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Atty. Robles

How is property lost?
Property is an economic concept, meaning, a mass of things or objects useful to
human activity and which are necessary to life, for which reason they may in one
way or another be organized and distributed but always for the use of man.
In the strict legal sense, it is an aggregate of rights which is guaranteed and
protected by the government.
In the ordinary sense, it indicates the thing itself rather than the rights attached to
Property, considered as an exclusive right to things, contains not only a right to use
these things, but the right to dispose of them, either by exchanging them for other
things or by giving them away to any other person without any consideration, or
even throwing them away.
Right to Property 1987 Philippine Constitution
No person shall be deprived of property without due process of law (Article 3,
Section 1)
Private property shall not be taken for public use without just compensation
(Article 3, Section 9)
Right to Property Louisiana State Constitution
Every person has the right to acquire, own, control, use, enjoy, protect, and dispose
of private property. This right is subject to reasonable statutory restrictions and the
reasonable exercise of the police power (Article 1, Section 4).
Right to property
The right to property is distinct and separate from property in itself and is defined
as 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 by law, or by the
rights of others.
The right to property emphasizes the vinculum between man and thing, while
ownership refers to the mass of rights over a thing.
The right to property is the right and interest which a man has in lands and chattels
to the exclusion of all others.
Right to property is a real right.

Claudio, Cortina, Sarines (2A SY 2009-2010)

I. By the act of man

1. Alienation
2. Voluntary Abandonment
II. By operation of law
1. Forced sale
2. Confiscation or sentence of a criminal court
3. Prescription
4. Civil Death
5. Capture by public enemy
6. When lost by the act of God
What constitutes property?
Article 414 of the Civil Code provides that property is anything which is or may be the
object of appropriation
The concept of a thing is broader than the concept of property
The Civil Code purportedly uses thing and property interchangeably
Thing refers to those which are not or may Anything which is or may be the object of
not be the object of appropriation
Thing is genus
Property is the species
In order for a thing to be considered as property, it must have:
1. Utility for satisfaction of economic wants
2. Substantivity or the capability to exist by itself and not merely part as a whole
3. Appropriability

Art. 414 Classification of things may be the object of appropriation


Immovable or real
Movable or personal

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The classification into movable or immovable property does not assume its
importance from the fact of mobility or non-mobility but from the fact that different
provisions of law govern the acquisition, possession, disposition, loss, and
registration of movables and immovables.
Paras further comments on the matter saying that it is an incomplete classification for
failure to take into consideration machines, removable houses, or transportable
trees which are movable properties but by virtue of their being attached to an
immovable for specified purposes may be considered immovable. He refers to these
kinds of properties as semi-immovable or mixed.

Atty. Robles
I. Immovables by nature: those which cannot be moved from place to place

Lands, buildings, roads, and constructions of all kinds adhered to the soil (par. 1)

That which is built upon the land goes with the land
Constructions of all kinds adhered to the soil should be interpreted as to be
immovable, it must be attached permanently to the land. It thus becomes
immovable by incorporation.

2. Mineral deposits and waters (par. 8)

Profs lecture
For Art. 414 to be applicable the thing must have an owner or possessor.
Embedded in the concept of property is an animus with intent to possess as ones
It is important to ascertain whether it is movable or immovable because different
laws govern them (e.g., taxes, Statute of Frauds, crimes against property)
Art. 415 Immovable property

The law does not define what properties are immovable; they are merely
The enumeration in Art. 415 does not give an absolute criterion as to which
properties are real, and which are peTrsonal.
Immovables follow the law of their locality.

1. By nature
2. By incorporation
3. By destination or

4. By analogy

Academic classification of real properties

(1), (8)
Trees and plants
(1), (2), (3), (4), (6)
(4), (5), (6), (7), (9)
Like machinery placed by the
owner of a tenement on it
for direct use in an industry
to be carried on therein
Contract for public works,
right of usufruct, easements
and servitudes

Claudio, Cortina, Sarines (2A SY 2009-2010)

Mines stated here include the minerals attached thereto.

Once the minerals are extracted, they become chattels

II. Immovables by incorporation: those which are essentially movables, but are attached to
an immovable
1. Trees, plants, and growing fruits while they attached to the land or form an
integral part of an immovable


Paras provides that trees and plants are considered really property by
incorporation only if they were planted through labor. If such are
spontaneous products of the soil, they are real property by nature
The moment the tree is detached from or uprooted from the land, they
become personal property
Except in case of uprooted timber, if the land is timber land. This is so because
although it is no longer attached, the timber still forms an integral part of
the timber land immovable

Things incorporated (par. 3)

These are immovable by incorporation

For the incorporated thing to be considered real property, the injury or
breakage or deterioration in case of separation must be substantial

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Contrary to par. 3, these can generally be separated from the immovable

without breaking the matter or injuring the object
It is indispensable that the objects must be permanently placed in the
immovable by the owner of the latter

There is an error in this provision of law according to Manresa: The houses

referred to here may already be deemed included in par. 1 when it speaks of
constructions of all kinds adhered to the soil. This could have been meant
for the animals themselves

The immovable condition of these objects depends upon their being destined
for the use in the industry or work in the tenement.
The moment they are separated, not necessarily from the immovable, but
from the industry or work in which they are utilized, they recover their
condition as movables.
Machinery which is immovable on its nature only becomes immobilized when
placed in a plant by the owner of the property but not when so placed by a
tenant, usufructuary, or any person having only a temporary right, unless such
person acted as an agent of an owner.

Fertilizers should be on the land where they are to be utilized because it is the
intention of the owner to use them on the tenement
Fertilizers kept in the farmhouse are not immovable

Claudio, Cortina, Sarines (2A SY 2009-2010)

2. Fertilizer actually used on a piece of land (par. 7)

1. Machinery and equipment (par. 5)

III. Immovables by Destination of Purpose: those which are essentially movables but by the
purpose for which they have been placed in an immovable, partake of the nature of the
latter because of the added utility derived therefrom

4. Animal houses and animals therein (par. 6)

3. Fixtures and ornaments (par. 4)


Vessels are considered personal property

According to Manresa, the properties referred to here are not material things
but rights, which are necessarily intangible

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Examples of various kinds of personal property

1. Par. 1 fountain pen, piano, animals
2. Par. 2 growing crops for the purposes of the Chattel Mortgage Law, machinery
placed on a tenement or by a tenant who did not act as the agent of the tenement

By special provision
Act. No. 1508 the Chattel Mortgage Law, recognizes the growing crops are personal
property and may be the object of chattel mortgage

General test of movable character

1. Whether it can be carried from place to place (test by description)
2. Whether the change of location can be effected without injury to an immovable to
which the object may be attached (test by description)
3. Whether the object is not included in any of the 10 paragraphs or Article 415 (test
by exclusion This test is superior to the test by prescription

Art. 416 Personal Property

Profs lecture
All that is built upon land shall belong to the owner of the land
General rule: to the principal which is the land, belong all the accessories
Exception: If the contract was subject to modern convention or by agreement of
the parties
The presumption is that the owner of the land is the owner of the building but this
can be rebutted
Under PD 464, owners of the land every 3 years must declare under oath all other
improvements on the land/property. This safety provision was created so as not to
unduly deprive the government of taxes

1. Realty by analogy (par. 10)

IV. Immovables by analogy

3. Docks and Fixed Floating Structures (par. 9)

Atty. Robles

Par. 3 forces of nature such as electricity, gas, light, nitrogen, heat, oxygen, rays,
Par. 4 machinery not attached to land nor needed for the carrying on of an
industry conducted therein, portable radio, laptop computer, diploma hanging on
the wall

Shares of stock of agricultural, commercial, and industrial entities, although they

may have real estate (par. 2)
All juridical persons must be deemed included
It should be noted that even if the sole property of a corporation should
consist only of real property, a share of stock in said corporation is
considered personal property
Share in a partnership is considered personal property
There is no reason to discriminate between shares in a corporation and
shares in other juridical persons
Shares of stock can be exercised only where the corporation is organized
and has its place of business
This class of property is inseparable from the domicile of the corporation
Money is personal property

Claudio, Cortina, Sarines (2A SY 2009-2010)


Other Kinds of Personal Property

1. Obligations and actions which have for their object movables or demandable sums
(par. 1)
The term used in this article really means rights or credits

Art. 417 Personal Property

Personal effects
Personal effects are personal property, but not all personal property are personal
Personal effects include not only such tangible property as applied to a person and
cannot include automobiles

Intellectual property
A patent, a copyright, the right to an invention these are intellectual properties
which should be considered as personal property




If it is agreed that the identical thing be

returned, it is non-fungible, even though by
nature it is consumable

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The classification into consumable or non- A classification into fungibles and nonconsumable is according to the nature of the fungibles is a classification according to
It is the intention of the parties to a contract that determines whether the object is fungible
or non-fungible, and not the consumable or non-consumable nature of the thing

These are generally things whose

individuality can be determined by counting,
weighing, or measuring
If it is agreed that the equivalent be
returned, the property is fungible

Classification of property according to the intention or purpose of the parties

The quality of being fungible depends upon Those which have their own individuality and
their possibility because of their nature or do not admit of substitution
the will of the parties, of being substituted
by others of the same kind, not having a
distinct individuality

Classification of movables according to nature

This cannot be used according to its nature Ay other kinds of movable property
without its being consumed

Art. 418 Classification of movables

Atty. Robles

Collective ownership is in the social group

Public purpose Cannot be the object of appropriation
State is the juridical representative

Claudio, Cortina, Sarines (2A SY 2009-2010)

Kinds of property of public dominion

1. For public use may be used by anybody
2. For public service may be used only by duly authorized persons
3. For the development of national wealth natural resources

Sacred and religious objects neither public or private

Churches and other consecrated objects have been considered outside the
commerce of man


Dominion v. Ownership
1. Domino is not ownership
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

Public dominion
The term public dominion may be used in the sense of ownership by the State, in
that the State has control and administration
The term may be used in the sense of ownership by the public in general, in that for
as long as such properties remain for public use, they cannot be made the object of
commerce, not even by the State or its subdivisions

Art. 420 Property of public dominion

Property classified according to ownership

1. Public
2. Private The state may own properties both in its public capacity (properties of
public dominion) and in its private capacity (patrimonial property)

Art. 419 Property classfied according to ownership


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Patrimonial Property
The property it owns but which is not devoted to public use, public service, or the
development of national wealth.
It is wealth owned by the State in its private, as distinguished from its public
They are subject to prescription
They can also be the object of ordinary contracts
Public lands may, under the Civil Code, be classified as private property of the
State, as soon as they are available for alienation or disposition

Art. 421 Patrimonial Property

Principles applied to property of public dominion

1. Alienation They cannot be alienated or leased or otherwise be subject matter of
2. Prescription They cannot be acquired by prescription against the State
3. Attachment and Execution They cannot be the subject of attachment and
4. Voluntary easement They cannot be burdened by any voluntary easement

Other properties of similar character under par. 1(e)

1. Public streams
2. Natural beds of rivers
3. River channels
4. Waters of rivers
5. Creeks and esteros
6. Accretions or additions to the shores of the sea by action of the water
7. Lands reclaimed from sea
8. Manila Bay or coastal areas
9. Converted private lands natural expropriation or a de facto case of eminent
10. Streets
11. Shores
12. Navigable and non-navigable streams

Atty. Robles

Art. 423 Properties of political subdivisions

Property of public dominion ceases to be such and becomes private property of the
State only upon a declaration by the government
Under Art. 461, however, an abandoned river bed belongs not to the State, but to
the private land owner whose land is now occupied by the changed course, in
proportion to the area lost.

Basis for classification is use.

