• Property, Right to Property, and Ownership:

• 1. Property is an economic concept [ mass of things or objects useful to human activity] and necessary to life.

• 2. Right to Property is the juridical tie by virtue of which a person has the exclusive power to receive or obtain all

the benefits from a thing, except those prohibited or restricted by law or by the rights of others.

• 2. Distinction between right to property [ vinculum between a man and the thing] and ownership [ mass of rights

over the thing] is more historical than actual.

• Concept of things and property:

• 1. Things are all objects that exist, and can be of some use to man. This is more generic and extensive.

Property are all those that are already appropriated or are in the possession of man.

• 2. To be juridically considered as a thing or property, an object must have the following requisites: 1) Utility [

capacity to satisfy human wants] 2) Individuality [ or, substance or a separate and autonomous existence] and 3)

Susceptibility of being appropriated [ equivalent to occupation, which is the willfull apprehension of a corporeal

object which has no owner, with intent to acquire its ownership].

Common Things:

Things which, as a whole mass, are not susceptible of appropriation e.g. sun, stars, the core of the earth, the sea,

and others called common things, are not things or property in the juridical concept.

RIGHTS AS PROPERTY:

Things, include not only material objects, but also rights [ real rights- power belonging to a person over a specific

thing, without a passive subject individually determined against whom such right may be personally exercised. It gives to a

person direct and immediate juridical power over a thing, which is susceptible of being exercised, not only against a

determinate person, but against the whole world] [ personal rights- the power belonging to a person to demand of

another, as a definite passive subject, the fulfillment of a prestation to give, to do, or not to do. Properly called right of

obligation, or simply obligation] although these are relations and not objects.

DIFFERENCES IN REGIME BETWEEN MOVABLE AND IMMOVABLES:

• a. Solemnity is greater in acts relative to immovables, e.g. donations

• b. Adverse Possession is longer for immovables.

• c. Publicity and Recording are more important for immovables re: double sale, mortgage of properties.

• d. Capacity to alienate, greater capacity is usually required for immovables.

• e. Venue is usually determined by the location of the immovable.

IMMOVABLES AND MOVABLES:

a. Par. 1. [ (1) Land, buildings, roads and constructions of all kinds adhered to the soil]

1. Separate treatment by the parties of building from the land on which it stands does not change the immovable

character of the building.

1. While the building of strong materials in which the rice-cleaning machinery was installed by the "Compañia Agricola

Filipina" was real property, and the mere fact that the parties seem to have dealt with it separate and apart from the

land on which it stood in no wise changed its character as real property. It follows that neither the original registry in

the chattel mortgage registry of the instrument purporting to be a chattel mortgage of the building and the machinery

installed therein, nor the annotation in that registry of the sale of the mortgaged property, had any effect whatever so far

as the building was concerned. ( LEUNG YEE VS. STRONG MACHINERY 37 PHIL. 644)

2. Buildings on rented land- there are authorities that buildings or constructions placed on land by lessee do not become

immovable, where agreement gives the lessee the right to remove the building and improvements.

3. Building or house sold to be demolished immediately, French court held the sale to be involving movable property.

ANTONIO PUNZALAN et.al. vs. REMEDIOS LACSAMANA et.al. G.R. No. L-55729 MARCH 28, 1993

FACTS:

Petitioner is owner of land situated in Tarlac which he mortgaged to PNB in 1963. This property was foreclosed. While

the land was still in possession of the petitioner, he was allowed by PNB to construct a warehouse. In 1978, deed of sale

was executed between PNB and herein respondent Lacsamana.

Petitioner filed a suit impugning the validity of the sale of the building in the CFI of Rizal. Respondent PNB filed a

motion to dismiss on the ground of improper venue because the suit involves a real property.

HELD:

The warehouse claimed to be owned by petitioner is an immovable or real property as provided in article 415(1) of the

Civil Code. Buildings are always immovable under the Code. 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 separate and apart

from the land on which it stood in no wise changed its character as immovable property

4. Par. 2 [(2) Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an

immovable ] on ungathered fruits. Under the Chattel Mortgage Law, ungathered fruits have the nature of personal

property.

5. Par. 3.[ (3) 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] rex vinta ( Roman Law), immovable by incorporation.

NOTE: Under this kind, ownership of the thing is attached i.e. whether it is the owner who placed it there is the owner

or not is immaterial.

6. Par. 4. [ (4) 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]–

immovable by incorporation and destination

4.a. objects must be placed by the owner or by his agent. It becomes immobilized only when placed in the

tenement by the owner of the tenement ( Davao Sawmill Co. vs. Castillo 61 Phil. 709).

4.b. When placed by a mere holder, e.g. tenant, usufructuary, or one with a temporary right over the immovable,

objects do not become immovable property, unless the person acts as agent of the owner ( Davao Sawmill

case, supra).

7. Par. No. 5. [5) 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]

5.a. immovable by destination, depends upon their being destined for use in the industry or work in the tenement (

BH. Berkenkotter. vs. Co Unjieng 61 Phil. 663)

5.b. Additional machinery installed by the owner of a sugar central to improve milling capacity is realty ( Berkenkotter

vs. Cu Unjieng e Hijos, 61 Phil. 663).

Mindanao Bus. Company vs. City Assessor 116 Phil. 501, no realty tax is due on machineries of a transportation

company, such as welder, boring machine, lathe machine, etc. sitting on a cement or wooden platform, because they are

not absolutely essential to its transportation business which is not carried on in a building or specified land.

Movables:

General Test of Movable Character:

1) Whether it can be carried from place to place, 2) whether the change of location can be effected without injury

to an immovable to which the object may be attached, and 3) whether the object is not included in any of the ten

paragraphs of Article 415.

By Special Provision:

e.g. Act No. 1508 recognizes that growing crops are personal property and may be the object of chattel mortgage see.

Section 7.

Forces of Nature:

e.g. electricity, gas, oxygen, light, rays.

Consumables and Non-Consumables:

Consumable are those which cannot be used in a manner appropriate to their nature without being consumed.

Non-consumables are those not consumed by use.

*Fungibles and Non-Fungibles:

1. Distinction between Fungible and Non-fungible. Fungible, quality of being fungible depends upon their

possibility ( because of their nature or the will of the parties), of being substituted by others of the same kind,

not having a distinct individuality ( e.g. ten heads of cattle, or 100 copies of a newspaper of a given date)

Non-fungibles are those which have their own individuality and DO NOT admit of substitution ( e.g. ten

bottles of wine in my room)

Note: This is a classification based on PURPOSE

PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS

PUBLIC DOMINION

PRIVATE OWNERSHIP

Dominion and Ownership:

1. Public dominion does not carry the idea of ownership; property of public dominion is not owned by the State, but

pertains to the State, which as territorial sovereign exercises certain juridical prerogatives over such property.

2. Ownership of property is in the social group, whether national, provincial, or municipal. 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 an object of appropriation, either by the State or by private persons.

Outside Commerce of Man:

Rule: Property of public dominion OUTSIDE the commerce of man.

Principles:

1) They cannot be alienated or leased or otherwise be the subject matter of contracts.

2.) cannot be acquired by prescription against the State.

3.) not subject to attachment and execution

4.) cannot be burdened by voluntary easement.

CASES:

Municipality of Cavite vs. Rojas, 30 Phil. 20 [The said Plaza Soledad being a promenade for public use, the municipal

council of Cavite could not in 1907 withdraw or exclude from public use a portion thereof in order to lease it for the sole

benefit of the defendant Hilaria Rojas. In leasing a portion of said plaza or public place to the defendant for private use the

plaintiff municipality exceeded its authority in the exercise of its powers by executing a contract over a thing of which it

could not dispose, nor is it empowered so to do.

* Ignacio v. Director of Lands, 108 Phil. 335

On January 25, 1950, Ignacio filed an application for the registration of a parcel of land (mangrove), situated in barrio

Gasac, Navotas, Rizal, with an area of 37,877 square meters. Later, he amended his application by alleging among

others that he owned the parcel applied for by right of accretion.

HELD:

The article cited is clearly inapplicable because it refers to accretion or deposits on the banks of rivers, while the

accretion in the present case was caused by action of the Manila Bay.

ON “FORESHORE” LANDS:

“Under Section 2, Article XII of the 1987 Constitution, the foreshore and submerged areas of Manila Bay are part

of the "lands of the public domain, waters x x x and other natural resources" and consequently "owned by the

State." As such, foreshore and submerged areas "shall not be alienated," unless they are classified as

"agricultural lands" of the public domain. 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” ( See:

FRANCISCO I. CHAVEZ vs. PUBLIC ESTATES AUTHORITY G.R. No. 133250 July 9, 2002)

* Laurel vs. Garcia G.R. No. 92013 July 25, 1990

1. The subject property in this case is one of the four (4) properties in Japan acquired by the Philippine

government under the Reparations Agreement entered into with Japan on May 9, 1956.

2. Petitioner Laurel asserts that the Roppongi property and the related lots were acquired as part of the

reparations from the Japanese government for diplomatic and consular use by the Philippine government. Vice-

President Laurel states that the Roppongi property is classified as one of public dominion, and not of private

ownership under Article 420 of the Civil Code.

ISSUE: Can the Roppongi property and others of its kind be alienated by the Philippine Government?

HELD:

1. The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated by the terms of the

Reparations Agreement and the corresponding contract of procurement which bind both the Philippine government and

the Japanese government. As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be

alienated.

2. Applying Articles 419, 420, the SC ruled: 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.

ON WHETHER OR NOT THE INTENTION OF THE GOVERNMENT HAS BEEN CHANGED BECAUSE THE

LOT HAS BEEN IDLE FOR SOME YEARS? OR, WHETHER IT HAS 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 (Cebu Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 (19751). 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 (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).

