) Upon legal separation, the donee being
the guilty spouse;
(5) If it is with a resolutory condition and the
condition is complied with;
(6) When the donee has committed an act of
ingratitude as specified by the provisions of
the Civil Code on donations in general.
(132a)
Art. 87. Every donation or grant of
gratuitous advantage, direct or indirect,
between the spouses during the marriage
shall be void, except moderate gifts which
the spouses may give each other on the
occasion of any family rejoicing. The
prohibition shall also apply to persons living
together as husband and wife without a valid
marriage. (133a)
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He cannot donate future The donation is VOID

Donation between Donation by a third property
spouses person to spouses He must reserve, in full The donation is NOT
Art 84 (2) Art 751 ownership or in VOID but subject only
Donation of future Donation of future usufruct, sufficient to a corresponding
property is allowed property is prohibited means for support reduction
Governed by the Governed by the laws on He cannot give by Inofficious donations
provisions on donation donation more than he are NOT VOID
testamentary succession can give by will although they may be
and the formalities of subjected to a
wills corresponding reduction
or revocation, as the case
2) He must reserve, in full ownership or in may be, if there is
usufruct, sufficient means for the support of impairment of the
o himself, and legitime of the
compulsory heirs of the
o of all relatives who, at the time of the
donor.
acceptance of the donation, are by
law entitled to be supported by him;
Article 753
o EFFECT: if the donor fails to make When a donation is made to several persons jointly,
such reservation, the donation is not it is understood to be in equal shares, and there shall
void but subject only to a be no right of accretion among them, unless the
corresponding reduction at the donor has otherwise provided.
instance of “any person affected” and
only to the extent necessary for the The preceding paragraph shall not be applicable to
support of the donor and his relatives donations made to the husband and wife jointly,
referred to in Article 750 of the Civil between whom there shall be a right of accretion, if
Code. the contrary has not been provided by the donor.
(637)
Art. 195. Subject to the provisions of the
succeeding articles, the following are Article 754
obliged to support each other to the The donee is subrogated to all the rights and actions
whole extent set forth in the preceding which in case of eviction would pertain to the donor.
article: The latter, on the other hand, is not obliged to
(1) The spouses; warrant the things donated, save when the donation
(2) Legitimate ascendants and is onerous, in which case the donor shall be liable for
descendants; eviction to the concurrence of the burden.
(3) Parents and their legitimate
children and the legitimate and The donor shall also be liable for eviction or hidden
illegitimate children of the latter; defects in case of bad faith on his part. (638a)
(4) Parents and their illegitimate
children and the legitimate and Article 755
illegitimate children of the latter; and The right to dispose of some of the things donated,
(5) Legitimate brothers and sisters, or of some amount which shall be a charge thereon,
whether of full or half-blood (291a) may be reserved by the donor; but if he should die
without having made use of this right, the property
Art. 196. Brothers and sisters not or amount reserved shall belong to the donee. (639)
legitimately related, whether of the
full or half-blood, are likewise bound to Article 756
support each other to the full extent set The ownership of property may also be donated to
forth in Article 194, except only when one person and the usufruct to another or others,
the need for support of the brother or provided all the donees are living at the time of the
sister, being of age, is due to a cause donation. (640a)
imputable to the claimant’s fault or
negligence. (291a) Article 757
Reversion may be validly established in favor of only
the donor for any case and circumstances, but not in
3) He cannot give by donation more than he can
favor of other persons unless they are all living at the
give by will. (INOFFICIOUS time of the donation.
DONATIONS)
o those which prejudice the legitime of Any reversion stipulated by the donor in favor of a
the compulsory heirs third person in violation of what is provided in the
preceding paragraph shall be void, but shall not
EXCEPTION EFFECT IF nullify the donation. (614a)
OBSERVED
Article 758
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When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause
does not contain any declaration to the contrary, the
former is understood to be liable to pay only the
debts which appear to have been previously
contracted. In no case shall the donee be responsible
for the debts exceeding the value of the property
donated, unless a contrary intention clearly appears.