The national government still controls the disposition of properties of political
subdivisions regardless of the use to which they are devoted, provided that the
properties came from the State

Claudio, Cortina, Sarines (2A SY 2009-2010)

Properties of political subdivisions

1. Property for public use
The right of the public to use the city streets may not be bargained away
through a contract

The national government may donate its patrimonial property to a

municipality, and the latter may own the same. This is because a
municipality is a juridical person capable of acquiring properties
When thus donated, the property becomes either property for public use
or patrimonial property, depending on the use given to the property
When a municipalitys properties for public use are no longer intended
for such use, the properties become patrimonial, and may now be the
subject of a common contract

Art. 424 Classification of properties of political subdivisions

Alienation of the properties

1. Properties of a political subdivision for public use cannot be alienated as such, and
may not be acquired by prescription
2. Properties of a political subdivision which are patrimonial in character may be
alienated, and may be acquired by others thru prescription

Properties of political subdivisions

1. Property for public use
2. Patrimonial property

Art. 422 Conversion of property of public dominion to patrimonial property


Patrimonial property
Note that in the case of State properties, properties for public service are of
public dominion, this is not so in the case of political subdivisions for public
service are patrimonial (since they are not for public use)

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Other private properties are those that belong to private persons individually or
Collectively refers to ownership by private individuals as co-owners or by
corporations, partnerships, or other juridical persons who are allowed by the Civil
Code to possess and acquire such properties
Possession by private persons since time immemorial carries the presumption that
the land had never been part of the public domain
An alien has had no right to acquire lands since the date of effectivity of the 1987
Constitution except by hereditary succession. The same rule applies to foreign

Art. 425 Private properties other than patrimonial

Applicable principles
1. Property for public use of provinces and towns are governed by the same principles
as property of public dominion of the same character
2. Properties for public use may not be leased to private individuals
3. If a plaza is illegally leased to private individuals, the lease is VOID and any building
on said plaza built by the lessee may be DEMOLISHED.
4. Properties used by a municipal corporation in the exercise of its governmental
powers cannot be attached or levied upon
5. National properties may not be registered by a municipality under its name
6. The towns patrimonial property is administered, at least insofar as liability to third
persons is concerned, in the same way as property of a private corporation

Properties of political subdivisions may also be classified as:

1. Those acquired with their own funds (in their private capacity) here the political
subdivision has ownership and control
2. Those which do not fall under (1) These are subject to the control and supervision
of the State.
They are held by the political subdivisions in trust for the State for the
benefit of the inhabitants
The reason is that the political subdivision owes its creation to the State


Atty. Robles

Ownership exists when a thing pertaining to one person is completely subjected to

his will in a manner not prohibited by law and consistent with the rights of others
As an owner, a person has the right to possess, enjoy, dispose of, and recover that
thing which he owns

Ownership is different from possession. Possession is defined as the holding of a

thing or enjoyment of a right.
To possess means to actually and physically occupy a thing with or without right
A person may be declared owner but he may not be entitled to possession
A judgment of ownership does not necessarily include possession as a necessary

Claudio, Cortina, Sarines (2A SY 2009-2010)

In the concept of an owner
In the concept of a holder
May be the owner himself or one who claims Acknowledges in another a superior right
to be so
which he believes to be ownership, whether
his belief be right or wrong

Ownership is subject to:

1. The Constitution such as the nationality requirement for owning land in the
2. Restrictions inherent in the property itself
3. Limitations stipulated in contracts
4. Restrictions in law or ordinances such as zoning regulations
5. Conditions stipulated in deeds of donation
6. Restrictions imposed by the owner himself

Art. 427 Ownership may be exercised over things or rights


Art. 426 Provisions common to three preceeding chapters


Accion Reivindicatoria
This is an action against ownership, and action against a person with title
over the property


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Accion Publiciana
This is for the recovery of the better right to possess
The issue here is not possession de facto, but possession de jure


Forcible entry
The possessor had no consent from the

Unlawful detainer
This is applicable when the possessor was once allowed by the owner to
retain the property, but the right to possess has terminated, and yet
possessor refuses to vacate the property

Unlawful detainer
The possessor once had the permission to
possess theproperty


Real property can be recovered through the following actions:

1. Forcible entry
This remedy is used when the owner was deprived of possession by
means of force, intimidation, strategy, threat, or stealth
It is necessary that the owner had actual possession of the property prior
to it being taken from him
The issue to be settled in cases of forcible entry is only physical
It does not include the matter of actual ownership of the property

An owner has the following rights:

1. To enjoy property, which includes its possession, use, and the enjoyment of its
fruits and profits
2. To dispose of the property, which means he can consume or destroy it, as well as
encumber or alienate his property
3. The right of action to recover the property
4. Personal property can be recovered through the provisional remedy of REPLEVIN.
Although the main case is an action for recovery.

Art. 428 - Rights of owner

Atty. Robles

Art. 434 Requisites for recovery

A person who is in actual possession of a property is protected by a disputable

presumption of ownership
For a person to fall under the protection of this article, he must be in actual
possession of a property, and he must have a claim of ownership

Art. 433

This article refers to states of necessity wherein a person may have to interfere with
anothers property in order to avoid or avert impending danger or injury
The owner is entitled to demand for indemnities from the person who may have
benefited or avoided the impending danger

Art. 432 Doctrine of incomplete privilege or state of necessity

The owner of a thing cannot make use thereof in such manner as to injure the rights
of a third person. (n)

Art. 431

Every owner may enclose or fence his land or tenements by means of walls, ditches,
live or dead hedges, or by any other means without detriment to servitudes
constituted thereon.

Article 430

The owner or lawful possessor has the right to exclude any person from the
enjoyment and disposal of the thing
The owner has the right under the law to counter force with force

It is necessary to identify the thing claimed as the object of the claimants right of
dominion. It is also necessary that the boundaries must be proved

Claudio, Cortina, Sarines (2A SY 2009-2010)

Requisites for recovery

1. That he has a better title than the defendant property
2. The identity of the property

Art. 429 Doctrine/Principle of Self-Help


Property rights, except the rights of occupation, are not affected by the
condemnation proceedings until the title has passed to the petitioner, and that
does not occur not until the award of compensation for damages has been
Jus compensation means a fair and full equivalent for the loss sustained
Market value is the price which it will bring where it is offered for the sale by
one who desires, but is not obliged to sell it, and is bought by one who is under
no necessity of having it. It is the value of the land in the locality.
Eminent domain refers to the right, expropriation refers to the procedure
Doctrine of reasonable necessity absolute necessity for public use is not
Expropriation required for private use or extraordinary expropriation is allowed

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The owner of a piece of land is the owner of its surface and anything under it he
can construct any works but subject to servitude and easements, special laws, and
ordinances, reasonable requirements of aerial navigation, principles on human

Art. 437 Right to space and subsoil

A valid exercise of police power which may be done in the interest health, safety,
or security, and to justify the destruction or abatement, by summary proceedings,
of whatever may be regarded as a public nuisance.
The owner shall not be entitled to compensation unless he can show that the
condemnation or seizure is unjustified

Art. 436 Seizure/Abatement of nuisance

Requisites of Art. 435

1. Taking by competent authority
2. For public use
3. Just compensation
4. Observance of due process

Art. 435 Power of eminent domain

Atty. Robles

Art. 440 Definition of accession


If found on the property of another, and by chance, person who found it is entitled to
finders fee, but if he is a trespasser, he is not entitled to anything
If the treasure found be of interest to science or arts, the state may acquire them for
just price
It is necessary that the owner is unknown
The person who first brings to view the hidden treasure, even in part, is the finder,
although he may not take material possession thereof.

Claudio, Cortina, Sarines (2A SY 2009-2010)

Right to fruits
1. Natural fruits refer to the spontaneous products of the soil where human labor
does not intervene, as well as the young and other products of animals
2. Industrial fruits refer to fruits produced by lands of any kind through cultivation
or labor
3. Civil fruits refer to rents of perpetual or life annuities or other similar income

Art. 441-444

Accession, according to Art. 440, is not a mode of acquiring ownership, since it is
implicitly included in ownership
The right to accession is automatic
Accession is the right of a property owner to everything which is produced by his
property. It also includes the right to everything which is attached thereto, either
naturally or artificially
Tolentino defines accession as the right by virtue of which the owner of a thing
becomes the owner of everything that it may produce or which may be inseparable
united or incorporated, either naturally or artificially.

Two requirements for the concept of treasure

1. That they consist of money, jewels, or other precious objects
2. That they are hidden and unknown, such that their finding is a real discovery

Art. 438 439: Hidden Treasure



accession natural
ii. avulsion
iii. change of course of rivers
iv. formation of islands


mixture (confusion liquids; commixtion solids)


With respect to personal property

a. adjunction or conjunction
inclusion (engraftment)
ii. soldadura (attachment)
iii. tejido (weaving)
iv. pintura (painting)
v. escritura (writing)


B. Accession Continua (Attachment or incorporation)

1. With reference to real property
a. accession industrial
ii. planting
iii. sowing

A. Accession Discreta (To the fruits)

1. natural fruits
2. industrial fruits
3. civil fruits

Classification of Accession by Paras

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Right to accession continua

Refers to both natural accession (accession natural) and artificial accession (accession

Instances when the owner of land does not own the fruits
1. The land is in possession of a possessor in good faith, since he owns the fruits
already received (Art. 544)
2. In cases of usufruct (Art. 566)

Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)

Three situations governed by different rules on accession industrial

1. When the landowner builds on his land using another persons materials
2. When another person other than the landowner builds on the land
3. When there are three parties: the landowner, builder, and owner of materials

Accession industrial
With respect to immovable property (accession industrial), accession continua is
governed by the general rule that whatever is built, planted, or sown on the land of
another and the improvements thereon, belong to the owner (Art. 445) This principle
is applicable if the owner of the land is known.
Its exception is that if the owner is married and the improvements are made on the
separate property of the spouse using the conjugal funds, the improvements shall
belong to the conjugal partnership.
With respect to Art. 446, the presumption is that all works, sowing, and planting are
made by the owner. The exception to this rule is when the improvements are
constructed on a separate property of one spouse, then construction is presumed to
be conjugal.

Art. 445 446

Priniciples: accession continua

1. The accessory follows the principal
2. He who is in good faith will not be penalized
3. He who is in bad faith may be penalized
4. No one should unjustly enrich himself at the expense of another
5. If both are in bad faith, they should both be considered in good faith
6. The union must be effected in such manner that to separate the principal from the
accessory would result in substantial injury to either


The owner may demand the

demolition of the thing built,
in order to return things to
their former condition at the
expense of the builder or
compel the builder to pay
the price of the land and the
sower, proper rent

General Rule
the landowner becomes the
owner of the materials, but
he must pay the owner of
the materials for their value
by reimbursement.
The landowner becomes the
owner of the materials, but
he must pay for their value

When the owner of the

materials decides to remove
them whether or not
caused. In this case, the
owner of the materials and
will be entitled to damages

The owner of the materials
decides to remove them
without causing destruction

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The landowner is exempted from reimbursement unless he chooses to get what

was built and is also entitled do damages in accordance with Art. 451, while the
builder is entitled to reimbursement for necessary expenses for the preservation of
the land in accordance with Art. 452

When the landowner is in

GOOD FAITH and the owner
of the materials is in BAD

When the landowner is in

BAD FAITH, and the owner of
the materials is in GOOD

When the landowner and
the owner of materials ARE

Art. 447 Rule when landowner and owner of materials are different persons

Atty. Robles

The landowner becomes the

owner of the building, but he
must pay for their value and

The builder loses what he

has built, planted or sown in
bad faith without the right to
indemnity in accordance
with Art. 449

When the landowner is in

BAD FAITH, while the builder

When the landowner is in

GOOD FAITH, and builder is

considerably higher than the
value of what was built, then
the builder cannot be
compelled to buy the land.
In this case, the rent should
be paid by the builder upon
terms agreed upon by the
parties or in case of
disagreement, the court
shall fix the terms.
When the builder decides to
remove them whether or
not destruction would be
caused since he has the
absolute right of removal

Claudio, Cortina, Sarines (2A SY 2009-2010)

As to rights of the landowner:

If the landowner property chooses to ask for the payment of the price of the land
and the builder, planter, or sower cannot pay the same, the landowner may either
oblige the builder or planter to remove the improvements at his expense or he may
petition the court to have the property be sold, and if the proceeds are not enough
to cover the value of the improvements, there shall be no reimbursement
The landowner does not automatically become the owner of the improvement if
the builder fails to pay the value of the land
If the landowner exercises the option to appropriate what he has been built,
planted or sown in bad faith, he may not be obliged to pay indemnity to builder,
planter, or sower

Profs lecture

General Rule
The landowner has a choice
either to:
1. appropriate
himself what was
2. Oblige the builder
to pay the price of
the land

When the builder is in GOOD

Art. 448-454: Rule when landowner and builder are different persons


A house built by a person on a land owned by another which land was occupied by
the former upon mere tolerance is a house built in bad faith

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Art. 455-456: Rule when there are three parties (landowner, builder, and owner of
Under the third situation, the rights of the landowner and builder remain
unaffected and established by the rules
A person can be in good faith and be negligent at the same time. In this case,
damages will arise based on Art. 2176 .