We emphasize, however, that an abandonment of the intention to use the Roppongi property for public service

and to make it patrimonial property under Article 422 of the Civil Code must be definite. Abandonment cannot be

inferred from the non-use alone specially 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 (See Heirs of Felino Santiago v.

Lazaro, 166 SCRA 368 [1988]). Abandonment must be a certain and positive act based on correct legal premises.

*Manila International Airport Authority vs. Court of Appeals et.al. G.R. No. 155650 July 20, 2006

On 1 October 2001, MIAA filed with the Court of Appeals an original petition for prohibition and injunction, with

prayer for preliminary injunction or temporary restraining order. The petition sought to restrain the City of Parañaque from

imposing real estate tax on, levying against, and auctioning for public sale the Airport Lands and Buildings.

RULING:

First, MIAA is not a government-owned or controlled corporation but an instrumentality of the National

Government and thus exempt from local taxation. Second, the real properties of MIAA are owned by the

Republic of the Philippines and thus exempt from real estate tax.

a. Airport Lands and Buildings are of Public Dominion

The Airport Lands and Buildings of MIAA are property of public dominion and therefore owned by the State or

the Republic of the Philippines.

The Airport Lands and Buildings are devoted to public use because they are used by the public for international

and domestic travel and transportation. The fact that the MIAA collects terminal fees and other charges from the

public does not remove the character of the Airport Lands and Buildings as properties for public use. The

operation by the government of a tollway does not change the character of the road as one for public use. S

PHILIPPINE PORTS AUTHORITY vs. CITY OF ILOILO G.R. No. 109791 July 14, 2003

“Concededly, "ports constructed by the State" are properties of the public dominion, as Article 420 of the Civil

Code enumerates these as properties "intended for public use." It must be stressed however that what is being taxed in

the present case is petitioner’s warehouse, which, although located within the port, is distinct from the port itself.

. In Light Rail Transit Authority v. Central Board of Assessment Appeals et al.,22

petitioner therein similarly sought

an exemption from real estate taxes on its passenger terminals, arguing that said properties are considered as

part of the "public roads," which are classified as property of public dominion in the Civil Code.23

We ruled therein

that:

…[T]he properties of petitioner are not exclusively considered as public roads being improvements placed upon

the public road, and this [separable] nature of the structure in itself physically distinguishes it from a public road.

Considering further that carriageways or passenger terminals are elevated structures which are not freely

accessible to the public, vis-à-vis roads which are public

On subdivision road lots:

WOODRIDGE SCHOOL INC. et.al. vs. ARB CONSTRUCTION INC. G.R. No. 157285 February 16, 2007

In the case of Abellana, Sr. v. Court of Appeals, the Court held that “the road lots in a private subdivision are private

property, hence, the local government should first acquire them by donation, purchase, or expropriation, if they are to be

utilized as a public road.” Otherwise, they remain to be private properties of the owner-developer.

Contrary to the position of petitioners, the use of the subdivision roads by the general public does not strip it

of its private character. The road is not converted into public property by mere tolerance of the subdivision

owner of the public’s passage through it. To repeat, “the local government should first acquire them by donation,

purchase, or expropriation, if they are to be utilized as a public road.”

Likewise, we hold the trial court in error when it ruled that the subject road is public property pursuant to Section 2

of Presidential Decree No. 1216.

OWNERSHIP

Definition of Ownership:

1. The independent and general power of a person over a thing for purposes recognized by law and within the

limits established thereby.

2. A relation in private law by virtue of which a thing pertaining to one person is completely subjected to his will in

everything not prohibited by public law or the concurrence with the rights of another.

Rights of an Owner:

Right to enjoy, right to dispose, and the right to recover or vindicate

Enjoy: right to possess, right to use, and right to the fruits

Dispose: right to consume or destroy or abuse, right to encumber or alienate

Actions to Recover:

1. For personal property- Replevin under Rule 60, Rules of Court

2. For Real Property: Forcible Entry and Unlawful Detainer under Rule 70 , 1997 Rules of Civil Procedure:

Accion Publiciana- the plenary right to recover possessesion.

Accion Reinvidicatoria- an action to recover ownership.

Roman Law:

Jus possidendi-right to possess

Jus utendi-right to use

Just fruendi-right to the fruits

-natural, industrial,and civil

Jus abutendi-right to consume

Jus disponendi-right to dispose

Jus vindicandi-right to recover

ACTIONS TO RECOVER:

Can an action reinvindicatoria be filed even if the plaintiff is in actual possession of the property?

Answer: Yes

IGLESIA NI CRISTO et.al. vs. HON. THELMA PONFERRADA et.al. G.R. No. 168943 OCTOBER 27, 2006

Facts:

In October 2001, Enrique Santos et.al filed a complaint for quieting of title and/or accion reinvidincatoria against Iglesia

ni Cristo. They alleged that they are owner of a 936 sq.m. parcel of land in Tandang Sora, Quezon City which they

inherited from Enrique Sr.

Iglesia filed a motion to dismiss contending that the action has prescribed. It appears that it was able to obtain a

TCT over the same parcel of land way back in 1984-the year when the title was issued in their favor.

In support of its contention, Iglesia contended that the accion reinvindicatoria presupposes that the plaintiff is not

in actual possession of the property he seeks to recover. Thus, this is true in this case because it (iglesia) was in

possession of the property in 1984 when the title was issued to it.

HELD:

Petitioner’s claim that it had been in actual or material possession of the property since 1984 when TCT No. 321744

was issued in its favor is belied by the allegations in the complaint that respondents had been in actual and material

possession of the property since 1961 up to the time they filed their complaint on October 24, 2001.

Admittedly, respondents interposed the alternative reinvindicatory action against petitioner. An accion reinvindicatoria

does not necessarily presuppose that the actual and material possession of the property is on defendant and that plaintiff

seeks the recovery of such possession from defendant. It bears stressing that an accion reinvindicatoria is a remedy

seeking the recovery of ownership and includes jus possidendi, jus utendi, and jus fruendi as well. It is an action whereby

a party claims ownership over a parcel of land and seeks recovery of its full possession. Thus, the owner of real property

in actual and material possession thereof may file an accion reinvindicatoria against another seeking ownership over a

parcel of land including jus vindicandi, or the right to exclude defendants from the possession thereof.

In this case, respondents filed an alternative reinvindicatory action claiming ownership over the property and the

cancellation of TCT No. 321744 under the name of petitioner. In fine, they sought to enforce their jus utendi and jus

vindicandi when petitioner claimed ownership and prevented them from fencing the property.

Limitations on the right of ownership:

1. Limitations imposed for the benefit of the State- police power [ e.g. SECTION. 16. ( Republic Act No. 7160) General

Welfare. - eminent domain; and Taxation

2. Limitations imposed by the Law- legal easement of waters [Art. 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) ] or legal easement of right of way [Art. 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]

3. Limitations imposed by the owner- e.g. lease/pledge

4. Limitations imposed by the grantor- donor may prohibit partition [ e.g. Art. 1083. Every co-heir has a right to

demand the division of the estate unless the testator should have expressly forbidden its partition, in which case

the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to

prohibit division applies to the legitime.

Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership

is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon

petition of one of the co-heirs. ](1051a) ]

Principle of “Self-Help” ( ARTICLE 429 of the Civil Code)

1. This authorizes the lawful possessor to USE FORCE, not only to prevent a threatened unlawful invasion or usurpation

thereof.

2. Qualification to the rule that a person should not take the law in his own hands. It is lawful to repel force by force.

3. Actual invasion of property may consist of a mere disturbance of possession or of a real dispossession. Mere

disturbance of possession [ force may be used against it at any time as long as it continues, even beyond the

prescriptive period for an action of forcible entry e.g. if a ditch is opened by Pedro in the land of Juan, Juan may

close it or cover it by force any time.]

4. If, however, invasion consists of real dispossession [ force to REGAIN possession can be used only

immediately after the dispossession] In other words, once the usurper’s possession has become firm by the

lapse of time, the lawful possessor must resort to the competent authority to recover his property.

Case:

* German Management & Services, Inc. vs. Hon. Court of Appeals G.R. No. 76216 and 76217 September

14, 1989.

Private respondents, claiming to be mountainside farmers of Sitio Inarawan, San Isidro, Antipolo, Rizal and members

of the Concerned Citizens of Farmer's Association, alleged that petitioner deprived private respondents of their property

without due process of law by: (1) forcibly removing and destroying the barbed wire fence enclosing their farmholdings

without notice; (2) bulldozing the rice, corn, fruit bearing trees and other crops of private respondents by means of force,

violence and intimidation, in violation of P. D. 1038 and (3) trespassing, coercing and threatening to harass, remove and

eject private respondents from their respective farmholdings in violation of P.D. Nos. 316, 583, 815, and 1028.

HELD:

In the case at bar, it is undisputed that at the time petitioner entered the property, private respondents were

already in possession thereof. There is no evidence that the spouses Jose were ever in possession of the subject

property. On the contrary, private respondents' peaceable possession was manifested by the fact that they even planted

rice, corn and fruit bearing trees twelve to fifteen years prior to petitioner's act of destroying their crops.

Both the Municipal Trial Court and the Regional Trial Court have rationalized petitioner's drastic action of

bulldozing and destroying the crops of private respondents on the basis of the doctrine of self-help enunciated in Article

429 of the New Civil Code. Such justification is unavailing because the doctrine of self-help can only be exercised at the

time of actual or threatened dispossession which is absent in the case at bar. When possession has already been lost,

the owner must resort to judicial process for the recovery of property. This is clear from Article 536 of the Civil Code

which states, "(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 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 things.