(642a)
Article 759
There being no stipulation regarding the payment of
debts, the donee shall be responsible therefor only
when the donation has been made in fraud of
creditors.
The donation is always presumed to be in fraud of
creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to
the donation. (643)
Donations made to several donees jointly [Art 753]
1) The donees are entitled to equal portions
2) If donees are not husband and wife
GR: There is no right of accretion between
them
XPN: When expressly provided
3) If donees are husband and wife
GR: There is right of accretion between them
XPN: The donor provides the contrary
4) If the donation is made to the spouses jointly
in a regime of conjugal partnership of
gains, and
o with designation of determinate
shares - Their respective shares shall
pertain to them as his or her own
exclusive property.
o Without designation - They shall
share and share alike, without prejudice
to the right of accretion
Art. 113. Property donated or left by
will to the spouses, jointly and with
designation of determinate shares,
shall pertain to the donee-spouses as
his or her own exclusive property,
and in the absence of designation,
share and share alike, without
prejudice to the right of accretion
when proper. (150a)
Right of accretion
When there is a right of accretion among several
donees, the share of the one who did not accept or
could not accept or who died before he had accepted
shall go the other donees in proportion to the interest
of each in the donation.
In such a situation, the acceptance by any of the
donees of the donation shall result in its perfection
thereby preventing the donor from revoking that part
of the donation corresponding to the share of the one
who did not accept or who died prior to his acceptance.
Property | VENTEROSO
No warranty against eviction [Art 754]
GR: The donor does not warrant the thing donated
against eviction.
XPNs:
1) when there is bad faith on the part of the
donor, in which case he is also liable for
hidden defects; or
2) when the donation is onerous, in which case
the donor shall be liable up to the amount
equal to the burden
Reservation of power to dispose
1) reservation to all properties – donation
mortis causa
2) reservation of some of the properties – Art
755
3) reservation of some of the properties but
the donor died without having made use of
the right – Art 755; the property or amount
reserved shall belong to the done
Separate donation of ownership and usufruct [Art
756]
The donor may donate separately the ownership of the
property to one person and the usufruct to another or
others subject only to the condition that all the donees
must be living at the time of the donation.
Reversion [Art 757]
1) The donor may validly provide for the
reversion or return of the property donated to
him for any case and circumstances.
2) The donor may establish a reversion in favor
of a third person provided that such person is
living at the time of the donation. – if
violated,
o Provision for reversion – VOID
o Donation – VALID
Payment of donor’s debts
With stipulation [Art 758]
1) the donee is understood to be liable to pay only
the debts which appear to have been
previously contracted; and
2) the liability of the donee is limited only to the
value of the property donated.
Without stipulation [Art 759]
The donee shall be responsible therefore only when the
donation has been made in fraud of creditors.
o the liability of the donee is limited only to the
value of the property donated.
Presumption of fraud
Donation is presumed to be in fraud of creditors when
at the time of the donation the donor did not reserve
sufficient property to pay his debts prior to the
donation.
CHAPTER 4
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Revocation and Reduction of Donations
Article 760
Every donation inter vivos, made by a person having
no children or descendants, legitimate or
legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced as
provided in the next article, by the happening of any
of these events:
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate
children, even though they be posthumous;
(2) If the child of the donor, whom the latter
believed to be dead when he made the donation,
should turn out to be living;
(3) If the donor subsequently adopt a minor
child. (644a)
Article 761
In the cases referred to in the preceding article, the
donation shall be revoked or 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. (n)
Article 762
Upon the revocation or reduction of the donation
by the birth, appearance or adoption of a child, the
property affected shall be returned or its value if
the donee has sold the same.
If the property is mortgaged, the donor may
redeem the mortgage, by paying the amount
guaranteed, with a right to recover the same from
the donee.