As to rights of the Builder:

In case the owner of the land who is also in good faith, has not paid the property
indemnity, the builder, sower, or planter, in good faith shall have the right to stay
in the property without paying rentals and also the right to have the value of which
is built, planted, or sown annotated on the title of the land to protect his right in
case the land is sold to a third person in good faith and for value.
A builder in good faith cannot be compelled to pay rental on the land he does not
own and on which his building was constructed. He has the right to retain the land
on which he has constructed the building in good faith until he is reimbursed the
expenses incurred by him
The builder, et al. in good faith who have not been paid the indemnity by the
owner of the land also in good faith, nay not validly claim the fruits thereof,
because in such case, they no longer act in good faith, they knowing the true owner
of the land
It must be noticed, however, that Art. 448 DOES NOT apply in the following cases:
1. Co-ownership
2. Usufruct
3. Lease already and/or previously agreed upon
4. A person who owns a house and lot sells only the lot but not the house
5. relations between private persons and sovereign belligerents

Atty. Robles

They must all be considered

acting in good faith


In case of insolvency of the

builder, the landowner is
subsidiarily liable if he makes
use of the materials . if the
landowner compels the
builder to buy the land or to
demolish the construction,
he does not make use of the
materials, hence he cannot
be held subsidearily liable

If in Good faith
reimbursement from the
builder since it was the
builder who first made use
of the materials.

Accretions are natural incidents to land bounding upon a water course and are not
affected by registration laws

Claudio, Cortina, Sarines (2A SY 2009-2010)

Reasons why alluvium is granted to the riparian owner

1. To compensate him for the loss he may suffer due to the erosion of the destructive
force of the water and danger from floods
2. To compensate him because the property is subject to encumbrances and legal

Riparian Owner
One whose land is bounded by a natural stream, or through whose land it flows,
and riparian rights are those which he has to the use of the water of the stream
The Civil Code grants the riparian owner the benefits of alluvium upon compliance
with the essential requisites

Art. 457 458: The Riparian Owner

If in Bad faith
He loses the right to be
indemnified. He can even be
liable for consequential
damage if the materials are
of an inferior quality

Parties involved
Owner of materials


Registration under the Torrens System does not protect the riparian owner against
any diminution of the area of his land through the gradual changes in the course of
the adjoining stream

Page 12 of 46

The land acquired by accretion will not become automatically registered under the
Torrens system if such accretion took place on a registered land
Therefore the benefit of accretion may be lost to third persons by prescription if
the riparian owner does not register the said alluvial deposits
The riparian owner has the right to make any beneficial use to himself on the
riparian land
However, if the use involves a consumption of water, he may not use more than
this reasonable share as compared with other riparian owners, and that he must
not pollute the water to the injury of others entitled to it, and that the water he
does not consume must be returned to the stream before it passes his land

Refers to a sudden deposit
Avulsion is identifiable
Owner of the land from which a part is
detached by avulsion retains ownership of
such part

Paras makes additional requirements such as the river must continue to

exist (if it disappears Art. 461 should be applied)
Added requisite is that the increase must be comparatively little which
could be considered as an amplification of the first requisite (that the
deposit must be gradual and imperceptible)

Involves a gradual deposit of soil
The soil in alluvium cannot be identified
The owner of the land in alluvium owns the

Accretion: Requisites
1. That the deposit be gradual and imperceptible
2. That it be made through the effects of the current of the water
3. That the land where accretion takes place is adjacent to the banks of the river

Concept of Alluvium
In alluvium, the riparian owner does not have to make an express act of possession
The alluvium belongs to him from the moment the deposit becomes manifest
It should be noted that the gradual alluvial deposits must be due to the natural
current of the river
Hence, deposits caused by human intervention are excluded

Atty. Robles

Once the river bed has been abandoned, the owners of the invaded land
automatically (as in the case of alluvium) acquire ownership over the abandoned
bed to the extent provided for in this article
Therefore, no formal act of ownership is necessary and any occupant of such
abandoned bed will be considered as a trespasser

Art. 461-462

This refers to uprooted trees only

This does not include trees which remain planted or standing on a known portion
of land carried by the force of water to another tenement because in this case the
trees are merely accessions of the land and Article 459 is applicable

Note than when a river changing its course by natural causes opens a new bed, as
well as the new river bank, through a private estate this bed shall become public
dominion based on Art. 462

Claudio, Cortina, Sarines (2A SY 2009-2010)

1. change must be sudden in order that the old river may be identified
2. changing course must be more or less permanent
3. change of river bed must be due to natural causes
4. there must be definite abandonment by the government
5. river must continue to exist and not completely dry up

Art. 460 Uprooted trees

In avulsion, the portions of land must be such that it can be identified as coming
from a definite tenement.
When the known portion taken by the current of the waters from one tenement is
left in the middle of the stream, not united to any other tenement, the owner
preserves his right of ownership over said portion. It will be governed by Art. 463.
Delayed accession

Art. 459 Concept of Avulsion


Page 13 of 46

The islands referred to in this article belong to the patrimonial property of the state.
A navigable river is one which in its natural state affords a channel for useful
commerce and not such as is only sufficient to float a banca or a canoe

Art. 464

This article refers to all rivers, whether navigable or floatable or not. The owner
does not lose his ownership simply because of an inundation which ahs converted
his land into an island.

Art. 463

Profs lecture
Note that the consolidation referred to in Article 461 (second sentence) was not
included in the above-quoted provision of the Water Code. It is said, however, that
consolidation in Art. 461 is applicable

When article not applicable

It is clear that the present article contemplates a case wherein a river bed is
abandoned by a natural change in the course of the river which opens a new bed.
It does not contemplate a situation where the river simply dries up.

The Water Code of the Philippines

When a river in changing its course naturally opens a bed through a private estate,
the new bed becomes public dominion.
The Water Code of the Philippines allows the riparian owner to protect himself from
such force of nature
Under Article 57 of the Code, any person may erect levees and revetments to
protect his property from flood, encroachment by the river or change in the course
of the river, provided that such construction does not cause damage to the
property of another
Art. 58 provides that: When a river or stream suddenly changes in 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 owners of the
lands thus affected are not entitled to any compensation for any damage sustained
thereby. However, former owners of the new bed shall be the owners of the
abandoned bed in proportion to the area lost by each

Atty. Robles

Art. 469

In painting and sculpture, writings, printed matter, engraving, and lithographs, the
board, metal stone, canvas, paper, or parchment shall be deemed the accessory

Claudio, Cortina, Sarines (2A SY 2009-2010)

If the one who has acted in bad faith is the
owner of the principal thing

The owner of the accessory thing shall
have the right to choose between the
former paying him the value or that the

Art. 470

In case the thing united for the use, embellishment or perfection of the other, is
much more precious than the principal thing, the owner of the former may demand
its separation, even though the thing to which it has been incorporated may suffer
some injury

Art. 466 468

Right of accession with respect to movable property

The Civil Code talks about three types of accession with respect to immovable
property: adjunction (or conjunction), mixture and specifications

It does not include the following:

1. If nearer in margin in one bank, owner of the nearer margin is the sole owner
2. If equidistant, the island shall be divided longitudinally in halves, each getting the

This article refers to islands formed gradually by successive accumulations of

deposits by the waters of the river in the same manner as alluvium
This includes new isles or islets formed between an existing island and the opposite
river bank in which case the owner of the older island is just considered as a
riparian owner for the purpose of determining ownership.

Art. 465 - Islands formed in non-navigable and non-floatable rivers


Rule if one party is in bad faith

Page 14 of 46

Rule if both parties are in good faith

If both parties are in good faith, the general rule on accession applies wherein in the
absence of an agreement between the parties, the owner of the principal acquires
the accessory
However, if things can be separated without injury, the owners may also demand
Even if both parties are in good faith, the rule is subject to certain exceptions. If the
accessory is more precious than the principal, the owner of the accessory becomes
the gunner and may demand separation even if the principal thing will be damaged.

Article 468-469 therefore provides the following rules to determine the principal (in order
of preference)
1. That to which the other has been united as on ornament or for its use or perfection
2. That of greater value
3. That of greater volume
4. That which has greater merits (from the combined consideration of utility and

How to determine the principal object in adjunction

Process by virtue of which two movable things belonging to different owners are
united in such a way that they form a single object
An example of adjunction is when a person varnishes his chair using another
persons varnish

Art. 471 Definition of adjunction

If either one of the owners has made the

incorporation with knowledge and
without the objection of the other

thing belong to him be separated, even

though for this purpose it be necessary to
destroy the principal thing, and in both
cases, furthermore, there shall be
indemnity for damages
Their respective rights shall be determined
as though both acted in good faith

Atty. Robles

Art. 472-473: Mixture

If the owner of the principal is in bad faith, the owner of the accessory has the
option to demand payment for the value of the accessory or separation, even
though the principal thing might be destroyed.
If the owner of the accessory is in bad faith, he shall lose the thing and shall be
liable to pay damages according to Art. 470.
In cases where one person is in bad faith and the innocent party has the right to
indemnity, the innocent party may choose to be indemnified in the following
1. Delivery of a thing equal in kind and value (quantity, quality)
2. Payment of price as appraised by experts. Sentimental value should also
be considered as stated in Art. 475

Liquids are combined

Kinds of mixture

Claudio, Cortina, Sarines (2A SY 2009-2010)

Art. 474

Rules for mixture

General Rule: the agreement between the parties shall govern
In the absence of such agreement
Mixture is caused by the will of one owner A forced co-ownership will result with each
and he is in GOOD FAITH or by will of both owner acquiring an interest proportional to
parties, or by chance,
the value of his materials
Mixture is caused by one owner in BAD Such owner loses his materials and shall be
liable to the other owner for damages
If one party was negligent
He shall be liable for damages even if he was
in good faith

Solids are mixed


Combination of the union of materials where the respective identities of the
component elements are lost


Involves at least two things

At least two things

Page 15 of 46

May involve only 1 thing (may
be more) but form is changed

The option of appropriation is not available if the value of the resultant work is
more valuable due to artistic or scientific reasons

Rule if worker or principal is in bad faith

General rule: when the principal is in bad faith, he loses his right to the principal
As such, the owner of the materials has the option to either:
1. Appropriate the work without paying for the labor plus damages
2. Demand indemnity for the material plus damages

Rule if the worker or principal is in good faith

General rule: when the principal is in good faith, he may appropriate the new thing
but he must indemnify the owner of the materials for actual materials used.
When the materials are more valuable than the principal or the labor, the owner of
the materials has the option to:
1. Get the new thing but he must pay for the work OR
2. Demand indemnity for the materials used

The process of giving a new form to anothers material through the application of
General rule, labor is considered the principal object and the material used in
considered the accessory

Art. 475 Definition of specification

If the making is more precious than the transformed thing or is of more value, its
owner may, at his option, appropriate the new thing to himself, after first paying
indemnity for the value of the work or demand indemnity for the material
If in the making of the thing bad faith intervened, the owner of the material shall
have the right to appropriate the work to himself without paying anything to the
maker, or to demand of the latter that he indemnify him for the value of the
material and damages he may have suffered
If the owner of the material cannot appropriate the work in case the value of the
latter, for artistic or scientific reasons, is considerably more than that of the

Atty. Robles


The things mixed or

confused may either
retain or lose the nature


As a rule, accessory follows

the principal
The new object retains or
preserves the nature of the
original object

The right of common dominion which 2 or more persons have in a spiritual

part of a thing, not materially or physically divided
There is a single object which is not physically divided
No co-ownership when the specific portions owned by different people are
already determined and can be identified
Subject matter: undivided thing or undivided right (lease inherited from
deceased parent)
Particular portions of co-owners not yet been defined
o Recognition of equal or proportional shares which determine the
rights and obligations of co-owners
A form of express trust
o Every co-owner becomes a trustee for others

Claudio, Cortina, Sarines (2A SY 2009-2010)

Characteristics of Co-ownership:
1) More than one subject or co-owner
2) One physical whole divided into ideal shares or undivided shares
3) Each ideal share is definite in amount BUT not physically segregated from the rest
4) Each co-owner must respect each other in the common use, enjoyment, or
preservation of the physical whole
o Interests of others must not be disregarded