EXTENT OF OWNERSHIP and REGALIAN DOCTRINE ( Article 437 of the Civil Code)

Extent of Ownership:

Extent of ownership: Horizontally, ownership extends up to the boundaries; vertically, extends below the surface and

above it to the extent required by the economic interest or utility to the owner, in relation to the exploitation that may

be made of the property. ( e.g. land traversed by power lines)

CASES:

NATIONAL POWER CORPORATION vs. LUCMAN IBRAHIM et.al. G.R. No. 168732, June 29, 2007

“Thus, the ownership of land extends to the surface as well as to the subsoil under it. In Republic of the Philippines v.

Court of Appeals, this principle was applied to show that rights over lands are indivisible and, consequently, require a

definitive and categorical classification, thus:

“The Court of Appeals justified this by saying there is “no conflict of interest” between the owners of the surface

rights and the owners of the sub-surface rights. This is rather strange doctrine, for it is a well-known principle that the

owner of a piece of land has rights not only to its surface but also to everything underneath and the airspace above it up

to a reasonable height. Under the aforesaid ruling, the land is classified as mineral underneath and agricultural on the

surface, subject to separate claims of title. This is also difficult to understand, especially in its practical application.

Under the theory of the respondent court, the surface owner will be planting on the land while the mining locator will be

boring tunnels underneath. The farmer cannot dig a well because he may interfere with the mining operations below and

the miner cannot blast a tunnel lest he destroy the crops above. How deep can the farmer, and how high can the miner go

without encroaching on each others rights? Where is the dividing line between the surface and the sub-surface rights?

The Court feels that the rights over the land are indivisible and that the land itself cannot be half agricultural and half

mineral. The classification must be categorical; the land must be either completely mineral or completely agricultural.

HIDDEN TREASURE

Concept of Hidden Treasure:

1. Consist of money, jewels, or precious objects [ movables only – Tolentino e.g. prehistoric tomb excluded except the

movables found therein], and 2) they are hidden and unknown, such that their finding is a real discovery.

2. Owner unknown e.g. only if the thing has been considered lost and the owner has already abandoned it.

Who are “strangers”:

Anyone who has absolutely no right over the immovable or the thing in which the treasure is found but INCLUDES also

lessee, usufructuary, or a paid laborer working for the owner of the land [ provided he has not been engaged precisely to

look for hidden treasure]

Finder entitled to share:

A finder is entitled to one-half (1/2) , provided:

finding is by chance ( not purposely sought) see however: opinion of Jurado where finding by chance may also

include cases “by a stroke of good fortune”. ( a finder ordered by the landowner to search is not entitled)

finder is not a co-owner of the property where it is found

finder not a trespasser

finder not an agent of the landowner

finder not married under the absolute community or conjugal partnership otherwise his share belongs to the

community [Article 117 (4), Family Code: The share of either spouse in the hidden treasure which the law awards to the

finder or owner of the property where the treasure is found formed part of conjugal partnership properties]

RIGHT OF ACCESSION

Accession:

Accession is the right of a property to everything which is:

a) produced thereby ( accession discreta)

b) incorporated or attached thereto, either naturally or artificially

b.1. natural accession ( accession natural)

b.2. artificial accession ( accession artificial or accession industrial)

Classification of Accession:

A. Discreta: natural, industrial, and civil fruits

B. Continua: may refer to immovables or movables

- immovables: alluvion ( deposits), force of river ( avulsion), change of river bed, formation of islands, and building,

planting and sowing.

- movables: conjunction or adjunction; specification; and, commixtion

BASIS OF ACCESSION:

1. Accession discreta-based on principles of justice[ it is only “just” that the owner of a thing should also own whatever it

produces, unless there is some special reason for a contrary resolution]

2. Accession continua-based on necessity and utility [ it being practical that the owner of the principal thing should own

the new things instead of a co-ownership being established , e.g. giving riparian the right to own accretion which they

gradually receive from the effects of the current of the waters]

Basic principles governing the doctrine of accession:

The owner of a thing belongs the extension or increase of such thing

This extension of the right of ownership is realized, as a general rule, under the juridical principle that the accessory

follows the principal.

This incorporation of the accessory with the principal, saving the exceptions provided by law, is effected only when two

things are so united that they cannot be separated without injuring or destroying the juridical nature of one of

them.

CONCEPT OF “FRUITS” ( Article 441)

Concept of Fruits:

All products of or income from a thing, in accordance with its economic purpose, so long as they do not bring about any

essential alteration thereof.

Kinds of Fruits:

1. natural fruits [ spontaneous products of the soil, young, and other products of animals]

2. industrial fruits [ produced by lands of any kind through cultivation or labor];

How about “cultivated trees”? Strictly speaking, they are not fruits for they are really immovables as long as they are

attached to the land, and they may produce fruits in themselves.

But they may be considered as “fruits” when they are expressly cultivated or exploited to carry on an industry ( Paras,

citing Manresa).

3. civil fruits [ rents of buildings, price of leases of lands, other property and the amount of perpetual or life annuities or

other similar income]

Exceptions to Rule [ that the owner owns the fruits]:

1. Possession in Good Faith by another [ fruits belong to the possessor in good faith].

2. Usufruct [ usufructuary gets the fruits]

3. Lease [ lessee gets the fruits from the property directly, although the owner receives civil fruits in the form of rents paid

by the lessess];

4. Antichresis [creditor gets the fruits] [Art. 2132. By the contract of antichresis the 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. (1881) ]

RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY

Rule:

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.

Rights of Owner of Materials: ( Article 447)

1. Owner of the materials used by another does not become a part owner of the thing constructed with his materials. He

is only entitled to recover their value.

2. According to Tolentino, the owner cannot return the materials instead of paying their value.

When property is Alienated:

When property is alienated and the improvements thereon, action of owner of materials shall be against owner of the

land and not against the vendee.( presumably because consideration for the sale already includes value of

improvements)

ARTICLE 448

Reason for the provision:

The reason for this article is to prevent the creation of a forced co-ownership.

RULE: Owner of the land on which anything has been built, planted, or sown in good faith has OPTION:

a) to acquire the improvements after payment of the proper indemnity [Art. 546. Necessary expenses shall be

refunded to every possessor; but only the possessor in good faith may retain the thing until he has been reimbursed

therefor.

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the person who

has defeated him in the possession having the option of refunding the amount of the expenses]

or of paying the increase in value which the thing may have acquired by reason thereof. (453a) ] [Art. 548. Expenses for

pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he may remove the ornaments with

which he has embellished the principal thing if it suffers no injury thereby, and if his successor in the possession does not

prefer to refund the amount expended. (454) ]

b) to oblige builder or planter to pay for the land and the sower the proper rent.

Who has the “OPTION”:

It is the owner of the land which has the option: principle of accession, he is entitled to the ownership of the accessory

thing.

Only permanent constructions are contemplated.

CASE:

Sarmiento vs. Agana 129 SCRA 122

( Owner of land must exercise the option, he can only ask for demolition of improvement, if, after having chosen to

compel builder or planter to buy land, the latter fails to pay).

Application of the Article:

Good faith in building. Applies to a case where one builds, plants, or sows on land in which he believes himself to

have a claim of title. It does not apply where the only interest of the builder, planter, or sower is that of a holder, such

as a tenant.

Balucanag vs. Judge Francisco G.R. No. L-34199, May 30, 1983

( Article 448 does not apply to a case of a Lessee)

But even in the absence of said stipulation, respondent Stohner cannot be considered a builder in good faith.

Article 448 of the Civil Code, relied upon by respondent judge, applies only to a case where one builds on land in

the belief that he is the owner thereof and it does not apply where one's only interest in the land is that of a

lessee under a rental contract.

Floreza vs. Evangelista, 96 SCRA 130 [G.R. No. L-25462 February 21, 1980]

( Said codal provision applies only when the builder, planter, or sower believes he had the right so to build, plant or sow

because he thinks he owns the land or believes himself to have a claim of title.)

Spouses Del Campo vs. Abesia 160 SCRA 379 [G.R. No. L-49219 April 15, 1988.*]

(However, when, as in this case, the co-ownership is terminated by the partition and it appears that the house of

defendants overlaps or occupies a portion of 5 square meters of the land pertaining to plaintiffs which the defendants

obviously built in good faith)

OTHER (NEW) CASES:

PNB vs. DE JESUS G.R. No. 149295 September 23, 2003 { Equally significant is the fact that the building, constructed

on the land by Ignacio, has in actuality been part of the property transferred to petitioner. Article 448, of the Civil Code

refers to a piece of land whose ownership is claimed by two or more parties, one of whom has built some works (or sown

or planted something) and not to a case where the owner of the land is the builder, sower, or planter who then later

loses ownership of the land by sale or otherwise for, elsewise stated, “where the true owner himself is the builder

of works on his own land, the issue of good faith or bad faith is entirely irrelevant.” }

PARILLA et.al. VS. PILAR G.R. No. 167680 November 30, 2006 {Jurisprudence is replete with cases[21]

which

categorically declare that Article 448 covers only cases in which the builders, sowers or planters believe themselves to be

owners of the land or, at least, have a claim of title thereto, but not when the interest is merely that of a holder, such as a

mere tenant, agent or usufructuary. A tenant cannot be said to be a builder in good faith as he has no pretension to be

owner.[22]

In a plethora of cases,[23]

this Court has held that Articles 448 of the Civil Code, in relation to Article 546 of the same

Code, which allows full reimbursement of useful improvements and retention of the premises until reimbursement is

made, applies only to a possessor in good faith, i.e., one who builds on land with the belief that he is the owner thereof. It

does not apply where one’s only interest is that of a lessee under a rental contract; otherwise, it would always be in the

power of the tenant to “improve” his landlord out of his property}

ISMAEL MACASAET et.al. vs. SPOUSES MACASAET G.R. Nos. 154391-92 September 30, 2004

“This Court has ruled that this provision covers only cases in which the builders, sowers or planters believe themselves to

be owners of the land or, at least, to have a claim of title thereto. It does not apply when the interest is merely that of a

holder, such as a mere tenant, agent or usufructuary. From these pronouncements, good faith is identified by the belief

that the land is owned; or that -- by some title -- one has the right to build, plant, or sow thereon.