When the property cannot be returned, it shall be
estimated at what it was worth at the time of the
donation. (645a)
Article 763
The action for revocation or reduction on the
grounds set forth in article 760 shall prescribe after
four years from the birth of the first child, or
from his legitimation, recognition or adoption,
or from the judicial declaration of filiation, or
from the time information was received
regarding the existence of the child believed dead.
This action cannot be renounced, and is
transmitted, upon the death of the donor, to his
legitimate and illegitimate children and descendants.
(646a)
Article 764
The donation shall be revoked at the instance of
the donor, when the donee fails to comply with
any of the conditions which the former imposed
upon the latter.
In this case, the property donated shall be returned
to the donor, the alienations made by the donee and
the mortgages imposed thereon by him being void,
with the limitations established, with regard to third
Property | VENTEROSO
persons, by the Mortgage Law and the Land
Registration laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be
transmitted to the heirs of the donor, and may be
exercised against the donee's heirs. (647a)
Article 765
The donation may also be revoked at the instance of
the donor, by reason of ingratitude in the following
cases:
(1) 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;
(2) 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 the
act has been committed against the donee himself,
his wife or children under his authority;
(3) If he unduly refuses him support when the
donee is legally or morally bound to give support to
the donor. (648a)
Article 766
Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and
mortgages effected before the notation of the
complaint for revocation in the Registry of
Property shall subsist.
Later ones shall be void. (649)
Article 767
In the case referred to in the first paragraph of the
preceding article, the donor shall have a right to
demand from the donee the value of property
alienated which he cannot recover from third
persons, or the sum for which the same has been
mortgaged.
The value of said property shall be fixed as of the
time of the donation. (650)
Article 768
When the donation is revoked for any of the
causes stated in article 760, or by reason of
ingratitude, or when it is reduced because it is
inofficious, the donee shall not return the fruits
except from the filing of the complaint.
If the revocation is based upon noncompliance
with any of the conditions imposed in the donation,
the donee shall return not only the property but
also the fruits thereof which he may have
received after having failed to fulfill the
condition. (651)
Article 769
The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This
action prescribes within one year, to be counted
from the time the donor had knowledge of the
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fact and it was possible for him to bring the
action. (652)
Article 770
This action shall not be transmitted to the heirs of
the donor, if the latter did not institute the same,
although he could have done so, and even if he
should die before the expiration of one year.
Neither can this action be brought against the heir
of the donee, unless upon the latter's death the
complaint has been filed. (653)
Article 771
Donations which in accordance with the provisions
of article 752, are inofficious, bearing in mind the
estimated net value of the donor's property at
the time of his death, shall be reduced with regard
to the excess; but this reduction shall not prevent
the donations from taking effect during the life
of the donor, nor shall it bar the donee from
appropriating the fruits.
For the reduction of donations the provisions of this
Chapter and of articles 911 and 912 of this Code
shall govern. (654)
Article 772
Only those who at the time of the donor's death
have a right to the legitime and their heirs and
successors in interest may ask for the reduction or
inofficious donations.
Those referred to in the preceding paragraph
cannot renounce their right during the lifetime of
the donor, either by express declaration, or by
consenting to the donation.
The donees, devisees and legatees, who are not
entitled to the legitime and the creditors of the
deceased can neither ask for the reduction nor
avail themselves thereof. (655a)
Article 773
If, there being two or more donations, the
disposable portion is not sufficient to cover all of
them, those of the more recent date shall be
suppressed or reduced with regard to the excess.