Profs lecture:
Plurality of subjects
More than one person owns the thing
Recognition that somebody else has the same right over the same thing

Art. 484.
*Co-ownership ownership of an undivided thing or right belongs to different persons
- governing laws: contracts, special provision, co-ownership

As a rule, accessory follows the

The things joined retain their


Special authority to represent

Not necessarily extinguished by
death or incapacity

Purpose: merely for enjoyment

and maintaining of thing in unity
with others
No judicial personality

Ideal division of physical whole
each being the owner of his
equivalent share
Each co-owner may dispose of his
ideal/undivided share (EVEN W/O
CONSENT of others)
HEIRS of deceased co-owners
ACQUIRE respective share
Minority of co-owner cant be
used by others as a defense
against prescription

Judicial personality created distinct

from that of the members
Mutual representation
Extinguished by death or incapacity
of one partner

Only created thru agreement of
Purpose: profit

Joint tenancy
There is physical whole BUT NO
all of them own the whole
Each may NOT dispose of their
share without consent of the rest
Share of deceased joint owner goes
Minority benefits others against
whom prescription will run

By operation of law
Succession or will (property left undivided amongst several heirs)
Fortuitous events (commixtion and confusion caused by accident or chance,
discovery of hidden treasures)
Quasi-contracts (negotiorium gestio/ solution indebiti)

Each co-owner holds almost absolute control over his ideal share
No juridical personality
Co-owners is in a sense a trustee of co-owners

Page 16 of 46

Profs lecture:
CC: true owner of the property saved or taken cared of by the gestor shall be liable for the
expenses of the gestor
o Until paid/ compensated, the gestor will have a lien on the property




Atty. Robles

Each co-owner also shares proportionately in the accretion/ alluvium of the

o Added portion becomes part of property of co-ownership
o Increase benefits of all

Art. 485
Share of co-owners, in benefits and charges, shall be proportional to their
respective shares.
o Any contrary stipulation VOID
Portions belonging to co-owners presumed equal
o Unless contrary proved

Until paid, co-ownership arises permitting the gestor to use the property
while in his possession

co-owner may only use the thing for the purpose for which it is intended
no prejudice to the interests of the co-ownership
other co-owners must not be prevented from making use of thing accdg to their
own rights

Claudio, Cortina, Sarines (2A SY 2009-2010)

Profs lecture:
Alteration act of changing the nature or use of the thing co-owned
unanimous vote for major alterations
o or majority vote
o in case of non-consenting co-owner

option to sell

or buy the shares of the others who did not consent



*Each co-owner may use the thing owned in common, provided
o used in accordance with purpose of which it is intended
o way as not to injure the interest of the co-ownership/ prevent other coowners from using it according to their rights
*Purpose of co-ownership may be changed by: express or implied agreement

Profs lecture:
Reimbursable expenses: for preservation of the property, redound to the benefit of




mere tolerance of one co-owner cannot legalize change in the use

co-owners may make rules as to how to use the thing owned in common
o just and equitable distribution of uses
o right and enjoyment of one co-owner should be limited by a similar right
of another co-owner to enjoy the thing
remedies available to owners in general may be used by co-owners against acts
w/c are contrary to the collective interest


A co-owner may bring an action for the recovery of possession W/O necessity of
joining all co-owners as co-plaintiffs
o Presumed to be for the benefit of all
o If one of the co-owners knows that another had already instituted an
action for ejectment bound by decision made on that action

Provided he consents to the institution of such action

o Covers action against 3 parties
o Covers action against co-owner who takes exclusive possession and
asserts ownership in himself alone

Effect of action against co-owner: recognition of co-ownership

E: To exempt himself from obligation

Page 17 of 46


GR: Each co-owner shall have the right to compel the other owners to contribute to the
expenses of:
1) preservation of the thing or right owned in common
2) taxes

Profs lecture:
Other co-owners right to use the property co-owned should not be impaired by
ones use
o If impaired, then indemnity for the loss or impairment of the enjoyment
of the property should be had

Purpose determined by:

express or implied agreement
nature of the thing
use to which the thing has been previously devoted

Atty. Robles

Co-owner has 2 choices:

1) Contribute to the necessary expenses
2) Expressly renounce interest he has as may be equivalent to what he should
have paid or contributed
o Actually a novation/ dacion en pago/ cession of rights and obligations

Consent of co-owners needed

Would amount to change of debtor novation: consent of

creditor (3 party) who is not one of the co-owners is also
o Renunciation may not be had if it will be prejudicial to the co-ownership.

Co-owner may advance necessary expenses even if the rest opposes because the
negligence of others should not prejudice him
May advance funds then recover from others later
Failure to give notice does not deprive advancing co-owner the right to recover the
others proportionate shares in the expenses
o Effect: co-owner who effected repairs must show the necessity of repairs
and reasonableness of expenses

Claudio, Cortina, Sarines (2A SY 2009-2010)


perpendicular co-ownership
Different stories are owned by different persons

Art. 489.
*Repairs for preservation may be made at the will of one of the co-owners
If practicable: must first notify his co-owners for such repairs
*Improvement or embellishment expenses
decided by majority (Art. 492)

only necessary expenses

preservation expenses: those which if not made, would cause danger to the
existence of the thing/ would diminish the value or productivity thereof
may compel contribution even if incurred without prior notice
useful improvements w/c increase value of property CANT be charged to the other
co-owners W/O LATTERS CONSENT (because purpose of co-ownership is NOT

renounce so much of his undivided interest as may be equivalent to his share of

expenses and taxes
EE: no such waiver shall be made if it is prejudicial to the co-ownership


Proportionate contribution: preservation of the main walls, party walls, other
things used in common
Each floor owner bears preservation expenses of his own floor
Stairs maintained from story to story by those who use the respective stairs

Page 18 of 46

o when co-owner changes the thing from the state in which the others
believe it should remain, or withdraws it from use to which they desire it
to be intended
o Change, more or less permanent
o Changes the uses of thing, and which prejudices the condition of the
thing or its enjoyment by the others
o unanimity of all co-owners needed! (express/ implied consent)

An implied consent would only make alteration legal

Not necessarily make the other co-owners liable for

expenses incurred

Without express/ implied consent: ILLEGAL alteration

Co-owner who made the change may lose what he

has spent, liable for loss and damage

Demolition may be asked for by others

o If not possible: others may ask for
indemnity and w/o being obliged to share in
the expenses of alteration
o Any benefit from alteration would belong to the co-ownership


GR: None of the co-owners shall make alterations in the thing owned in common even though
benefits for all would result
E: With other co-owners consent
EE: withholding consent by one or more of the co-owners is clearly prejudicial to the common
courts may afford adequate relief

Owners are individual and separate owners of the separate units
Areas in building that benefit all are under co-ownership of the different unit
owners (partly co-owned and partly individual type of ownership)

Atty. Robles

Arise from MAJORITY RESOLUTION (in interest not in number)

But if act would be for strict ownership: CONSENT OF ALL

Minority should still be informed (to be heard)
Administration may be placed in the hands of another: Adiminstrator
considered as agent

Court intervention:
o If no real majority/ resolution prejudicial to rights of individual co-owner
court may appoint an administrator
o May be called by minority to act when

majority refuses to correct abuse of administration or


minority is made victim of fraud

alteration is agreed upon instead of act of administration

o only when injury is serious and affects interest of co-owners


Refers only to acts of administration and for better enjoyment of the thing owned
in common
Acts of administration:
o Only enjoyment and preservation of the thing
o Transitory effects
o Alteration which does not affect the substance or form of thing shared in
o May be renewed from time to time
o Not give rise to real right over a thing
o Usually for common benefit of all co-owners


For administration and better enjoyment of the thing owned: resolutions of
majority of the co-owners shall be binding
No majority resolution unless resolutions is:
Approved by co-owners representing the controlling interest in the object of coownership
If no majority/ majority resolution seriously prejudicial
Court at instance of interested party, shall order such measures as it may deem
proper (appointment of Administrator)
Part of a thing belongs exclusively to one of co-owners, remainder owned in
preceding provision shall apply only to the part owned in common

Claudio, Cortina, Sarines (2A SY 2009-2010)






Art. 494.
No co-owner shall be obliged to remain in the co-ownership
o Each co-owner may demand at any time the partition of the thing owned
in common, insofar as his share is concerned
1) Agreement to keep the thing undivided for a certain period of time (not
exceeding 10 years)
2) Donor or testator prohibits partition (not exceeding 20 years)
3) Prohibited by law

No individual co-owner can claim any definite portion of the thing shared in
o Until partition
Co-owner can: alienate, assign, or mortgage only his ideal share in the whole thing
o Full-ownership only on that undivided share
Sale of entire property by co-owner: valid only insofar as his share is concerned
o Unless other consented to the sale
o Only transfers rights of co-owner-vendor to buyer, making buyer coowner of property
o co-owner cannot alienate purely personal rights
o co-owner cannot make a disposition for the purpose of giving the thing
different use from that agreed upon or derived from nature of the thing

o Has full ownership of his pro-indiviso share
o Has right to alienate, assign or mortgage it, and substitute another
person in its enjoyment

Page 19 of 46

*Prescription shall not run in favor of co-owner or co-heir against his co-owners or co-heirs as
long as:
he expressly or impliedly RECOGNIZES the co-ownership



Art. 493.
*Each co-owner shall have full ownership of his part + its fruits & its benefits
o may alienate, assign, mortgage it
o substitute another person in its enjoyment

E: wrt personal rights

*Alienation or mortgage in co-ownership is limited to the portion w/c may be allotted to him
in the division upon termination of the co-ownership

Atty. Robles

Right to demand partition NEVER PRESCRIBES

Co-owner may not acquire exclusive ownership of common property thru
prescription; co-owners trustee for another
o For prescription to run:

there should be a CLEAR REPUDIATION of the claims of others

others were notified of the claim of co-owner asserting

individual co-ownership over the property

evidence of possession must be clear, complete and conclusive

to establish prescription without doubt (adverse and exclusive,
opposed to the rights of others)

1) That he has performed unequivocal acts of repudiation
amounting to an ouster of cestui que trust / other coowners
2) That such positive acts of repudiation has been made
known to other co-owners
3) The evidence must be clear and convincing
1) Co-owners agreed to continue the co-ownership for the period permitted by
2) Co-ownership is imposed as a condition in a donation or a will
3) From the nature of the community it cannot legally be divided (party walls,
conjugal partnership)
4) Partition or division will render the thing unserviceable for the use or purpose
for which it is intended (Art. 495)

Art. 498: thing be sold and proceeds be divided proportionately among co-owners

Claudio, Cortina, Sarines (2A SY 2009-2010)

Partition division of real or personal property among co-owners, so that they may enjoy
and posses the thing severally
Agreement may be in writing or orally

Art. 496.
*Partition may be made by: 1) agreement between parties 2) judicial proceedings (ROC)


*Co-owners cant demand a physical division of thing, when to do so would render it
UNSERVICEABLE FOR USE for which it is intended
- but co-ownership may be terminated in accordance with Art. 498.


includes all creditors who became such DURING EXISTENCE of the co-ownership
contemplated assignees:
o transferee of the part of interest to co-owner
o only have personal rights against the assignor, w/ no right of ownership
over interest assigned
creditors and assignees should be given notice of partition (since they have been
given right to participate in the partition)

Page 20 of 46

judicial or legal dissolution

whole can be given to one co-owner who would be required to indemnify the rest

Art. 498. When common thing or right SOLD and proceeds distributed
*1) whenever a thing is essentially indivisible
2) and co-owners cant agree that it be allotted to one of them who shall indemnify others

Art. 497.
GR: Creditors and assignees of the co-owners may take part in the division of the thing owned
in common and the object being effected w/o their concurrence.
E: Cant impugn any partition already executed
EE: 1) unless fraud or 2) in a case it was made (st. formal opposition presented to prevent it)
w/o prejudice to the right of debtor or assignor to maintain its validity


o Partition is not delivery or conveyance of the property

o Merely a designation of a specific part which belong to each co-owner
2 issues:
Whether the plaintiff indeed is a co-owner?
How the property should be divided?
o If cant agree how: court shall appoint not more than 3 commissioners to
make the partition