However, in some special cases, this Court has used Article 448 by recognizing good faith beyond this limited definition.

Thus, in Del Campo v. Abesia,[68] this provision was applied to one whose house -- despite having been built at the time

he was still co-owner -- overlapped with the land of another.[69] This article was also applied to cases wherein a builder

had constructed improvements with the consent of the owner. The Court ruled that the law deemed the builder to be in

good faith.[70] In Sarmiento v. Agana,[71] the builders were found to be in good faith despite their reliance on the consent

of another, whom they had mistakenly believed to be the owner of the land.[72]

Based on the aforecited special cases, Article 448 applies to the present factual milieu. The established facts of this

case show that respondents fully consented to the improvements introduced by petitioners. In fact, because the children

occupied the lots upon their invitation, the parents certainly knew and approved of the construction of the improvements

introduced thereon. Thus, petitioners may be deemed to have been in good faith when they built the structures on those

lots.

Right before Payment:

1. Builder has right of retention. The right of retention extends NOT ONLY to the IMPROVEMENTS, but also to the

LAND.

2. Neither of the parties may bring a reinvindicatory action against the other. Landowner has no right to ask for rents

from the builder.

3.After the owner of the land chooses to compel the builder or planter to pay for the land or the sower the proper

rent, the latter will lose right of retention if he fails to pay as required.

4. In the event of failure of the builder to pay after landowner has opted to sell the land, the latter is entitled to

removal of improvements.

5. If, in the meantime, improvements is gutted by fire, right of retention is extinguished.

Manotok Realty vs. Tecson 164 SCRA 587- Since the improvements have been gutted by fire, and therefore, the basis

for private respondent's right to retain the premises has already been extinguished without the fault of the petitioner, there

is no other recourse for the private respondent but to vacate the premises and deliver the same to herein petitioner.

Filipinas Colleges Inc. vs. Timbang G.R. No L-12812 September 29, 1959 (Upon failure of builder to pay the value of

land, the landowner DOES NOT necessarily become AUTOMATICALLY THE OWNER OF IMPROVEMENTS under

Article 445.)

There is nothing in the language of these two article, 448 and 546, which would justify the conclusion of

appellants that, upon the failure of the builder to pay the value of the land, when such is demanded by the land-

owner, the latter becomes automatically the owner of the improvement under Article 445.

Remedies of the parties are:

1….. and then they decide to leave things as they are and assume the relation of lessor and lessee, and should they

disagree as to the amount of rental then they can go to the court to fix that amount.

2. Court approved the sale of the land and the improvement in a public auction applying the proceeds thereof first to

the payment of the value of the land and the excess, if any, to be delivered to the owner of the house in payment thereof.

Alternatives granted to OWNER OF LAND when Builder etc. in Bad Faith:

1. Appropriate what has been built, planted, or sown in bad faith, without any obligation to INDEMNIFY.

2. Ask the builder, planter, or sower to remove what he has built, planted, or sown.

3. Compel builder or planter to pay the value of the land or the sower the proper rent.

Necessary Expenses: ( Article 452)

As regards necessary expenses, builder, planter, or sower is entitled to be reimbursed, although, he loses the accessory

or improvement.

What are “necessary expenses”?

Necessary expenses are those made for the preservation of the property or thing upon which they have been expended

e.g. dike to preserve from destruction caused by blood.

Conversely, that those that merely “augment” the thing like expenses for the leveling of the land are not necessary

expenses.

RIPARIAN OWNER:

Rule:

Owners of lands adjoining the banks of rivers [RIPARIAN OWNER] belong the accretion which they gradually receive

from the effects of the current of the waters.( alluvion) [accession discreta].

Reason:

Owners adjoining banks of rivers are exposed to floods and other damages due to the destructive force of the waters and

if by virtue of law, they are subject to encumbrances, it is only just that such risks and dangers should in some way be

compensated.

Requisites for “Alluvion”:

1) the deposit be gradual and imperceptible 2) it be made through the effects of the current of the water ( deposits

by human intervention not included) and 3) the land where accretion takes place is adjacent to the banks of rivers.

Ignacio vs. Director of Lands and Valeriano [L-12958 May 30, 1960 May 30, 1960]

( Riparian accretion should be distinguished from the accretion due to sea water. In the latter case, the accretion is a

public land)

De Buyser vs. Director of lands, et al. [G.R. No. L-22763 March 18, 1983] March 18, 1983

( Land formed by accretion from the sea is part of the public domain. It cannot be acquired by adverse possession. It is

outside the commerce of man unless otherwise declared by the executive and legislative branch of the government.)

Grande, et al. vs. Hon. Court of Appeals, et al. [G.R. No. L-17652 June 30, 1962] June 30, 1962

[An accretion to land covered by Torrens title does not automatically become registered land. It must be registered. If not

registered, it is subject to acquisition through prescription by third persons.]

AVULSION: ( Article 459)

Art. 459. Whenever the current of a river, creek or torrent segregates from an estate on its bank a known portion

of land and transfers it to another estate, the owner of the land to which the segregated portion belonged retains

the ownership of it, provided that he removes the same within two years.

Transfer by Other Forces:

A known portion of land may be transferred from one tenement to another by other forces of nature than the current of a

river, e.g. land from a mountain slope rolls down to another tenement. Present article may be applied by analogy.

CHANGE OF RIVER BED:

Rule:

River beds which are abandoned thru 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. 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.

Provision of the Water Code of the Philippines [ PD 1067]:

Art. 58. – When a river or stream suddenly changes its course to traverse private lands, the owner 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 owner 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 therefore is secured from the Secretary of Public Works [ Transportaion and Communication] and

works commenced within two years from the change in the course of the river or stream.,

THREE TYPES OF ACCESSION WITH RESPECT TO MOVABLE PROPERTY:

Adjunction

Mixture ( commixtion or confusion)

Specification

Art. 467. The principal thing, as between two things incorporated, is deemed to be that to which the other has

been united as an ornament, or for its use or perfection. (376)

Criteria to Determine Principal:

Order of Preference in determining which is the principal and which is the accessory: 1. That of the importance or

purpose of the things as stated in this article 2) That of their value 3) That of their volume.

Rules:

1. Owner of accessory thing in bad faith, he shall lose the thing incorporated.

-he shall have obligation to indemnify owner of principal thing.

2. Owner of the principal is the one in bad faith, owner of accessory may choose: 1) compelling principal to pay the

value of accessory thing or 2) thing belonging to him be separated, even if it be necessary to destroy the principal

thing. Damages are available in both cases.

QUIETING OF TITLE ( N)

Quieting of Title- purpose: the quieting of title or removal of a cloud therefrom when there is an apparently valid or

effective instrument or other claim which in reality is void, ineffective, voidable or unenforceable.

Originated from equity jurisprudence reasons: 1) prevention of litigation 2) protection of the true title and possession 3)

real interest of both parties, and that of right and justice, which require that the precise state of the title be known.

Difference between “an action to quiet title” from a suit “ to remove cloud”

To quiet title-an action for the purpose of putting an end to vexatious litigation in respect to the property involved.

To remove cloud-to procure cancellation, delivery of, release of an instrument, encumbrance, or claim constituting a claim

on plaintiff’s title

Application:

1. Applies only in the case of real property.

2. The matter complained of must have prima facie appearance of validity, therefore, when invalid or inefficacious on its

face, an action to remove cloud on title does not exist.

Examples: title procured by fraud, deceit, forged instrument, taxes levied on exempt property etc.

PRESCRIPTIVE PERIOD TO FILE AN ACTION TO QUIET TITLE:

Prescription of the right to quiet title:

Plaintiff is in possession, the ACTION DOES NOT prescribe.

Plaintiff is NOT in possession, the ACTION MAY PRESCRIBE.

Gallar vs. Husain G.R.No. L-20954 May 29, 1967

By the delivery of possession of the land on April 2, 1919 the sale was consummated and title was transferred to the

appellee. Indeed, this action is not for specific performance; all it seeks is to quiet title, 6 to remove the cloud cast on

appellee's ownership as a result of appellant's refusal to recognize the sale made by the predecessor. And, as plaintiff-

appellee is in possession of the land, the action is imprescriptible. 7 Appellant's argument that the action has prescribed

would be correct if they were in possession as the action to quiet title would then be an action for recovery of real property

which must be brought within the statutory period of limitation governing such actions

Caragay-Layno vs. Hon. Court of Appeals G.R. No. 52064 December 26, 1984

Prescription cannot be invoked against JULIANA for the reason that as lawful possessor and owner of the Disputed

Portion, her cause of action for reconveyance which, in effect, seeks to quiet title to the property, falls within settled

Jurisprudence that an action to quiet title to property in one's possession is imprescriptible. Her undisturbed

possession over a period of fifty-two (52) years gave her a continuing right to seek the aid of a Court of equity to

determine the nature of the adverse claim of a third party and the effect on her own title.

THIS IS NOT A REMEDY TO SETTLE A “BOUNDARY DISPUTE”, as held in the case of

ANASTACIA VDA. DE AVILES, ET AL., petitioners, vs. COURT OF APPEALS and CAMILO AVILES, G.R. No.

95748. November 21, 1996

“We agree with respondent Court. The facts presented unmistakably constitute a clear case of boundary dispute, which is

not cognizable in a special civil action to quiet title.

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.