(656)
Reduction or revocation of donations
Reduction Revocation
affects only a part or a affects the entire
portion thereof donation
Arts 750, 752, 760 Arts 760, 764, 765, 752
Revocation
GR:
As a rule, once the donation is accepted, it is
generally considered irrevocable. (Gestopa v. CA)
XPNs:
1) the subsequent appearance of children;
(Art 760)
Adoption
Property | VENTEROSO
Minor Legal age
Art 760 Art 752
Rule on subsequent Rule on inofficious
appearance of donations may apply
children or adoption
will apply.
o there shall be a provisional
liquidation of the estate of the donor
at the time of the birth, appearance or
adoption of a minor child for the
purpose of determining the donor’s
estate and the child’s legitime or the
whole estate of the donor at the time of
the birth, appearance or adoption of a
child
o FREE PORTION – LEGITIME =
AMOUNT OF
REVOCATION/REDUCTION
Q: If, at the time of the subsequent appearance
of a child under Article 760, the entire donation
is found to be within the free portion of the
donor’s estate, in which case, the donation is
neither reduced nor revoked, and later on the
donor died after suffering financial reverses,
may such donation be revoked if found to be
inofficious at the time of the donor’s death?
A: Yes, in this situation, the ground for the
revocation of the donation is Article 752 of the
New Civil Code.
Q: Let us consider, however, a donation which
is either reduced or revoked because it is found
to be inofficious at the time of the subsequent
appearance of a child under Article 760, but
later on the donor dies a richer man and, at the
time of his death, the previous donation could
have been accommodated in the free portion,
may the donee be entitled to the return of the
thing donated or its value?
A: No, the ground for the revocation of the
donation is Article 760, which is an altogether
different ground from that provided in Article
752.
2) the non-fulfillment of charges imposed in
the donation; (Art 764)
When the donation is subject to the condition that
the done should construct or build a structure on the
donated property, the donation is subject to a
resolutory condition. It is not correct to say that
the structure has to be constructed before the
donation becomes effective, that is, before the
donee can become the owner of the land, otherwise,
it would be invading the property rights of the
donor. Upon the non-fulfillment of the condition,
the donation may be revoked and all the rights
already acquired by the donee shall be deemed lost
and extinguished.
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This general rule however cannot be applied
considering the different set of circumstances
existing in the instant case. More than a reasonable
period of fifty (50) years has already been allowed
petitioner to avail of the opportunity to comply with
the condition even if it be burdensome, to make the
donation in its favor forever valid. But,
unfortunately, it failed to do so. Hence, there is no
more need to fix the duration of a term of the
obligation when such procedure would be a mere
technicality and formality and would serve no
purpose than to delay or lead to an unnecessary and
expensive multiplication of suits. Moreover, under
Art. 1191 of the Civil Code, when one of the
obligors cannot comply with what is incumbent
upon him, the obligee may seek rescission and the
court shall decree the same unless there is just cause
authorizing the fixing of a period. In the absence of
any just cause for the court to determine the period
of the compliance, there is no more obstacle for the
court to decree the rescission claimed. (Clemente v.
Republic)
In the case of donation, the accrual of the cause of
action is from the expiration of the time within
which the donee must comply with the
conditions or obligations of the donation. In the
instant case, however, it must be noted that the
subject donation fixed no period within which the
donee can comply with the condition of donation.
As such, resort to Article 1197 of the New Civil
Code is necessary. Said article provides that if the
obligation does not fix a period, but from its nature
and the circumstances it can be inferred that a period
was intended, the courts may fix the duration
thereof.
However, resort to Art 1997 will no longer be
applicable if more than a reasonable period has
already been allowed to the donee to avail of the
opportunity to comply with the condition even if it
be burdensome, to make the donation in its favor
forever valid, but the done still failed to do so.
(Secretary v. Heirs of Dulay)
While Article 764 uses the term “conditions,”
what are actually being referred to in said article
are the obligations or charges imposed by the
donor on the donee. (Tolentino)
Conflicting rulings as to whether Art 764 or
Art 1144 will apply
Article 764 of the New Civil Code does not
apply to onerous donations in view of the
specific provision of Article 733 providing
that onerous donations are governed by the
rules on contracts. Invoking the provisions
of Article 733, the Court further held that in
determining the prescriptive period of an
action to revoke an onerous donation the
rules on contracts and the general rules
on prescription and not the rules on
donations are applicable to onerous
donations.