Judgment shall state particular portion given to each (metes,

bounds, adequate description)
o If property cant be divided w/o prejudicing interests of other co-owners:
court may order the property be assigned to only one of the co-owners

In this case: other co-owners should pay the assignee as

commissioners deem equitable
Nature and extent of title should be set forth (description of property and persons
interested in the property as defendants)
Property may be sold and profits divided proportionately
o Exact amount should be specified in the judgment
Action to nullify a void extrajudicial partition does NOT prescribe

Atty. Robles



shall not prejudice third persons, who shall retain rights of mortgage, servitude, or
any other real rights belonging to them BEFORE division was made
PERSONAL RIGHTS pertaining to third persons against co-ownership shall remain in
force, notwithstanding partition

permits of a sale of the whole (auction/ purchase; either of personal or real

apply to indivisible object
o can apply to objects though essentially divisible, are rendered indivisible
as partition would be greatly prejudicial to the co-ownership

Mutual accounting of benefits received

Mutual reimbursement for expenses
Indemnity for damages in case of negligence or fraud
Reciprocal warranty for defects of title or quality
Each former co-owner is deemed to have had exclusive possession of part allotted
to him for the entire period during which the co-possession lasted
Partition confers upon each the exclusive title over his respective share

Claudio, Cortina, Sarines (2A SY 2009-2010)


1) Judicial partition
2) Extrajudicial partition
3) Prescription by one of the co-owners or by a stranger
4) Merger
5) Loss or destruction
6) Expropriation


*every co-owner shall be liable for DEFECTS OF TITLE and QUALITY of portion assigned to
each of the other co-owners




*Upon partition
- there shall be a 1) MUTUAL ACCOUNTING OF BENEFITS received 2) and REIMBURSEMENTS
for expenses made
- co-owners shall pay for damages caused by reason of his negligence or fraud

3 persons wrt partition all those who do not intervene in the partition


Page 21 of 46


Ownership of Waters
Reiteration of the rule provided for in the provisions on Waters under the Civil
o GR: All waters belong to the State

E: for those waters found in private lands, w/c necessarily

belong to owners of such lands


Provisions in the NEW CC on Waters Superseded by the Water Code
Water Code of Philippines may be considered as our basic law on waaters
WC detailed & broad enough to cover & therefore supersede provisions of the New
CC on waters

P.D. No. 1067 (Dec 31, 1976) Water Code of the Philippines (WC) & New CC on Waters
Water Code now governs ownership, appropriation, utilization, exploitation,
development, conservation & protection of water resources, subject to provisions
of the Consitution
(Art. 100 of Water Code) Water Code repealed provisions of
o Spanish Law of Waters
o Civil Code
o Other laws relating to waters
Which are inconsistent w/ the provisions of the decree
Provisions of New CC on waters are impliedly repealed insofar as there are
provisions in conflict
o Act as suppletory character
o Art 52 WC: establishment, extent, form & conditions of water not
expressly determined by the provisions of this Code shall be governed by
the provisions of the CC


Atty. Robles

E-E: These waters cease t be of private ownership

once these waters leave the private lands thus
become part of public dominion
Art 6 WC: The following even though on private
lands, still belong to the State
o Continuous or intermittent waters rising on
such lands,
o Lakes naturally rising on such lands,
o Rain water & falling on such lands,
o Subterranean or ground waters; and
o Waters in swamps and marshes
BUT owners of these private lands may make use
of them for domestic purposes even in the absence of
Govt permit
UNLESS required by National Water
Resources Council

Claudio, Cortina, Sarines (2A SY 2009-2010)

GR: All Waters Essentially Belong to the State

E: pertains to waters found in private lands
BUT Art 5. Mentions which waters are considered public dominion

being public ownership, no private person can limit the use of

said public waters
nature of body of water should considered to determine whether the water is of
public or private ownership
Wadsworth v. Smith: If waters, in their natural state, cannot be used for the
carriage of boats, rafts, or other property, such waters are wholly private, not

All Proprietary Rights wrt Water Adhere to the Owner of the Private Lands where these
Waters are Found
Art 7 & 8: owners of private lands will have control over the waters in their
property, even though these waters are of public dominion, once
o they have collected them
o & so long as such waters are being beneficially used for the purposes for
which water was appropriated
Syracuse v. Stacey: Water, when reduced to possession, is property and may be
bought & sold & have market value, if such water is in actual possession & subject
to the appropriators control & mgt
o Running water in natural streams, not yet being appropriated, is not
property in strictest sense; it still belongs to the State



Page 22 of 46


Acquisition of rights over the use of water or
Taking or diverting of waters from a natural source in the manner for any purpose
allowed by law (Art. 9)
Concept of appropriation involves 2 acts:
o Right of enjoyment or use of the waters

Limited to the current state of the body of water concerned

No modification or alteration of such body is involved

o Actual taking of the waters

There is a change in the natural course of the body of water as

it is taken or diverted for a particular purpose, allowed by law
Domestic, municipal, irrigation, power generation, fisheries, livestock raising,
industrial, & recreational, aside from other purposes
o Domestic & recreational: used for personal or leisurely needs

Domestic: for drinking, washing, bathing, cooking or other

household needs; home gardens, domestic animals

Recreational: swimming pools, boating, golf courses, other

similar facilities in resorts etc.
o Livelihood industries:

irrigation purposes utilization of water for producing

agricultural products
o Fisheries utilization of water for propagation & culture of fish as
commercial enterprise
o Industrial purposes utilization of factories, industrial plants & mines
including the use of water as a finished product
o Livestock raising water is utilized for large herds or flocks of animals
raised as a commercial enterprise
o To facilitate smooth running of the government & country

Municipal purposes to supply water requirements of the


Power generation for production of electrical & mechanical


subject to the servitude of the public, nor regarded as public highways by waters
because they are not susceptible of use as a common passage for the public.

Atty. Robles

Possible that waters appropriated for a particular purpose can be applied or

utilized for another purpose
o Result only upon approval of the National Water Resources Council
o Approval for new appropriation would be subject to the condition

that the new use does not unduly prejudice the rights of other
permittees, or

require the increase in the volume of water

the State reserves the right to declare waters not previously appropriated, in whole
or in part, as exempt from appropriation for any or all purposes
o if public policy so requires
Long Island Water-Supply Co. v. City of Brooklyn: Water can be appropriated for
municipal use. In such appropriation, just compensation should be made to the
parties who would be affected.

Claudio, Cortina, Sarines (2A SY 2009-2010)

File application w/ Natl Water Resources Council (NWRC)
NWRC must take the application known to public for any protests
NWRC will decide & determine whether or not to grant or to deny application

Qualifications of the Applicant (also apply to juridical persons whenever appropriate)
1) citizen of the Philippines
2) of legal age
3) must be qualified by law to exploit & develop water resources

Exceptions provided by the Water Code (cases where water permit not necessary)
with regard to the control, protection, conservation & regulation of appropriation
& use of waters
o eg. Appropriation by means of hand carried receptacles
o eg. Bathing, washing, watering, or dipping of domestic farm animals &
navigation of watercrafts of transportation of logs & other objects by

GR: Water right is needed by a person, including government instrumentalities or GOCCs, to
be able to appropriate water
it is a privilege grant by the govt to appropriate & use water
evidenced by a water permit
E: otherwise provided in the Water Code


Page 23 of 46

GR: water permits shall continue to be valid as long as water is beneficially used

specify max amount of water w/c may be diverted or withdrawn
max rate diversion or withdrawal
time or times during the year when water may be used
NWCC can add further requirements it deems desirable

Evidence by a Water Permit

Granting of this is subject to several conditions
o Beneficial use, adequate standards of design construction, those others
that NWRC may impose
Temporary permits may be issued for appropriation & use of water for short
periods under special circumstances
Subject to modification or cancellation by Council
o Only after due notice & hearing
o Such action must be done in favor of a project of greater beneficial use or
for multi-purpose development
o Water permittee who suffers shall be duly compensated by the entity or
person in whose favor the cancellation was made

Time of Acquisition of Right

Acquisition of right to use of water begins FROM THE TIME OF FILING THE
o In cases however, when a permit is no longer needed for exercise of the
right or water right not essential for use of water,


the time when such right was deemed acquired

Base its decision taking into account the relevant factors (not exclusive)

Protests filed (if any)

Prior permits granted

Availability of water

Water supply need for beneficial use

Possible adverse effects

Land-use economics
Only after requisites are satisfied will the application for water permit would be
Upon approval, water permit shall be issued & recorded

Atty. Robles

suspended on grounds on non-compliance w/ approved plans & specifications or

schedules of water distribution
use of water other than those for purpose granted
non-payment of water charges
failure to keep records of water diversion, when required
violation of any term or condition of any permit or of rules & regulations
promulgated by NWRC

Claudio, Cortina, Sarines (2A SY 2009-2010)

Measure & Limit of Water Appropriation

Beneficial use of water
o Utilization of water in the right amount during the period that the water
is needed for producing benefits for which the water is appropriated
o Standards:

Could be prescribed by NWRC depending on different purposes

& conditions for which the water would be appropriated

Basis of measuring & controlling the waters


Every appropriator shall maintain water control & measuring

devices, & keep records of water withdrawal

Transferability of Water Rights

may be lent or transferred in whole or in part to another person
o 2 requirements:

Transfer should be w/ prior approval of NWRC

Done after due notice & hearing

only after due notice & hearing on grounds of
o non-use
o gross violation of conditions imposed in the permit
o unauthorized sale of water
o willful failure ore refusal to comply w/ rules & regulations of any lawful
o pollution, public nuisance, or acts detrimental to public health & safety
o when appropriator is found to be disqualified under the law to exploit &
develop natural resources of the Philippines
o when, in case of irrigation, land is converted to non-agricultural purposes
o other similar grounds



Page 24 of 46

Priorities are alterable

o may be modified on grounds such as greater beneficial use, multipurpose use, & other similar grounds
o should be done after due notice & hearing, & in proper cases, be subject
to payment of compensation
Duties & Rights of Holder of Water Right
exercise it in such manner that rights of 3 persons or of other appropriators
would not be prejudiced
may demand the establishment of easements necessary for the construction &
maintenance of the works & facilities needed for the beneficial use of the waters to
be appropriated
o subject to requirements of just compensation
o easement must be most convenient & least onerous to the servient
o easements may be modified by agreement of contracting parties
provided the same is not contrary to law or prejudicial to 3 persons
holder must be the owner, lessee, mortgage or one having real right over the land
upon w/c he purposes to use water
Lux v. Haggin: Riparian owners have a right of property in the waters or stream. As
such, the owners may reasonably use the waters for purposes of irrigation.
However, this property right may be taken for a public use, but just compensation
should first be made or paid into court. Because of this, a private person cannot


E: during times of emergencies

In cases where recurrent water shortage & the appropriator for municipal use has
lower priority in time of appropriation, then the appropriator shall have the duty to
find an alternative source of supply in accordance w/ conditions set by NWRC.

Presumption as to Priorities
GR: Priority in time of appropriation shall give the better right as regards 2 or more
Use of water for domestic & municipal purposes shall have better right over all
other uses

This requirement does not apply for appropriation for

domestic use
All appropriators of water shall furnish information on water
use (when required by NWRC)

Atty. Robles

Underscores the underlying principle of WC: all waters belong to the State, and
thus, these waters should be used in accordance w/ the greatest benefit & the least
detriment that this utilization will create on the State
Utilization of waters shall be coordinated, protected, & regulated so that superior
rights would not infringe on inferior ones

Claudio, Cortina, Sarines (2A SY 2009-2010)

Permits Required in Certain Cases (Art 40-43, 36)

1. Excavation for the purposes of emission of a hot spring or for the enlargement of the
existing opening thereof
2. If water used for hot spring for human consumption permit of NWRC & DOH
3. Development of stream for recreation purposes
4. Inducement or restraining of rainfall by any method such as cloud seeding


Factors to be Considered in the Preference for the Development of Water Resources
1) The security of the State
2) Multiple use
3) Beneficial effects
4) Adverse effects
5) Cost of development


Water rights in permit is not permitted
o Subject to modifications & reductions

When shortage is recurrent & such reductions need to be

undertaken in the interest of equitable distribution of benefits
among legal appropriators

After notice & due hearing

On occasions of diminution of water supply due to natural

cause & force majeure, the diminution would be borne by the
water users

take the property from another, for an alleged public use without any
compensation being made to riparian owners.
Crawford v. Hathaway: A riparians right to use of the flow of the stream passing
thru or by his land is a right inseparably annexed to the soil not as an easement or
appurtenance, but as a part and parcel of the land. Such right being a property
right, is entitled to protection in the same way as private property rights.