CO-OWNERSHIP:

Concept:

1. Right of common dominion which two or more persons have in a spiritual part of a thing, not materially or physically

divided [ Sanchez Roman]

2. Manifestation of the private right of ownership, which instead of being exercised by the owner in an exclusive manner

over the things subject to it, is exercised by two or more owners and the undivided thing or right to which it refers is one

and the same [ Manresa]

3. Co-ownership is not a real right distinct from ownership, but is a mere form or manifestation of ownership [ De Diego].

Characteristics:

1. plurality of subjects 2. unity of object ( material indivision) and recognition of the ideal or intellectual shares of co-

owners.

relationship of co-owner to his other co-owners is fiduciary in character.

Cases:

While a vendee a retro, under Article 1613 of the Code, "may not be compelled to consent to a partial redemption," the

redemption by one co-heir or co-owner of the property in its totality does not vest in him ownership over it.

Failure on the part of all the co-owners to redeem it entitles the vendee a retro to retain the property and consolidate title

thereto in his name.7 But the provision does not give to the redeeming co-owner the right to the entire property. It does

not provide for a mode of terminating a co-ownership ( Adille vs. Hon. Court of Appeals et.al. G.R. No. 44546 29 January

1988)

"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 in view of their lack of a clear repudiation of the co-ownership, duly communicated to the

petitioners (the other co-owners), private respondents cannot acquire the shares of the petitioners by, prescription. The

record in the Office of the Assessor is not the sufficient repudiation and communication contemplated by the

law. Neither may the Private respondents' possession of the premises militate against Petitioners' claim. After all, co-

owners are entitled to be in possession of the premises.The existence of the co-ownership here argues against the

theory of implied trust, for then a co-owner possesses co-owned property not in behalf of the other co-owners

but in his own behalf. (Mariano vs. De Vega G.R. No. L-59974 March 9, 1987 )

Presumption of Equality ( Shares and Chares):

Share of co-owners in the benefits as well as in the charges shall be proportional to their respective interest. Stipulation to

the contrary shall be void.

There is presumption of equality in the shares.

Limitation on the right of a co-owner to use thing owned in common:

Use only: 1. purpose for which it is intended 2. without prejudice to the interests of the co-ownership and 3. without

preventing others from making use thereof according to their own rights.

Meaning of “purpose for which it is intended”:

What is meant by “purpose for which it is intended”? Agreement of the parties should govern. If there is none, that use for

which it is ordinarily adapted according to its nature ( e.g. house only for living and not to be used as a factory) or use to

which is has been previously devoted.

Principles:

1. Mere tolerance on the part of the co-owners cannot legalize the change in the use of a thing from that intended by the

parties.

2. No prejudice to co-ownership-co-owners agreed to lease, co-owner cannot use without paying rent.

De Guia vs. Court of Appeals G.R. No. 120864. October 8, 2003

“ The right of enjoyment by each co-owner is limited by a similar right of the other co-owners. A co-owner cannot devote

common property to his exclusive use to the prejudice of the co-ownership. Hence, if the subject is a residential house, all

the co-owners may live there with their respective families to the extent possible. However, if one co-owner alone

occupies the entire house without opposition from the other co-owners, and there is no lease agreement, the

other co-owners cannot demand the payment of rent. Conversely, if there is an agreement to lease the house,

the co-owners can demand rent from the co-owner who dwells in the house.”

Right of any co-owner:

ANY ONE CO-OWNER MAY BRING AN ACTION FOR EJECTMENT, DEPARTURE from a previous ruling Palarca vs.

Baguisi 38 Phil. 177

Article 487 of the Civil Code provides, “[a]ny one of the co-owners may bring an action in ejectment.” This article

covers all kinds of actions for the recovery of possession. Article 487 includes forcible entry and unlawful

detainer (accion interdictal), recovery of possession (accion publiciana), and recovery of ownership (accion de

reivindicacion). The summary actions of forcible entry and unlawful detainer seek the recovery of physical possession

only. These actions are brought before municipal trial courts within one year from dispossession (De Guia vs. Court of

Appeals G.R. No. 120864. October 8, 2003)

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. ( ibid).

Suit by one co-owner vs. co-owner:

Co-owner vs. Co-owner.- one co-owner may bring an action even against another co-owner who takes exclusive

possession and asserts ownership in himself alone. Remedy, however, is limited to obtaining recognition of the co-

ownership. He cannot be excluded from possession.

What is “Alteration”:

What constitutes ALTERATION? Alterations is changing the thing from the state in which the others believe it should

remain, or withdraws it from the use to which they desire it to be intended.

Some examples of “acts of alteration”:

1. Sale, donation, or mortgage of the entire property

2. Sale, donation or mortgage of a part of the property but with definite boundaries

3. A voluntary easement

4. Lease of real property

5. Construction of a house on a lot owned in common

6. Contracts of long duration

EFFECT OF AN ILLEGAL ALTERATION:

1) Co-Owner will lose what he has spent

2) Demolition can be compelled

3) Liability for loss and damages

4) Whatever benefits belong to the co-ownership

LEASE OF IMMOVABLE PROPERTY:

1. When lease is recorded with the Registry of Property [Art. 1648. Every lease of real estate may be recorded in the

Registry of Property. Unless a lease is recorded, it shall not be binding upon third persons. (1549a) ], it is not a mere act

of administration.

2. Note also [ Article 1878 (8) To lease any real property to another person for more than one year.] lease of immovable

property- mere majority cannot lease real property for more than one year.

EXTENT OF CO-OWNER’S RIGHT:

A co-owner is full owner of his part and the fruit and benefits pertaining thereto. He may alienate, assign, or mortgage it,

and even substitute another person in its enjoyment.

Before partition, no individual or co-owner can claim title to any definite portion. All that he has is an ideal or

abstract quota or proportionate share in the entire land or thing.

From the foregoing, it may be deduced that since a co-owner is entitled to sell his undivided share, a sale of the

entire property by one co-owner without the consent of the other co-owners is not null and void. However, only

the rights of the co-owner-seller are transferred, thereby making the buyer a co-owner of the property." (

Paulmitan vs. Court of Appeals G. R. No. 61584 November 25, 1992)

Limitation on the “Right” of a Co-Owner:

Limitation: co-owner cannot alienate rights which are purely personal, such as his share in a right to use and habitation.

Right of Redemption of a co-owner:

Art. 1620. A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of

any of them, are sold to a third person. If the price of the alienation is grossly excessive, the redemptioner shall pay only a

reasonable one.

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)

Termination of co-ownership:

1. Consolidation in only one of the owners of all the shares of the others.

2. Destruction of the thing or the loss of the right

3. Prescription in favor of a third person.

4. Partition ( agreement to subdivide is not enough, there must be a subdivision plan drawn and the co-owners actually

occupied the respective portions in the plan and titles issued accordingly).

CASES:

1. "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 in view of their lack of a clear repudiation of the co-ownership, duly communicated to the

petitioners (the other co-owners), private respondents cannot acquire the shares of the petitioners by, prescription. The

record in the Office of the Assessor is not the sufficient repudiation and communication contemplated by the

law. Neither may the Private respondents' possession of the premises militate against Petitioners' claim. After all, co-

owners are entitled to be in possession of the premises.

The existence of the co-ownership here argues against the theory of implied trust, for then a co-owner possesses

co-owned property not in behalf of the other co-owners but in his own behalf.[ Mariano vs. De Vega G.R. No L-

59974 March 9, 1987.]

2. The redemption of the land made by Fanesa did not terminate the co-ownership nor give her title to the entire land

subject of the co-ownership….. Failure on the part of all the co-owners to redeem it entitles the vendee a retro to retain

the property and consolidate title thereto in his name (Supra, art. 1607). But the provision does not give to the

redeeming co-owner the right to the entire property. It does not provide for a mode of terminating a co-ownership."[

Paulmitan vs. Court of Appeals G.R. No. 61584 November 25, 1992.]

POSSESSION:

Concept of Possession

To possess means to have, to actually and physically occupy a thing, with or without a right. In general, it is the holding

of a thing or of a right, whether by material occupation or by the fact that the thing or the right is subjected to the

action of our will.

Distinction between possession and ownership:

Possession and ownership are two different legal concepts. Just as possession is not a definite proof of

ownership, neither is non-possession inconsistent with ownership. Even assuming that petitioners’ allegations are

true, it bears no legal consequence in the case at hand because the execution of the deeds of conveyances is

already deemed equivalent to delivery of the property to respondent, and prior physical delivery or possession is not

legally required.[28] Under Article 1498 of the Civil Code, “when the sale is made through a public instrument, the

execution thereof shall be equivalent to the delivery of the object of the contract, if from the deed the contrary does not

appear or cannot be inferred.” Possession is also transferred, along with ownership thereof, to respondent by

virtue of the notarized deeds of conveyances.[29]

Material Occupation

Possession always includes the idea of occupation, except in cases under Article 537 [Art. 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] possession cannot exist without it.

It is not, however, necessary that the person in possession should himself be the occupant. The occupancy can be held

by another in his name.

Animus Possidendi

This involves a state of mind whereby the possessor intends to exercise and does exercise a right of possession, whether

this right be legal or otherwise and the intention and will to possess usually are inferred from the fact that the thing in

question is under the apparent power and control of the alleged possessor. Two requisites: 1) Occupancy, apprehension,

or taking 2) intent to possess.

Constructive Possession:

Possession 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 rule is: Possession and control of a PORTION of a tract under a claim of ownership of is a CONSTRUCTIVE

possession of all, if the remainder is not in the adverse possession of another.

Viewpoints of Possession:

a) RIGHT TO POSSESSION ( jus possidendi)- This is a right or incident of ownership ( e.g. owner of parcel of land is

entitled to possess)

e.g. “right of registered owner to possess a parcel of land”

b) RIGHT OF POSSESSION ( jus possessionis)- This is an independent right of itself, independent of ownership ( e.g.

lessee by virtue of the lease agreement is entitled to possess)

Degrees of Possession:

1. Mere holding or possession WITHOUT title whatsoever and in violation of the right of the owner e.g. possession of a

thief or a usurper of land.