Property | VENTEROSO
The prescriptive period of an action for
revocation of an onerous donation by reason
of non-compliance with the
condition/obligation imposed is ten (10)
years counted from the time within which
the donee must comply with the
conditions/obligations of the donation. (De
Luna v. Abrigo)
Article 764 is applicable to onerous
donations, except when the parties have
agreed on automatic revocation. (Roman
Archbishop of Manila v. CA)
In Dolar v. Municipality of Dumangas,
the Court did not make a categorical
ruling as to whether or not Article 764
applies to an action for the revocation of
an onerous donation. The Court simply
ruled that the action had already prescribed
whether the applicable legal provision is
Article 764 or Article 1144 of the Civil Code.
The four-year prescriptive period for the
revocation of donation provided under
Article 764 of the New Civil Code does not
apply. Since the deed of donation is
considered a written contract, it is
governed instead by Article 1144 of the
New Civil Code, which provides that the
prescriptive period for an action arising from
a written contract is 10 years form the time
the cause of action accrues.
In the case of donation, the accrual of the
cause of action is from the expiration of the
time within which the done must comply
with the conditions or obligations of the
donation. (Secretary v. Heirs of Dulay) -
CONTROLLING
Onerous donations with automatic revocation clause
Under Article 1306 of the New Civil Code, the
parties to a contract have the right "to establish
such stipulations, clauses, terms and conditions
as they may deem convenient, provided they are
not contrary to law, morals, good customs,
public order or public policy." Paragraph 11 of
the "Revival of Donation Intervivos, has provided
that "violation of any of the conditions (herein) shall
cause the automatic reversion of the donated area to
the donor, his heirs, . . ., without the need of
executing any other document for that purpose and
without obligation on the part of the DONOR".
Said stipulation not being contrary to law, morals,
good customs, public order or public policy, is valid
and binding upon the foundation who voluntarily
consented thereto.
It is clear, however, that judicial intervention is
necessary not for purposes of obtaining a
judicial declaration rescinding a contract
already deemed rescinded by virtue of an
agreement providing for rescission even without
judicial intervention, but in order to determine
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whether or not the recession was proper. (De Luna
v. Abrigo)
When a deed of donation, as in this case, expressly
provides for automatic revocation and reversion of
the property donated, the rules on contract and the
general rules on prescription should apply, and not
Article 764 of the Civil Code. Since Article 1306 of
said Code authorizes the parties to a contract to
establish such stipulations, clauses, terms and
conditions not contrary to law, morals, good
customs, public order or public policy, we are of the
opinion that, at the very least, that stipulation of the
parties providing for automatic revocation of the
deed of donation, without prior judicial action for
that purpose, is valid subject to the determination of
the propriety of the rescission sought. Where such
propriety is sustained, the decision of the court
will be merely declaratory of the revocation, but
it is not in itself the revocatory act.
It is our view that Article 764 was intended to
provide a judicial remedy in case of non-fulfillment
or contravention of conditions specified in the deed
of donation if and when the parties have not agreed
on the automatic revocation of such donation upon
the occurrence of the contingency contemplated
therein. (Roman Catholic Archbishop v. CA)
It is only when the donee denies the rescission
or challenges its propriety that the court can
intervene to conclusively settle whether the
resolution was proper. (Zamboanga v. Plagata)
SUMMARY:
1) without automatic revocation clause – Art
764 applies – THERE MUST BE A
JUDICIAL ACTION
2) with automatic revocation clause – Art 1306
applies; NO JUDICIAL ACTION IS
NEEDED. THE DONATION CAN
BE UNILATERALLY RESCINDED
XPN: only when the donee denies the
rescission or challenges its propriety
3) the ingratitude of the donee; and (Art 765)
Grounds
1) 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;
2) 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 the act has been committed
against the donee himself, his wife or children
under his authority;
3) If he unduly refuses him support when the
donee is legally or morally bound to give
support to the donor. (648a)
We agree with the CA that since the donation
imposed on the donee the burden of redeeming the
Property | VENTEROSO
property for ₱15,000.00, the donation was onerous.