For raising or lowering water level of a river, stream, lake, lagoon or marsh or draining
the same
So long as it is practicable, waters should be reused unless such reuse would
adversely affect public health & safety

Constructions should be approved according to plan by the appropriated govt

agency (Art 44)
Use of artificial means to drain water from high land to law land should also be in
such a manner least prejudicial to low lands, subject to just compensation (Art 47)

Page 25 of 46


Duties of Secretary of Public Works, Transportation & Communication
To promote the best interest by the coordination & protection of flood plain lands
Power to declare flood control areas, to promulgate rules & regulations to control
activities in order to prevent
o Damage, deterioration, obstruction of water flow, change in natural flow
of the river, increase in flood losses & aggravate flood problems

Provisions on Easements in the WC

Art 49: Any person having an easement for an aqueduct to enter upon the servient land for
purposes of cleaning, repairing & replacing
Art 50:
* Lower estate has the obligation
to receive waters which naturally flow from the higher estates, including the stones
or earth they carry with them
not to construct works which will impede their natural flow
o unless he provides for an alternative method of drainage
*Owner of higher estate is prohibited from constructing works w/c will increase the natural
*Easements are created in banks of rivers, streams and shores of the seas & lakes throughout
their entire length & within a zone of
o 3 meters in urban areas
o 20 m in agricultural
o 40 m in forest
for public use, for flotage, fishing & salvage.
Art 52: The establishment, extent, form & conditions, of easements of water not mentioned
in the WC shall be governed in the provisions of the CC.

The Use of Water Should Cause No Damage, or the Least Damage, to Another
*Utilization of water should not, as far as practicable, cause damage or detriment to another


Atty. Robles

May also prohibit the cultivation of river beds, sand bars and tidal flats

Claudio, Cortina, Sarines (2A SY 2009-2010)

Water pollution the impairment of the quality of water beyond a certain standard
o standard may vary according to the use of the water as set by the Natl
Pollution Control Commission

Legal Easement in Favor of the Govt

Upon declaration of flood control areas, the govt may construct the necessary
flood control structures, and as a result, they shall have legal easement for that
o Easement shall be:

as wide as may be needed

along & adjacent to the river bank &

outside the bed or channel or river

Sudden Change of river or Stream Course

The owner of the private land affected by the sudden change in the course of the river or
cannot compel the govt to restore the river
cannot restrain the govt from reverting the stream or river to its former course &
are not entitled to compensation for any damage sustained
BUT shall be owners of the abandoned bed proportion to the area lost by each or,
with proper permit, may undertake the river to its old bed at their own expense

GR: cultivation of river beds, sand bars and tidal flats are prohibited by the WC
E: in instances where a permit is acquired from the Secretary of Public Works, Transpo &
In granting permit, Secretary must bear in mind his duties & permit must be issued
if it will not obstruct water flow or increase flod levels
Permit needed in case of change in river/ stream course and owner of an affected
land should want to return the river or stream
o If granted, work must commence within 2 years from the change in
Permits required in storage of water of a stream in a reservoir & to be able to drill a

Permit Required in Certain Cases

in the control of waters


Research & Water Resources Development

Page 26 of 46

Promulgating of Rules & Regulations

May provide penalties:
o Fine not > P1000 and/ or
o Suspension or revocation of water permit or other right to use the water
Violations thereof may be administratively dealt with by Council
Rules & regulations shall take effect 15 days after publication in newspapers of
general circulation
May also approve rules & regulations prescribed by any govt agency that pertain to
utilization, exploitation, development control, conservation, or protection of water

Powers of the Council

National Waters Council

body takes w/ administration & enforcement of the WC provisions
Administration & enforcement includes:
o Granting permits, imposition of penalties for administrative violations of
the WC
o Makes all decisions & determinations provided for in the WC

E: for those functions specifically conferred by the Code to

other govt agencies
o Can deputize any official, agency to perform any of its specific functions
& activities



National Pollution Control Commission

to issue permit to build any works that may produce dangerous pr noxious
substance or perform any act which may result in the introduction of sewage,
industrial waste, or any pollutant into any source of water supply
to recommend the issuance of a permit to the Council regarding the dumping into
rivers & waterways of tailing from mining operations & sediments from placer
to prohibit or regulate the application of agriculture fertilizers & pesticides in areas
where such application may cause pollution of a source of water supply

Atty. Robles

shall provide a continuing program for data collection, research & manpower
development need for appropriation, utilization, exploitation, conservation, and
protection of the water resources of the country
authorized to impose & collect reasonable fees or charges of water resources for
development from water appropriators
o E: for purely domestic purpose
Authorized to enter upon private lands
o Done only w/ previous notice to the owner
o for the purpose of conducting surveys, & hydrologic investigations, & to
perform such other acts necessary in carrying out their functions
including the power to exercise the right of eminent domain

Claudio, Cortina, Sarines (2A SY 2009-2010)

Quasi-Judicial Powers
has authority to investigate & decide cases in its jurisdiction
its or its duly authorized representatives powers range from administering oath to
compelling attendance of witnesses
can issue subpoenas & subpoena duces tecum
o non-compliance to such issuances would be punished inn the same
manner as indirect of an inferior court

Approval of Projects
programs or projects which involve the appropriation, utilization, exploitation,
development, control, conservation, or protection of water resources must be
approved first by Council before executed
exemption from approval is Councils discretion
public consultation may be undertaken before certain water resources
development projects can be implemented
For approval of hydraulic structures plan & specifications al
o still subject to review by the govt agency whose functions cover the type
of project for which structure is intended
o recommendation submitted to Council for final decision on approval
o approval whether the plans conform based on requirements of WC &
rules & regulations promulgated by the Council
o even if approved, engineers & constructors who planned & built the
structures are not exempt from liability for damages arising from failure
of plan or structures due to defect in plan construction

action to make them liable should be filed within 10 years from

the completion of the structure

action to recover such damages must be brought within 5 years

from such failure


aggrieved party must file complaint with CFI pursuant to ROC

Page 27 of 46

Yates v. Milwaukee definition:

A Riparian Proprietor
1. one whose land is bounded by navigable stream
2. has certain rights and correlative duties to the land and adjoining body of
water involved.

Riparian RIGHT = drawn from the full dominion over the

owners property lying alongside of the river




Provides for penal sanctions & periods when such actions would prescribe
Art 90: sanctions acts of non-compliance w/ the Councils authorized regulations
o Punishable by suspension or revocation of the violators water permit or
other right to the use of the water & or the fine of not exceeding P1k
Art 91: enumeration of acts that may arise put of illegal use of public waters

Scope of Jurisdiction
original jurisdiction over disputes involving appropriation, utilization, exploitation,
development, control, conservation & protection of waters within the meaning &
context of the provisions of the WC
Councils decision immediately executor
o May only be suspended upon filing of a bond, amount of which fixed by
Council, in order to answer for the damages occasioned by the
suspension or stay of execution
o Decide within 60 days after matter is submitted by the parties for
decision or resolution
o (In execution of decision) can issue writs of execution & have assistance
of local or natl police agencies
o Appealable to CFI of province where the subject matter of controversy is

Filed w/in 15 days from date of receipt of copy of decision

Based on grounds: GAD, question of fact/ law

Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)

*In effect, the title is in a CONCEPT OF A USUFRUCT. Owner can build dams or any structure
but if state determines such is an obstruction then the state may require its removal and
forbid the use of the river bed.
Riparian owner enjoys right to use the submerged land and right to its fruits but
does not have the absolute right of disposal.

*Title over the submerged land is not full and complete as State has greater power of control
to the navigable stream.

Riparian LAND
A.k.a Fast land, Upland.
Land bounded by or fronting a navigable stream
It is such raised ground or soil beside a river that is apparent to the naked eye.
Title is: ABSOLUTE, FULL or COMPLETE, riparian owner has absolute disposal
o Title is technical or qualified because it is subordinate to the public right
of navigation.
o Owner has protection against third parties but not to the absolute power
of the Congress over the improvement of navigable waters.
o Submerged land: bed of the river opposite its upland

Coverage: river bank to the middle thread of the stream

Sturr v. Beck
Riparian proprietor of land bordering upon a running stream to the benefit derived
from the flow of its waters is a natural incident to, or one of the elements of his
estate, and that it cannot be lawfully diverted against his consent.

BUT, alluvial deposit is not automatically registered land simply because

the lot which receives this accretion is covered by Torrens title.
Ownership over the accretion is GOVERNED BY THE CIVIL CODE.

Automatic ownership once the deposit of soil can be seen.

Failure to register the acquired alluvial deposit by accretion

subjects accretion to acquisition through prescription by third

Riparian owner obtains right and title to soil formed by accretions, exclusively.
o No need for him to perform acts of possession before he be considered
the soil deposits owner. Ownership is vested AUTOMATICALLY.

REQUISITES of Accretion:
1. The deposit is gradual and imperceptible
2. Results from the effects of the current of water, and
3. Land where accretion takes place is adjacent to the riverbank.

Accretion is gradual

Page 28 of 46

Accretion is identifiable at once.


CODE definition: Process whereby the current of river, creek, or torrent segregates
from an estate on its bank a known portion of land and transfers it to another
Another defn: removal of a considerable quantity of earth upon or annexation to
the land of another, suddenly and by perceptible action of the water.

Ferrer v. Bautista Definition of Alluvium:

Soil deposited or added to the lands adjoining the bank of rivers, gradually received
as an effect of the current of waters.


To the land owners adjoining the bank of rivers belong the accretion which they
gradually receive from the effects of the current of waters.

Potomac steamboat co v. steamboat co:

owner of land fronting the river is not considered as a riparian owner if such land is
separated by a street from such river.
Owner must take not of the boundaries of his land. If it has a water boundary, he is
a riparian owner entitled to riparian rights, but if it is bound on all sides by the land,
he cannot be held as riparian owner.


Yates v. Milwaukee:
The right of the riparian owner over the submerged land is at all times subordinate
to the public right of navigation. However, the riparian owner is not left without
any remedy as he is entitled to just compensation.

Atty. Robles

entitled to ownership over the deposit of soil that he gradually receives

due to the current flow of the navigable stream adjoining his land
IMPORTANT: ascertain the boundaries of ones property to determine
the corresponding rights over the deposits accruing.



Accretion is retained by the owner

from which the land was removed.

Owners bear the expense if they want to revert the river to its former course. The
law allows this but permission from the proper government agency must first be

Remedy to two or more owners affected by the new course of the river:
o Old bed shall belong to them in PROPORTION to the area lost by them

Why the old bed is not granted to the adjoining riparian owner?
o Code commission says that the purpose of the law is to COMPENSATE for
the LOSS of the land occupied by the new bed.
o More equitable to compensate the actual losers than to add to those
who lost nothing.

Claudio, Cortina, Sarines (2A SY 2009-2010)

WATER CODE: ART. 10. Appropriation of water for the following purposes:

Difference of water code and civil code provision: Water code specifically states
that the owners of the affected lands cannot compel the governmen to reinstate
the river to its former bed.


Change must be sudden (by natural means and not artificial)

Changing course must be more or less permanent.
Complete abandonment by the government
a. If the government seeks to restore the river to its old bed, then the
owners of the land affected can no longer claim ownership over the
old river bed
River must continue to exist ( river did not dry up or completely disappear)

REQUISITES of Change of rivers course:


Same mandate with ART. 461 of CIVIL CODE: river beds which are abandoned
through the natural change in the course of the waters IPSO FACTO belong to the
owners whose lands are occupied by the new course in proportion to the area lost.

WATER CODE: ART. 58. SUDDEN CHANGE in the Rivers course

Previous owners of the new bed shall be considered as the owners of the old or
abandoned bed once the river suddenly changes its course.


Page 29 of 46

Franchise or concession of the water right must be obtained first before the use of
water in Art.10 is allowed.
o Power generation approval by the Congress must first be obtained.
o Irrigation procedures set forth by the Irrigation law must first be
complied with.