2. Possession with juridical [ a possession which gives the transferee a right over the thing which the transferee may set

up even against the owner] title, BUT not THAT of OWNERSHIP. This is possession peaceably acquired e.g. possession

of tenant, depositary, or pledgee.

3. Possession with a just title, or a title sufficient to transfer ownership, BUT NOT FROM THE TRUE OWNER e.g. the

possession of a vendee of a piece of land from one who pretends to be the owner but is in fact not the owner.

4. Possession with a just title FROM THE TRUE OWNER. This is possession that springs from ownership.

Possession may be had in two concepts:

Possession of Holder:

One who possesses as a mere holder, or not in the concept of owner, acknowledges in another a SUPERIOR right which

he believes to be ownership, whether his belief be right or wrong e.g. tenant, usufructuary, or borrower of a thing in

commodatum.

Possession in Concept [ opinion not of possessor himself but opinion of others] of Owner:

The possessor in the concept of owner may be the OWNER himself or one WHO CLAIMS to be so.

Effects of Possession in Concept of Owner:

1. Possession in concept of owner is converted into ownership by the lapse of time necessary for prescription.

2. Possessor can bring all actions necessary to protect his possession, availing himself of any action which an owner can

bring, except accion reinvidicatoria which is substituted by the accion publiciana.

3. He can ask for inscription of his possession in the registry of property.

4. Upon recovering possession, he demand fruits and damages.

Possessor in Good Faith:

1. Good faith consists in the possessor’s belief that the person from whom he received the thing was the owner of the

same and could convey his title.

2. The belief of the possessor that he is the legal owner of the thing must be based upon SOME title or mode of

acquisition such as sale, a donation, inheritance, or other means of transmitting ownership. Without this, there can be

no real well-grounded belief of one’s ownership.

3. Ignorance of the law may be excusable and thus serve as the basis of good faith. ( e.g. prohibition to transfer during the

5 year period in case of lands covered by a free patent)

Possession in Bad Faith:

1. One in possession of property knowing that his title thereto is defective.

2. Examples: Possessor bought from one whom she knew was merely a tenant; where he knew that land belong to

another etc.

ACQUISITION OF POSSESSION:

Essential Requisites:

1. Acquisition of possession involves two (2) elements: corpus [material holding] and animus [intent to possess].

Constructive Delivery:

1. Constructive delivery may be considered as equivalent to material occupation in those cases where such occupation is

essential to the acquisition of possession.

2. Cases of constructive delivery which involve material occupation are: tradition brevi manu [ takes place when one

who possesses the things by title OTHER than ownership continues to possess the same but under a new title that of

OWNERSHIP] and constitutum possessorium [ when the owner alienates the thing, but continues to possess the same

under a different title, such as that of depositary, pledge, or tenant].

Another means of acquiring possession is through performance of juridical acts and legal formalities e.g.

donations, succession, contracts, judicial possession, execution of judgments, execution and registration of public

instruments etc.

Ignacio Wong vs. Hon. Carpio and Manuel Mercado [ G.R. No. 50264 October 21, 1991].

The execution of a sale thru a public instrument shall be equivalent to the delivery of the thing, unless there is stipulation

to the contrary. If, however, notwithstanding the execution of the instrument, the purchaser cannot have the

enjoyment and material tenancy of the thing and make use of it herself, because such tenancy and enjoyment are

opposed by another, then delivery has not been effected. (Paras, Civil Code of the Philippines, Vol. II, 1989 Ed., p.

400).

Art. 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 the death of the decedent. (442)

Reason for the Article:

Bad faith is personal and intransmissible. Its effect must, therefore, be suffered only by the person who acted in bad faith;

his heir should not be saddled with such consequences.

e.g. possession of decedent (in bad faith) is 5 years, possession of successor ( 10 years), successor deemed to have

acquired property by prescription. He cannot be required to establish possession for 25 years because of Art. 534.

Good faith can benefit only the person who HAS it; and the good faith of the heir cannot erase the effects of the bad faith

of his predecessor.

Art. 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor

of a thing, or by violenc e, do not affect possession.

Acts merely tolerated:

1. They are those which by reason of neighborliness or familiarity, the owner of property allows his neighbor or another

person to do on the property. Acts of little disturbances, in the interest of neighborliness or friendly relations e.g. permitting

others to do on his property to pass his land, tie a carabao, or getting some water from a well.

POSSESSORS BY MERE TOLERANCE CANNOT BE CONSIDERED AS BUILDERS IN GOOD FAITH UNDER

ARTICLE 448 OF THE CIVIL CODE

Case:

KILARIO vs. COURT OF APPEALS G.R. No. 134329, January 19, 2000

“Considering that petitioners were in possession of the subject property by sheer tolerance of its owners, they

knew that their occupation of the premises may be terminated any time. Persons who occupy the land of another at the

latter's tolerance or permission, without any contract between them, is necessarily bound by an implied promise that they

will vacate the same upon demand, failing in which a summary action for ejectment is the proper remedy against them.26

Thus, they cannot be considered possessors nor builders in good faith. It is well-settled that both Article 44827

and Article

54628

of the New Civil Code which allow full reimbursement of useful improvements and retention of the premises until

reimbursement is made, apply only to a possessor in good faith, i.e., one who builds on land with the belief that he is the

owner thereof.

EFFECTS OF POSSESSION:

Art. 540. Only the possession acquired and enjoyed in the concept of owner can serve as a title for

acquiring dominion

Application of Article:

1. To consolidate title by prescription, the possession must be under claim of ownership and it must be peaceful,

public and uninterrupted.

2. Acts of possessory character done by virtue of a license or mere tolerance on the part of the real owner are not

sufficient e.g. possession by lessees, trustees, pledges, tenants.

3. Where a party through ignorance, inadvertence, or mistake occupies a land up to a given line beyond his actual

boundaries because he believes it to be his true line, BUT HAS NO SPECIFIC INTENTION of claiming title to that extent,

if it should be ascertained that such line is on his neighbor’s land, such possession is NOT ADVERSE. The question is

one of intent.

Meaning of “adverse possession”:

Case:

Wolfson vs. Aenlle G. R. No. 21312 November 22, 1924

Facts:

1. At or about the time the shortage in plaintiff's land was discovered, the defendant said to the plaintiff: "Let us wait for

the cadastral survey, and if it is established by that survey that I am holding any part of your property I will return to you all

of that portion which may be in excess of what appears in my title.“

2. The cadastral survey was later made from which it was found as a fact that the defendant was holding 1,635 square

meters of plaintiff's land in excess of defendant's record title.

3. The refusal of the defendant to abandon his claim to the plaintiff for the excess of the 1,635 square meters, which was

found to exist by the cadastral survey, resulted in the commencement of this action.

Held:

After 1910, the defendant's possession of the land in dispute could not be adverse to plaintiff's claim until after the

cadastral survey was made, and the defendant had refused to abandon his claim for the excess. That important fact,

having been established by the evidence of an impartial witness whose testimony is not disputed or denied, is conclusive

of this case. Under such a state of facts, the defendant could not acquire title by prescription.

Art. 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.

Meaning of “Just Title”:

1. Title is NOT NECESSARILY the document.

2. By “just title” is meant that which is legally sufficient to transfer ownership or the real right to which it relates.

RULE ON “NECESSARY EXPENSES”:

Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may retain the

thing until he has been reimbursed therefor. ( ARTICLE 546)

WHAT ARE “NECESSARY EXPENSES”?

Necessary Expenses:

1. Expenses imposed by the existence of the thing itself, and have no relation to the desire or purpose of the possessor;

hence, they are reimbursed, whatever may be the juridical character [ whether one is in good faith or bad faith] of the

person who advanced.

2. Those incurred for the preservation of the thing, they ARE NOT considered as improvements. They DO NOT

increase the value of the thing, but merely prevent it from being useless.

RULE ON “USEFUL EXPENSES”:

Useful expenses shall be refunded only to the possessor in good faith with the same right of retention,

the person who has defeated him in the possession having the option of refunding the amount of the expenses

or of paying the increase in value which the thing may have acquired by reason thereof.

WHAT ARE “USEFUL EXPENSES”?

Useful Expenses:

They are incurred to give utility or productivity of the thing. Reimbursed ONLY to the possessor in good faith. E.g.

expenses for filling up with soil, house constructed on the land etc.

Can there be waiver of the right of retention?

Answer: Yes

The surrender of possession of the property by the possessor in good faith amounts to a waiver of right of

retention; but the claim for the expenses is not thereby renounced.

Can “possessor in good faith” remove improvements?

YES.

If the useful improvements can be removed without damage to the principal thing, the possessor in good

faith may remove them, unless the person who recovers the possession exercises the option under paragraph 2

of the preceding article.

RULE ON EXPENSES FOR “PURE LUXURY”:

Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he

may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and if

his successor in the possession does not prefer to refund the amount expended.

What are expenses for “luxury”?

Expenses for Luxury:

These expenses do not affect the existence or the substance of the thing itself, but ONLY the COMFORT,

CONVENIENCE, or ENJOYMENT of the possessor. They ARE NOT subject to reimbursement.

RIGHTS OF POSSESSORS:

1. Useful expenses are reimbursed to the possessor in good faith; by omission, the Code denies this right to the

possessor in bad faith.

2. With respect to expenses for pure luxury or pleasure, two kinds of possessors [ good faith and bad faith possessors]

HAVE THE SAME RIGHT i.e. to remove the improvements upon which they were made if the principal thing will suffer no

injury and the owner does not prefer to retain them upon payment of the proper indemnity.