As an endowment for a valuable consideration, it
partakes of the nature of an ordinary contract; hence,
the rules of contract will govern and Article 765 of
the New Civil Code finds no application with respect
to the onerous portion of the donation.
Insofar as the value of the land exceeds the
redemption price paid for by the donee, a donation
exists, and the legal provisions on donation apply.
(Calanasan v. Dolorito)
4) the fact that the donation is inofficious. (Art
752)
Subsequent Inofficious
appearance donations
Art 760 Art 752
Inofficiousness is to Inofficiousness
be determined determined only at
during the lifetime the time of death of
of the donor the donor.
How to determine inofficiousness of donations
In determining whether the donation is
inofficious or not, recourse must be had to the
rules established by the Civil Code for the
determination of the legitime and, by
extension, of the disposable portion, taking
into consideration the estimated net value of
the donor’s property at the time of his death.
1) determination of the value of the
property which remains at the time of the
testator’s death;
2) determination of the obligations, debts,
and charges which have to be paid out or
deducted from the value of the property
thus left;
3) the determination of the difference
between the assets and the liabilities,
giving rise to the hereditary estate;
4) the addition to the net value thus found,
of the value, at the time they were made, of
donations subject to collation; and
5) the determination of the amount of the
legitimes by getting from the total thus
found the portion that the law provides as
the legitime of each respective compulsory
heir.
FREELY DISPOSABLE PORTION =
LEGITIME – NET VALUE OF THE
HEREDITARY ESTATE
FREE PORTION – LEGITIME = AMOUNT
OF REVOCATION/REDUCTION
Reduction
1) that the donor did not reserve sufficient
property for his own and his family’s support;
(Art 750)
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2) by the subsequent appearance of children; and

(Art 760)
3) that the donation is inofficious. (Art 752)
Effects of reduction or revocation of donation
Grounds in Art 760
1) The property affected shall be returned, or if
it cannot be returned, at least its value;
2) If the property is mortgaged, the donor may
redeem the mortgage, by paying the amount
guaranteed, with a right to recover his payment
from the donee. When the property cannot be
returned, it shall be estimated at what it was
worth at the time of the donation.
3) The donee shall return the fruits of property
affected only from the filing of the complaint.
Grounds in Article 764
1) shall be revoked at the instance of the donor
2) the property donated shall be returned to the
donor
3) The fruits which may have been received after
having failed to fulfill the condition must be
returned (Art 768)
4) the alienations made by the donee and the
mortgages imposed thereon by him are void,
with the limitations established, with regard to
third persons, by the Mortgage Law and the
Land Registration laws.
Grounds in Article 765
1) The donor shall have a right to demand from
the donee the value of property alienated which
he cannot recover from third persons, or the
sum for which the same has been mortgaged.
(Art 767)
2) The alienations and mortgages effected before
the notation of the complaint for revocation in
the Registry of Property shall subsist. Later
ones shall be void. (Art 766)
3) The donee shall not return the fruits except
from the filing of the complaint. (Art 768)
Grounds in Article 752
1) This reduction shall not prevent the donations
from taking effect during the life of the donor
(Art 771)
2) Nor shall it bar the donee from appropriating
the fruits (Art 771)
Prescriptive period
Grounds in Art 760
Four years reckoned from the birth of the first child,
or from his legitimation, recognition or adoption, or
from judicial declaration of filiation, or from the time
information was received regarding the existence of the
child believed dead. (Art 763)
Grounds in Article 765
One year, to be counted from the time the donor had
knowledge of the fact and it was possible for him to
bring the action
Grounds in Article 752
In Imperial vs. Court of Appeals, we held that
"donations, the reduction of which hinges upon the
allegation of impairment of legitime (as in this case),
are not controlled by a particular prescriptive period,
for which reason, we must resort to the ordinary
rules of prescription. Under Article 1144 of the
Civil Code, actions upon an obligation created by
law must be brought within ten years from the time
the right of action accrues. Thus, the ten-year
prescriptive period applies to the obligation to
reduce inofficious donations, required under Article
771 of the Civil Code, to the extent that they impair
the legitime of compulsory heirs.