If he uses the water for consumption,

he may not use more than his reasonable share

Not pollute the water

Water he did not consume must be returned to the stream

before it passes his land
Related provisions:
o ART. 510 of CIVIL CODE: riparian owner must not prejudice the rights of
the owners of the lower estates
o ART. 51 of the Water Code: Zones subject to the easement of public use
(recreation, navigation, floatage, fishing and salvage)

3 meters in urban areas

30 meters in agricultural areas

40 meters in forest areas

No person is allowed to stay in this zone longer that what is

necessary for the aforementioned purposes or build structures
of any kind.

Riparian owner must not prejudice the rights of other riparian owners and the
public in general.
o He has rights to the use of the river to the extent beneficial to him and
his riparian land for any legitimate purpose.

Power generation
Livestock Raising
Recreational, and
Other purposes


Atty. Robles

Art 464, Civil Code: State owns the islands formed:

o on the seas within the jurisdiction of the Philippines
o navigable and floatable rivers

Art. 465. Riparian ownership of islands:

Claudio, Cortina, Sarines (2A SY 2009-2010)

Navigability is more of a question of fact than of law.

o Peyroux v. Howard: ebb and flow of the river need not be strictly
construed. It is enough that the tide has such an effect on the current
that it causes a rise and fall of the water.

Non-navigable rivers naturally unfit for public use and neither flows nor
reflow with the tide


TYPES of river:
1. Public River
a. Navigable rivers in its natural state, affords a channel for useful
commerce and not such as is only sufficient to float a banca or canoe.
1. Waterway is susceptible for transportation of people
and goods
2. Usable in customary modes of trade and travel on
3. Water must be navigable in their natural and ordinary
4. Water flows and re-flows with the tide.

Parts of the River:

1. Bed- where the river lies
2. Running water/Stream- surface drainage where the erratic flow of current is seen
3. Bank limits the waters to a natural channel, if and when, they rise.

Definition: a large natural stream of water emptying into an ocean, lake or other body of
water and usually fed along its course by converging tributaries.
Phil. SC broadened the definition to include the river banks and bed.



Private River as defined in Art. 502 of the Civil Code:

Waters that rise continuously or intermittently on lands belonging to private
persons from the moment they leave such lands are of public dominion.

Brought about by the successive accumulation of alluvial deposits in nonnavigable and non-floatable rivers


Page 30 of 46

always include the idea of occupation

o E: Art 537 Acts merely tolerated, and those clandestinely and without
knowledge of the possessor of a thing, or by violence, do not affect

Profs Lecture:
Possession a relation of power and control effective of a person over a thing
Independent of ownership
One does not have to be an owner to acquire possession of a property

Possession and Kinds Thereof

ART 523. Possession holding of a thing or the enjoyment of a right whether by material
occupation or by the fact that the thing or right is subjected to the action of your will

Public ownership of river is reflected through various laws:

o Roman law: running water is common to mankind
o French law: public things, the use of which is common to all
o US law: public streams are owned by the State and held in trust for the
people ( Public Trust doctrine)

The state acts as juridical representative and holding the

property for them.
Ensminger v. People:
Riparian ownership besides a non-navigable stream extends to the center thread of
Even if the river is non-navigable, the riparian owner has the exclusive use of the
area extending to the low-water mark unless such area is expressly made the
subject of some kind of servitude
Rights of the public to the use of rives is thus limited to their waters and beds.
Abridgment of such right is remedied by just compensation.


Atty. Robles

Detention or enjoyment of a thing or right which a man holds or exercises in his

2 things REQUIRED:
1) Occupancy, apprehension or taking
2) An intent to posses (animus possidendi)

Claudio, Cortina, Sarines (2A SY 2009-2010)

Types of Possession thru an Agent

1) Necessary exercised in behalf of:
a. A conceived child
b. Juridical persons (not sui juris)
c. Conjugal partnership by their respective representatives

ART. 524.
*Possession may be exercised:
1) in ones own name 2) in that of another
- not necessary that the owner/ holder of the thing exercise personally the rights of
possession which may be exercised thru an agent

Classes of Possession: Possession

1) of owner and in concept of holder
2) by ownership & possession in the name of another
3) in good faith & in bad faith

Degrees of Possession: Possession

1) w/o title, Mere holding
2) w/ juridical title but not that of ownership
3) w/ a just title or a title sufficient to transfer ownership but not from the true owner
4) w/ a just title from the true owner

Constructive possession possession is under title calling for the whole

Actual possession of a part of a property is deemed to extend to the whole, as
shown by limits or boundaries described in the title

Profs Lecture:
To be a possessor in legal sense
There ought to be a THING coupled with intent to POSSESS
o W/o thing, there is nothing to possess
o Material occupation or mere holding not enough necessary for intent to
possess as ones own


Voluntary in cases of agents or administrators appointed by the owner or

Difference between GF & BF manner of acquisition

Possessor in GF:

Page 31 of 46

ART. 526.
*Possessor in GF: not aware that there exists in his title or mode of acquisition any flaw which
invalidates it
*Possessor in BF: possesses anyway even if aware of such flaw
*May be a basis of GF: mistake upon a doubtful or difficult question

Effects of Possession in Concept of Owner

1) Possession is converted into ownership by the lapse of time necessary for
2) Possessor can bring all actions necessary to protect his possession, availing himself
of any action which an owner can bring
o E: accion reinvidicatoria
o Proper action: accion publiciana
3) Possessor can ask for the inscription of his possession in the registry of property
4) Possessor can demand fruits & damages (upon recovering possession from one
who has unlawfully deprived him of the property)
5) Possessor can do everything that the law authorizes an owner to do

When possessor in concept of owner

May be owner himself/ or one who claims to be so
Concept: opinion of others, belief of others

When possessor mere holder/ not in concept of owner

Holder acknowledges in another person a superior right, ownership (whether his
belief be right or wrong)
Thus, possible that one person exercises in the concept of holder while another as

ART. 525. *Possession of things or rights may be had in 1 of 2 concepts:

1) In concept of owner
2) In that of the holder of the thing or right to keep or enjoy it, ownership pertaining to
an owner


Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)

ART. 531. How Possession is Acquired

1) By material occupation (detention) of a thing
Or by exercise of a right (quasi-possesion) w/c includes:
o consitutom possessorium exists when a person who possessed property
as an owner, now possesses it in some other capacity, as that of lease or

Acquisition of Possession

ART. 530. *Object of possession: only things and rights susceptible of appropriation
Susceptible of prescription: all thins w/in the commerce of man
o There are more things w/c can be object of possession than can be object
of prescription
o Not all things that can be appropriated can be object of prescription

ART. 529. Continuity of enjoyment of possession

*presumption: possession continues to be enjoyed in the same character in which it was
- unless contrary proved

ART. 528. When GF ceases

Possession ceases to be in GF from the moment defects in the title is made known
to possessor by extraneous evidence, by suit/ recovery of property by true owner
GF ceases from the date of summons to appear at the trial for an action to recover
o If date of summons not on record dare of answer will be adopted

ART. 527. *GF always presumed; burden of proof on possessor alleging BF

Not necessarily says GF exists, but that it is presumed to exist

One who is unaware that there exists a flaw w/c invalidates his acquisition of the
o GF: possessors belief that the person from whom he received a thing
was the owner of the same thing & could convey his title
Possessor in BF:
One in possession of property knowing that his title is defective
o Only personal knowledge in one title or mode of acquisition can make
him a possessor in BF
o BF is not transmissible from 1 person to another even to heirs


Page 32 of 46

Elements of Acquisition through Another

1) The rep or agent has intention to acquire the thing or exercise the right for
another, & not for himself
2) The person for whom the thing has been acquired or the right for another
exercised, has the intention of possessing such thing, or possessing such right
o Agency most usual form to acquire for possession for another

Under such authorization, principal acquires the possession

from the moment the agent holds the thing for the former

Elements of Personal Acquisition

1) must have the capacity to acquire possession
2) must have intent to possess
3) possibility to acquire possession must be present

ART. 532.
*Possession may be acquired by:
1) The same person who is to enjoy it
2) His legal representative
3) Any person w/o any power whatever
o In this case, possession shall not be considered as acquired until the
person in whose name the act of possession was executed has ratified the

w/o prejudice to the juridical consequences of negotiorum


Occupation acquiring possession but not rights

Kind of possession acquired is only possession as a fact but not legal right
possession (w/c may be under title of ownership)

Elements of acquisition of possession (must concur):

1) Corpus material holding of the thing
2) Animus - intent to possess it



tradition brevi manu exists when a person who possessed property not
as an owner, now possesses it as an owner
By subjection to our will w/c includes:
o Traditio longa manu delivery by consent or mere pointing
o Traditio simbolica effected by delivering some object or symbol placing
the thing under the control of the transferee
By constructive possession or proper acts and legal formalities

Atty. Robles

Negotiorium gestio - unauthorized representation when one

person voluntarily manages the affairs of another

Succession mortis causa

If the heir ACCEPTS heirs acquire possession from the moment of death since there
is no interruption
If the heir REFUSES/ incapacitated to inherit, he is deemed never to have possessed
the same.

BF is personal and intransmissible

o Effects of which must therefore be suffered only by the person in BF, his
heirs should not be affected
GF can only benefit the person who has it
o GF of heir cant erase the effects of the BF of his predecessor

Refers to possession of things only, not possession of rights

Claudio, Cortina, Sarines (2A SY 2009-2010)

ART. 536. *Possession may not be acquired thru force or intimidation as long as there is a
possessor who objects thereto

Incapacitated insane, lunatic, no capacity to act (deaf-mutes who cannot read & write,
spendthrifts, those under civil interdiction)

ART. 535. *Minors & incapacitated persons may acquire possession of things
But they need assistance of legal rep in order to exercise the rights which from the
possession arise in their favor

ART. 534. *One who succeeds by hereditary title shall not suffer the consequences of
wrongful possession of the decedent
If heir is not aware of the flaws affecting it
But effects of possession in GF shall benefit successor only from the date of death of
the decedent

ART. 533.
*Presumption: possession of hereditary property deemed transmitted to heir
- w/o interruption &
- from the moment of death of decedent
- in case inheritance is accepted
one who validly renounces an inheritance is deemed to
never to have possessed the same


When one believes that he has an action or right to deprive another of holding a
thing and a holder refuses to deliver
must invoke the aid of court

If dates of possession are the same/ both possess at the same time
the one who presents (or has) title

If both are present

o one longer in possession (if there are 2 possessors)

If a question arises/ conflict or dispute regarding fact of possession

present possessor preferred

Page 33 of 46

*GR: Possession as a fact cant be recognized at the same time in 2 different personalities
possession in different concepts or different degrees


applies to preference of possession (involving real or personal property)

Tolerance permitted; differs from abandonment and negligence

Where a person occupies anothers land with latters permission (or tolerance), the
occupier, no matter how long may have remain, can NEVER acquire ownership,
because he never had possession
vs. Abandonment: If an owner abandons, as when the proper period for
prescription, he brings no action, the possession of another will ripen into
vs. Negligence: silence or inaction

ART. 537. *The following do not affect possession:

1) Acts merely tolerated
2) Acts executed clandestinely & w/o knowledge of the possessor of a thing
3) By violence

Possession cannot be acquired through:

1) Force or intimidation as long as a possessor objects thereto
2) Mere tolerance (permission)
3) Clandestine, secret possession

Atty. Robles

Profs lecture:
By force not necessarily mean harm or physical force
act of entering the property and excluding the person therefrom from entering the

Claudio, Cortina, Sarines (2A SY 2009-2010)

Profs lecture:

Writ of Preliminary Mandatory Injunction

GR: injunction cant substitute for another, actions to recover possession
the possessor has in his favor the presumption of rightful possession, at least until
the case is finally decided
E: usurpation
Where allows, in the meantime, the writ of preliminary mandatory injunction
because there are present prolonged litigations between the owner and usurper,
and the former is frequently deprived of his possession even when he has an
immediate right thereto

Legal Means for Restoration of Possession

to prevent spoliation or disregard to public order
to prevent deprivation of property w/o due process of law
to prevent a person from taking the law into his own hands

If possession of the one who forcibly entered exceeds 10 days, the injunction
would no longer be available
o Possession has already stabilized
o Remedy: Rule 70 Forcible Entry or Unlawful Detainer
Purpose of preliminary mandatory injunction: hasten the process of ejecting the
person who forcibly entered into the property, but no prohibition or bar for using
Rule 70
Rule 70
o can only be used from 1 day to 1 year from forcible entry
o after the period, remedy is: accion publiciana or reinvindicatoria
court would not accept petition for preliminary mandatory injunction without
certification from Katarungan Pambarangay that the parties went thru mediation

To consolidate title by prescription, possession must be:

o Under the claim of ownership
o Peaceful, public, uninhabited
It is only conviction of ownership, externally manifested, which generates


Page 34 of 46

GR: One who holds merely in trust cannot become the owner thru prescription
E: if there is repudiation of trust

Profs lecture:
*One must know of no flaw in his title.