3. Take note that with regard to USEFUL EXPENSES, the possessor in BAD FAITH has NO RIGHT TO REMOVE.

BUT, as regards “expenses for pure luxury”, a situation may arise where a possessor in bad faith may receive the value

of the luxurious improvements under Article 549.

In the case of *Carbonell vs. Hon. Court of Appeals, et al. [ G.R. No. L-29972 January 26, 1976], which involve

“useful improvements”, the Supreme Court held that

“as a matter of equity, the possessors in bad faith should be allowed to remove the aforesaid improvements (

useful improvements e.g. draining the property, filling it with 500 cubic meters of garden soil, building a wall

around it and installing a gate and P11,929.00 for erecting a bungalow thereon), unless the lawful possessor

chooses to pay for their value at the time the possessor in bad faith introduced said useful improvements.

HOWEVER, in the later case of of MWSS vs. COURT OF APPEALS 143 SCRA 623, the Supreme Court

reiterated that the right given a possessor in bad faith to remove improvements applies only to improvements for pure

luxury or mere pleasure as provided in Article 549 of the Civil Code.

POSSESSION OF MOVABLE:

The possession of movable property acquired in good faith is equivalent to a title.

Requisites for Title:

1) Possession is in good faith; 2) the owner has voluntarily parted with the possession of the thing; 3) possessor

is in the concept of an owner.

RULE: If the owner has lost the thing, or 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 ( Rule of Irrevindicability).

EXCEPTION TO THE RULE GRANTING OWNER THE RIGHT TO RECOVER:

When possessor acquired it in good faith in a public sale.

In this case, owner may recover provided he shall reimburse the possessor.

There are, however, instances where even if the owner offers to reimburse, still he cannot recover as a matter of right:

1. Estoppel

2. If title is lost through prescription

3. If possessor is a holder in due course of a document of title

What is the meaning of “unlawful deprivation”?

Unlawful deprivation extends to all cases- not only in cases where property is stolen- where there is no valid

transmission of ownership including those where the proprietor has entrusted the thing to a borrower

The case of *EDCA Publishing & Distributing Corp. vs. Santos [ G.R. No. 80298 April 26, 1990].

Issue: Whether the petitioner has been unlawfully deprived of the books because the check issued by the

impostor in payment therefor was dishonored.

HELD:

Non-payment only creates a right to demand payment or to rescind the contract, or to criminal

prosecution in the case of bouncing checks. But absent the stipulation above noted, delivery of the thing sold

will effectively transfer ownership to the buyer who can in turn transfer it to another.

Actual delivery of the books having been made, Cruz acquired ownership over the books which he could then validly

transfer to the private respondents. The fact that he had not yet paid for them to EDCA was a matter between him and

EDCA and did not impair the title acquired by the private respondents to the books.

USUFRUCT:

Definition of “Usufruct”:

Real Right, of a temporary nature, which authorizes its holder to ENJOY all the benefits which results from the normal

enjoyment of another’s property, with the OBLIGATION TO RETURN, at the designated time, either THE SAME THING

or, in special cases (QUASI-USUFRUCT), its EQUIVALENT.

Extent of Usufruct:

1. Usufruct is a REAL RIGHT [ power belonging to a person over a specific thing, without a passive subject individually

determined against whom such right may be personally exercised] and includes both the jus utendi AND the jus fruendi.

2. There is an obligation to preserve the form and substance of the thing in usufruct AS A RULE e.g. if usufruct on a

fishpond, it must be preserved as a fishpond; if a sugarcane field, it must be preserved as a sugarcane field.

Consumable things:

1. With regard to consumable things, strictly speaking there can be no usufruct, because they cannot be enjoyed without

being consumed. But since the law recognizes usufruct over ALL KINDS OF THINGS, if thing is consumable, usufruct

should be considered as on their value if appraised, or an equal quantity and quality if not.

2. Even unproductive things can be an object of usufruct.

Usufruct granted to aliens:

*Ramirez, et al. vs. Vda. de Ramirez, etc., et al. [ G.R. No. L-27952 February 15, 1982]

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does

not vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is

proscribed by the Constitution.

Rights of Usufructuary:

1. 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 ITS FRUITS.

2. He cannot, however, extract products which do not constitute fruits, because he is bound to preserve the form and

substance of the thing.

USUFRUCTUARY MAY LEASE HIS USUFRUCTUARY RIGHTS

Art. 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.

Usufruct over Consumable Things:

1. Improperly called “quasi-usufruct”.

2. The usufruct is not upon the consumable things THEMSELVES which are delivered to the usufructuary, but upon THE

SUM representing their value or upon a quantity of things of the same kind and quality.

3. Usufructuary becomes the owner of the things in usufruct such as a sum of money or a quantity of liquids or grain.

Grantor becomes merely a CREDITOR entitled to the return of their value or of things of the same quantity and quality.

OBLIGATIONS OF THE USUFRUCTUARY:

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[ personal bond, pledge, or mortgage], binding himself to fulfill the obligations imposed upon

him in accordance with this Chapter.

Exemptions of Usufructuary:

1. When the owner waives;

2) where the title constituting the usufruct exempts the usufructuary; and

3) where the usufructuary asks to be relieved from these obligations and no one will be injured.

LIABILITY FOR ORDINARY REPAIRS:

Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct.

LIABILITY FOR EXTRA-ORDINARY REPAIRS:

Art. 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.

EASEMENTS AND SERVITUDES:

Characteristics of Easements:

1. It is a real right; 2) Can be imposed only on the property of another, never on one’s own property; 3) Produces

limitation on ownership, but ownership of servient estate is unimpaired; 4) It is inseparable from the tenements to

which it is actively or passively attached; 5) Exists only between neighboring tenements.

KINDS OF:

Continuous and Discontinuous:

1. The distinction refers only to the EXERCISE of the servitude and not THE ESSENCE, because servitude exist

continuously, whether it is being used or not e.g. right of aqueduct, right to support a beam on another’s wall.

2. Discontinuous Easements e.g. right of way, the very exercise of the servitude depends upon the act of man in passing

over another’s property.

POSITIVE AND NEGATIVE EASEMENTS:

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 (ALTIUS NON

TOLLENDI)

EASEMENT OF LIGHT AND VIEW:

When “positive”?

Positive- When opening is made on another’s wall, or on a party wall, the servitude acquired is POSITIVE, because

the owner or owners of such wall permits the encumbrance to burden his or their wall.

When “negative”?

Negative- when the openings are made in one’s own wall [ when a person makes openings on his own wall to admit

light below the ceiling joists [any of the parallel beams of wood, metal, or concrete that support a floor, roof, or ceiling ],

and he acquires a servitude to admit such light, the servitude is a negative one- because it imposes upon the owner of

the adjacent estate the obligation NOT TO CONSTRUCT on his land in such manner as to obstruct the light.]

Easements are indivisible:

If the servient estate is partitioned, the servitude continues upon the portions upon which it was originally exercised.

If the dominant estate is divided into parts, there arise as many new dominant tenements as there are parts, each owner

exercising the rights of the owner of a dominant tenement.

Easements are established either by law or by the will of the owners.

NO JUDICIAL EASEMENT:

Courts cannot create easement. They can only declare the existence of one, if it exists, but cannot constitute it

when none existed before. They may only apply the law providing for legal easements, or declare the existence of those

created by the will of the owners.

. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

TITLE means the juridical acts which gives rise to the servitude e.g. law, donation, contracts, and wills.

PRESCRIPTION:

Special Case of Prescription (10 years). It DOES NOT REQUIRE good faith or just title. The general rules for

acquisitive prescription of ownership and other real rights do not apply to it. BUT ADVERSE POSSESSION or EXERCISE

OF THE EASEMENT must be present.

HOW TO COMPUTE PRESCRIPTION:

POSITIVE EASEMENTS:

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

NEGATIVE EASEMENTS:

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. E.G. prohibition to build a building of higher elevation.

CAN A RIGHT OF WAY BE ACQUIRED BY PRESCRIPTION?

NO.

1. Being an apparent but discontinuous easement, it cannot be acquired by prescription.

BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ

SR., respondents.

“Under civil law and its jurisprudence, easements are either continuous or discontinuous according to the manner they

are exercised, not according to the presence of apparent signs or physical indications of the existence of such

easements. Thus, an easement is continuous if its use is, or may be, incessant without the intervention of any act of man,

like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the

easement of right of way.”

“Its use of the right of way, however long, never resulted in its acquisition of the easement because,

under Article 622, the discontinuous easement of a railroad right of way can only be acquired by title and not by

prescription.”

EASEMENT OF RIGHT OF WAY:

Requisites:

1.Dominant estate is surrounded by other immovables and has no adequate outlet to a public hightway.

2. After payment of the proper indemnity

3. Isolation was not due to acts of the proprietor of the dominant estate

4. 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 [ e.g. hence, subject to the limitation

that the usefulness of the servient tenement to its owner is not impaired]

REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC., EDUARDO ASPREC, ENELDA ASPREC,

ERNESTO ASPREC, and COURT OF APPEALS, respondents.[ G.R. No. 75905 October 12, 1987]3rd Division

["mere convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of this servitude,

there must be a real, not a fictitious or artificial, necessity for it."]

CRITERION OF “LEAST PREJUDICE”

Art. 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.

Predominant criterion is “least prejudicial to the servient estate” and not short distance [ e.g. as when there are

constructions or walls which can be avoided by a round-about way]

WIDTH OF EASEMENT OF RIGHT OF WAY:

Art. 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.

EASEMENT OF PARTY WALL:

Co-ownership or Easement?