From when shall the ten-year period be reckoned?
In Mateo vs. Lagua, involving the reduction, for
inofficiousness, of a donation propter nuptias, we
held that the cause of action to enforce a legitime
accrues upon the death of the donor-decedent.
Clearly so, since it is only then that the net estate may
be ascertained and on which basis, the legitimes may
be determined. (Santos v. Alana)
Waiver
Grounds in Art 760
Not subject to waiver or renunciation (Art 763)
Grounds in Article 765
Cannot be renounced in advance (Art 769)
Transmission
Grounds in Art 760
Transmitted, upon the death of the donor, to his
legitimate or illegitimate children and descendants, if
the donor dies within the four-year prescriptive period
(Art 763)
Grounds in Article 764
May be transmitted to the heirs of the donor, and may
be exercised against the donee's heirs. (Art 764)
Grounds in Article 765
Shall not be transmitted to the heirs of the donor, if
the latter did not institute the same, although he could
have done so, and even if he should die before the
expiration of one year. Neither can this action be
brought against the heir of the donee, unless upon the
latter's death the complaint has been filed. (Art 770)
♥ END ♥

Grounds in Article 764

Four years from the noncompliance with the
condition
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FROM THE ANNOTATIONS OF RABUYA, PARAS AND LECTURES OF ATTY PUSTA
Art 760
Effects 1)The property affected shall be
returned, or if it cannot be returned, at
least its value;
2)If the property is mortgaged, the
donor may redeem the mortgage, by
paying the amount guaranteed, with a
right to recover his payment from the
donee. When the property cannot be
returned, it shall be estimated at what it
was worth at the time of the donation.
3)The donee shall return the fruits of
property affected only from the filing of
the complaint.
Four years reckoned from the birth of the
first child, or from his legitimation,
recognition or adoption, or from judicial
declaration of filiation, or from the time
information was received regarding the
Prescriptive existence of the child believed dead. (Art
period 763)
Not subject to waiver or renunciation (Art
Waiver 763)
Transmitted, upon the death of the
donor, to his legitimate or illegitimate
Transmissibility children and descendants, if the donor
of right of dies within the four-year prescriptive
action period (Art 763)
118
Grounds
Art 764 Art 765 Art 752
1)shall be revoked at the instance of the 1)The donor shall have a right to demand 1)This reduc on shall not prevent the
donor from the donee the value of property donations from taking effect during the
2)the property donated shall be alienated which he cannot recover from life of the donor (Art 771)
returned to the donor third persons, or the sum for which the 2)Nor shall it bar the donee from
3)The fruits which may have been same has been mortgaged. (Art 767) appropriating the fruits (Art 771)
received after having failed to fulfill the 2)The aliena ons and mortgages
condition must be returned (Art 768) effected before the notation of the
4)the aliena ons made by the donee complaint for revocation in the Registry of
and the mortgages imposed thereon by Property shall subsist. Later ones shall be
him are void, with the limitations void. (Art 766)
established, with regard to third persons, 3)The donee shall not return the fruits
by the Mortgage Law and the Land except from the filing of the complaint.
Registration laws. (Art 768)
Four years from the noncompliance with One year, to be counted from the time the Ten years from the death of the donor-
the condition donor had knowledge of the fact and it decedent.
was possible for him to bring the action
Cannot be renounced in advance (Art 769)
Property | VENTEROSO
May be transmitted to the heirs of the Shall not be transmitted to the heirs of
donor, and may be exercised against the the donor, if the latter did not institute
donee's heirs. (Art 764) the same, although he could have done
so, and even if he should die before the
expiration of one year. Neither can this
action be brought against the heir of the
donee, unless upon the latter's death the
complaint has been filed. (Art 770)