Easement [ Manresa, De Diego, Castan, and Ricci]; Co-Ownership [ Sanchez Roman, Valverde, etc]

This co-ownership is a special class in itself [ as shown by the following: 1) co-ownership is indivisible 2) part pertaining to

the co-owner can be materially designated 3) rights of a co-owner greater than those of an ordinary co-owner, such as

with respect to increasing the height of the wall] . This is a kind of COMPULSORY KIND OF CO-OWNERSHIP.

It is a servitude because, in an ordinary co-ownership [ none of the co-owners may do anything on the common property

for his own exclusive benefit, but in a party wall, there is no limitation upon the juridical action of the owners].

EASEMENT OF LIGHT AND VIEW:

Art. 667. No part-owner may, without the consent of the others, open through the party wall any window or

aperture of any kind. (580) Note: [ Co-owner can close, UNLESS a sufficient time for prescription has elapsed.]

Two kinds of Easements:

1. Easement of Light “jus luminum” [ e.g. Art. 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 joist 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]

2. Easement of View “servidumbre prospectus” e.g. as in the case of full or regular windows overlooking

adjoining estate. “altius non tollendi”- easement not to build higher for the purpose of obstruction.

REGULATORY OPENINGS:

Art. 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.

NUISANCE:

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.

PUBLIC NUISANCE:

A public nuisance 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.

PRIVATE NUISANCE:

A private nuisance is one that is not included in the foregoing definition.

Doctrine of Attractive Nuisance:

Dangerous instrumentality or appliance which is likely to attract children at play.

One who maintains on his estate or premises an attractive nuisance without exercising due 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.

Hidalgo Enterprises Inc. vs. Guillermo Balandan et.al. G.R. No. L-3422 June 13, 1952

“Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of

drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and

if the owner of private property creates an artificial pool on his own property, merely duplicating the work of

nature without adding any new danger, . . . (he) is not liable because of having created an `attractive nuisance.”

`Estate of Gregoria Francisco et.al. vs. Court of Appeals G.R. No. 95279 July 26, 1991

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

(Monteverde v. Generoso, 52 Phil. 123 [1982]). 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.

MODES OF ACQUIRING OWNERSHIP:

Art. 712. Ownership is acquired by occupation and by intellectual creation.

Ownership and other real rights over property are acquired and transmitted by law, by donation, by

testate and intestate succession, and in consequence of certain contracts, by tradition.

They may also be acquired by means of prescription.

MODE AND TITLE:

Mode is the specific cause which produces dominion and other real rights as a result of the co-existence of

special status of things, capacity and intention of persons and fulfillment of the requisites of law.

Title is every juridical rights which gives a means to the acquisition of real rights but which in itself is insufficient.

Illustration:

Title is the remote cause, and mode the proximate cause of the acquisition.

e.g. Contract of sale is the title, tradition is the mode.

Ownership is not transferred by contract of sale but by tradition

Classification of Donations:

Simple- cause is pure liberality

Remuneratory ( first kind)- to reward past services e.g. donation who saved life of his son)

Remuneratory (second kind)- to reward future services

Onerous- there are burdens, charges, or future service. This is govern by the rules of contracts.

EFFECT OF ILLEGAL OR IMPOSSIBLE CONDITIONS

Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as

not imposed. ( THIS ONLY APPLIES IF THE DONATION IS PURELY GRATUITOUS)

FOR ONEROUS DONATIONS, THE RULE IN OBLIGATIONS AND CONTRACTS APPLIES

i.e. Rule in contracts [ which is applicable in a case of “onerous donation”]:

Art. 1183. Impossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul

the obligation which depends upon them. If the obligation is divisible, that part thereof which is not affected by the

impossible or unlawful condition shall be valid.

Validity of conditions in an “onerous donation”:

ROMAN CATHOLIC ARCHBISHOP OF MANILA et.al. vs. COURT OF APPEALS G.R. No. 77425 June 19,

1991

The deed of donation allegedly provides that the donee shall not dispose or sell the property within a period of

one hundred (100) years from the execution of the deed of donation, otherwise a violation of such condition would render

ipso facto null and void the deed of donation and the property would revert to the estate of the donors.

HELD:

The cause of action of private respondents is based on the alleged breach by petitioners of the resolutory condition in

the deed of donation that the property donated should not be sold within a period of one hundred (100) years from the

date of execution of the deed of donation. Said condition, in our opinion, constitutes an undue restriction on the rights

arising from ownership of petitioners and is, therefore, contrary to public policy.

DONATION MORTIS CAUSA:

Art. 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.

Austria-Magat vs. Hon. Court of Appeals G.R. No. 106755 February 1, 2002 [ INTER-VIVOS DONATION]

Deed of Donation provides:

Ibinibigay ko at ipinagkakaloob ng ganap at hindi mababawi sa naulit na apat na anak ko at sa kanilang mga

tagapagmana, ang aking lupang residential o tirahan sampu ng aking bahay nakatirik doon xxx. (emphasis supplied)

This is a clear expression of the irrevocability of the conveyance. The irrevocability of the donation is a characteristic

of a donation inter vivos. By the words “hindi mababawi”, the donor expressly renounced the right to freely dispose of the

house and lot in question. The right to dispose of a property is a right essential to full ownership. Hence, ownership of the

house and lot was already with the donees even during the donor’s lifetime.

On the issue of effect of prohibition to alienate:

“On the other hand, the prohibition to encumber, alienate or sell the property during the lifetime of the donor is a

recognition of the ownership over the house and lot in issue of the donees for only in the concept of an owner can one

encumber or dispose a property.”

CHARACTERISTICS OF A MORTIS CAUSA DONATION:

Bonsato vs. Court of Appeals [ G.R. No. L-6600 July 30, 1954 ], the characteristics of donation mortis causa are as

follows:

(1) It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the

same thing, that the transferor should retain the ownership (full or naked) and control of the property while alive;

(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may

be provided for indirectly by means of a reserved power in the donor to dispose of the properties conveyed;

(3) That the transfer should be void if the transferor should survive the transferee.

PERFECTION OF DONATION:

Art. 734. The donation is perfected from the moment the donor knows of the acceptance by the donee.

PAJARILLO et.al. vs. INTERMEDIATE APPELLATE COURT G.R. No. 72908 August 11, 1989

FACTS:

Donation that is involved is that from a mother to a daughter.

Donation was accepted by Salud Suterio in a separate public instrument, but the acceptance WAS NOT NOTED

in both instruments, meaning, the extra-judicial partition [ where the donation was made] and in the instrument of

acceptance, as required by the Civil Code.

The purpose of the formal requirement is to insure that the acceptance of the donation is duly communicated to the donor.

In the case at bar, it is not even suggested that Juana was unaware of the acceptance for she in fact confirmed it

later and requested that the donated land be not registered during her lifetime by Salud. 13 Given this significant

evidence, the Court cannot in conscience declare the donation ineffective because there is no notation in the extrajudicial

settlement of the donee's acceptance. That would be placing too much stress on mere form over substance.

DONATION OF A MOVABLE:

Art. 748. The donation of a movable may be made orally or in writing.

An oral donation requires the simultaneous delivery of the thing or of the document representing the right

donated.

If the value of the personal property donated exceeds five thousand pesos, the donation and the

acceptance shall be made in writing, otherwise, the donation shall be void.

DONATION OF REAL ESTATE:

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document,

specifying therein the property donated and the value of the charges which the donee must satisfy.

The acceptance may be made in the same deed of donation or in a separate public document, but it shall not

take effect unless it is done during the lifetime of the donor.

If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and

this step shall be noted in both instruments.

Quilala vs. Gliceria Alcantara et.al. G.R. No. 132681 December 3, 2001

FACTS:

The acknowledgement only contains the name of the donor to be the only one who appeared before the Notary Public.

There was no mention of the donee. But in the Deed of Donation itself, there appears a stipulation that the “donee hereby

receives and accepts the gift and donation made in her favor by the donor….”

HELD:

In the same vein, the lack of an acknowledgment by the donee before the notary public does not also render the

donation null and void. The instrument should be treated in its entirety. It cannot be considered a private document in

part and a public document in another part. The fact that it was acknowledged before a notary public converts the deed of

donation in its entirety a public instrument. The fact that the donee was not mentioned by the notary public in the

acknowledgment is of no moment.

VOID DONATION may be basis for title through ACQUISITIVE PRESCRIPTION

CALICDAN vs. CENDANA G.R. NO. 155080 FEBRUARY 5, 2004

FACTS:

The donation involved a 760 sq.m. parcel of land in Mangaldan, Pangasinan executed by Fermina Calicdan ( in

1947) in favor of Silverio Cendana. This is a suit for recovery instituted by Soledad Calicdan, one of the children of

Fermina.

The donation was found to be the exclusive property of Fermina’s husband, Sixto, being an inheritance from the

latter’s parents.

HELD:

Although the donation is void for having been executed by one who is not the owner, considering that it was established

that respondent Silverio Cendana has been in possession of the land for 45 years already he has acquired title to it by

acquisitive prescription.

Art. 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 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.

ROMAN CATHOLIC ARCHBISHOP OF MANILA et.al. vs. COURT OF APPEALS G.R. No. 77425 June 19, 1991

HELD:

Although it is true that under Article 764 of the Civil Code an action for the revocation of a donation must be brought

within four (4) years from the non-compliance of the conditions of the donation, the same is not applicable in the case at

bar. The deed of donation involved herein expressly provides for automatic reversion of the property donated in

case of violation of the condition therein, hence a judicial declaration revoking the same is not necessary.

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.

PRESCRIPTIVE PERIOD TO FILE ACTION TO REDUCE ON THE GROUND OF IMPAIRMENT OF LEGITIME

“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.”

( Eloy Imperial vs. CA et.al. GR.112483 Oct. 8, 1999

From when shall the ten-year period be reckoned? The case of Mateo vs. Lagua, 29 SCRA 864, which involved

the reduction for inofficiousness of a donation propter nuptias, recognized 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.