ART. 540. *Only possession acquired and enjoyed IN CONCEPT OF AN OWNER can serve as
title for acquiring dominion.


Specific Right to be Respected in Possession

every possessor protected whether in concept of an owner or in concept of holder
reason: possession is very similar to ownership (modifies ownership)
possession almost invariably gives rise to presumption that possessor is owner

Even the owner cannot forcibly eject the possessor

Owner must still go thru judicial process

Atty. Robles

Requisite for the Issuance of Writ

1) In forcible entry cases (in original court) file w/in 10 days from the time the
complaint is filed (not from the time dispossession took place)
2) In ejectment (unlawful detainer cases) in the RTC or CA file w/in 10 days from
time appeal is perfected

If deprived of possession thru forcible entry

a. w/in 10 days from filing complaint present motion to secure from court a
writ of prelim mandatory injunction to restore him in his possession
b. court shall decide in 30 days

If both present a title

o thing shall be placed in judicial deposit pending determination of its
possession or ownership through proper proceedings; the court shall
Effects of Possession
ART. 539.
1) Right of a person to be respected in his possession
2) Protection in said right or restoration to said possession thru legal means


Possession is presumed ownership unless contrary is proved.

w/c he is not
obliged to prove

Art 541
possession would
only give rise to
legal presumption
that one has just

Art 1131
For purposes of
prescription, title
must be proved

Just title in PRESCRIPTION

a) just title must be proved
b) titulo Colorado (merely colorable title
although there was a mode of transferring
ownership, the grantor was not the owner)

Claudio, Cortina, Sarines (2A SY 2009-2010)

Kinds of Titles
1) True and Valid Title (Titulo Verdadero y Valido) title w/c by itself is sufficient to
transfer ownership w/o necessity of lapse of prescriptive period
2) Colorable title (Titulo Colorado) title where a mode of transferring ownership, still
something is wrong, bec. grantor is not the owner

*If one aspires to be an owner he must prove title

*If he is merely in peaceful possession of the thing not obliged to prove title

Profs Lecture:
Art 433
Actual possession under
claim of ownership raises
disputable presumption of
ownership. The true owner
must resort to judicial
process for the recovery of
the property.
Possession gives

Just title in POSSESSION

a) Just title is presumed
b) Just title titulo rerdadero y valido
(true & valid title sufficient to
transfer ownership)

2 Requirements to raise disputable presumption of a thing or right

1) Actual possession (actual/ constructive)
2) Possession in concept of owner

*Legal Presumption: Possessor in concept of owner possesses with a just title and he cannot
be obliged to prove it


Putative Title Titulo Putativo title where although a person who believes himself
to be the owner, he nonetheless is not, bec. there was no mode of acquiring

Refers to all kinds of possession (in concept of owner or not, in GF or BF, or in ones
own name or in anothers)
But refers only to possession of things, not to rights

Article does not establish a mere presumption

Gives right

Page 35 of 46

GF ceases when possessor becomes aware of the grounds in support of an adverse

Legal interruption of possession in GF takes place when action is filed against the



The fruits received are generally used for the consumption & the livelihood of the
possessor, & his life & expenses may have been regulated in view of such fruits
The owner has been negligent in not discovering or contesting the possession of
the possessor
Between the owner, who has abandoned his property and left it unproductive, and
the possessor, who has contributed to the social wealth by the fruits he has
produced, the law favors the latter


ART. 544.
*Possessor in GF is entitled to the fruits received BEFORE possession is legally interrupted
*Natural & industrial fruits considered received from the time they are gathered or severed
*Civil fruits- deemed to accrue daily and belong to the possessor in GF in that proportion

ART. 543.
*Each one of the participants of a thing possessed in common
deemed to have exclusively possessed the part w/c may be allotted to him upon
division thereof, for the entire period during w/c the co-possession lasted
*Interruption in the possession in common
shall be to the prejudice of all possessors
E: in civil interruption ROC applies


*The possession of real property presumes that of the movables therein, so long as it iis
shown or proved that they should be excluded.


Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)

GR: If useful improvement can be removed w/o injury to the principal thing, possessor in GF
may remove it, instead of asking for reimbursement for expenses incurred

*Possessor in GF

ART. 547.

Atty. Robles


*Possessor in BF
- no right to remove the useful improvements

Page 36 of 46

If in GF:
- gathered or severed or harvested fruits are his
-pending and ungathered fruits are pro-rated
between possessor & owner of the expenses,
net harvest, charges
If in BF:
-return the value of the fruits already received &
value of fruits w/c owner or legitimate
possessor could have received w/ due care &
diligence, MINUS necessary expenses for
cultivation, gathering and harvesting, to prevent
owner from being unjustly enriched
- no rights at all over pending or ungathered
E: owner of the principal chooses to keep the improvement by paying the expenses incurred
or increase in value


*should possessor refuse to accept, he shall lose right to be indemnified in any other manner

*owner of thing may give the possessor in GF right to finish the cultivation & net proceeds
ART. 546. 548. 549
Necessary expenses
Useful expenses
Luxury/ ornamental expenses
Gastos necessario those w/o which the Gastos Utiles those that add value to the -Add value to the thing only for certain
thing would physically deteriorate or be lost
property or increase the objects determinate persons wrt their whims
-Made in preservation of the thing
productivity, or useful for the satisfaction -Neither essential for preservation nor useful to
-Imposed by existence of the thing & have of spiritual & religious yearnings
everybody in general
no relation to the desire/ purpose of the
-Reimbursed whatever the juridical character
of the person who advanced them
In sum: Rights of Possessor in concept of an owner
If in GF:
If in GF:
If in GF:
-entitled to refund
-right to reimbursements
-no right of refund or retention
-to retain the premises until paid
-with right of retention until paid
-can remove if no substantial injury caused
- right of removal provided no substantial
-owner has option to allow the possessor to
damage or injury caused to principal
remove or retain for himself the ornament by
refunding the amount spent
If in BF:
If in BF:
If in BF:
-entitled to refund
-not entitled to any right regarding useful
-no right to refund or retention
-w/o any right of retention
-can remove if no substantial injury caused
-owner option to allow the possessor to remove or
retain for himself the ornament by refunding the
value at the time the owner enters into possession


Divided pro rata (accdg to time of possession):
Expenses & net harvest of cultivation
Charges (incurred bec of land & fruits and taxes, or interest on mortgage)


Possessor in BF is always liable for loss or deterioration whether before or after

judicial summons, whether due to fortuitous event or not

Possessor in GF is not liable for loss or deterioration BEFORE receipt of judicial

After summons: Possessor in GF still not liable
o E: if there is fraudulent intent or negligence on his part

Claudio, Cortina, Sarines (2A SY 2009-2010)

ART. 553.

ART. 552.
GR: Possessor in GF not liable for deterioration or loss of the thing possessed
E: when proved that he has acted w/ fraudulent intent or negligence, after the judicial


Inure to the benefit of the person who has succeeded in recovering possession
Includes all natural accessions referred to by Art. 457 & 465
o Increase in value caused by construction of a railroad, road, or canal,
widening of streets, rising of fountains of fresh or mineral water,
increase of foliage of trees, etc.

every possessor
GF or BF
In concept of owner or in concept of holder
In ones own name or un another

ART. 550. LITIGATION COSTS borne by every possessor

Not to the owner or the person adjudged by the court to be lawfully entitled to


See table above

See table above


Necessary expenses are not considered improvements; if object for which they
were incurred no longer exists at the time of entry upon possession, the lawful
possessor or owner has to pay for them

Page 37 of 46

Possession over movables lost:

If possessor has no idea at all about the whereabouts of the movable, even if it is
found or taken by another

Control juridical control or right, or that the thing remains in ones patrimony


*Movables not deemed lost as long as these remain under control of possessor, even though
for the time being he may not know their whereabouts


Voluntary will or intent
1) Abandonment of the thing
2) An assignment made to another either by onerous or gratuitous title
Against will of possessor
3) Destruction or total loss of the thing/ bec it goes out of commerce
4) Possession of another (st. Art. 537), if the new possession has lasted longer than 1
year (final judgment in favor of another with a better right, expropriation,
prescription in favor of another, recovery or reinvindication by legit owner or
o But real right of possession is not lost till after lapse of 10 years
5) When wild animals escape from possessors control (Art. 560)


*Present possess who shows his possession at some previous time
presumed to have held possession also during the intermediate period in the absence of
proof to contrary

*One who recovers possession shall not be obliged to pay for improvements which ceased to
exist @ the time he takes possession of the thing.

Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)

Owner cannot recover (even if offer reimbursement) (w/n owner had lost or been unlawfully
1) If possessor acquired property in GF by purchase from merchants store, or in friars
or markets in accordance w/ the Code of Commerce & special laws
2) If owner by his acts, silence or negligence is estoped

If possessor acquired the object in GF at a public sale or auction

Owner may recover but must reimburse

If owner had lost property or been unlawfully deprived of it
Owner may recover w/o reimbursement from possessor in BF and in GF

ART. 559.
GR:*Possession of movable property acquired in GF = title
*Nevertheless, one who lost any movable or has been lawfully deprived thereof, may
recover from the person in possession
E: Possessor of movable lost or w/c the owner has been unlawfully deprived has acquired it in
GF at a public sale
owner cannot obtain its return w/o reimbursing the price paid therefor

ART. 558
GR: Acts relating to possession, executed or agreed to by one who possesses a thing
belonging to another as a mere holder to enjoy or keep it
do not bind or prejudice the owner
E: owner gives to holder express authority to do such acts, or ratifies them subsequently

GR: Not deemed lost, or transferred for the purposes of prescription to the
prejudice of 3 persons
E: as provided in Mortgage Law and Land Registration Laws

Possession over movables is no lost:

When possessor more or less knows its general location not necessarily its precise
or definite location


If possessor had obtained goods because he was an innocent purchaser for value &
holder of a negotiable document of title to the goods


Applies to both GF & BF possessors

Recovery of possession must have been thru means prescribed by law &
competent authority

Page 38 of 46

ART. 562. USUFRUCT Definition/ Elements:

Real right, of a temporary nature
Such right authorizes its holder to enjoy all the benefits which result from the
normal enjoyment or exploitation of anothers property
with the obligation to return, at the designated time, either the same thing or in
special cases its equivalent.

ART. 561.
One who recovers, accdg to law, possession unjustly lost
Deemed (for all purposes) w/c may redound to his benefit, to have enjoyed it w/o

3 Characteristics:
1) Wild naturally independent of man
2) Domesticated or tamed accustomed to & recognizes authority of man
o Become wild again if they recover natural freedom; no longer w/in the
sight & control of man
3) Domestic or tame born & reared under control & care of man
o Considered personal property
o Dont become res nullius

E: abandoned by owner


*Wild animals possessed only while they are under ones control
*Domesticated or tamed considered domestic or tame, if they retain the habit of returning
to the premises of the possessor


Atty. Robles

o JUS UTENDI = use of the object
o JUS FRUENDI = use of the fruits


Simultaneous (multiple usufructuaries can

Claudio, Cortina, Sarines (2A SY 2009-2010)

As to the thing
As to the usufructuaries

ART. 564. CLASSIFICATION of Usufruct:

ART. 563. SOURCES of Usufruct

Usufruct can be constituted by
o Law
o Will of Private Persons in acts inter vivos
o Will of Private Persons in a last will and testament
o Prescription
Usufructs cause can be
o Legal
o Voluntary
o Mixed (legal and voluntary)

All properties including the rights can be the object of usufruct so long as the rights have
individual existence.
-Consumable things = usufruct here can upon the value, quality or quantity.

Edgardo Paras formula to ascertain the meaning of usufruct:

USUFRUCT = FULL Ownership Naked Ownership.
o Full ownership = naked ownership + usufruct
o Naked ownership = full ownership + usufruct

Obligations of the Usufructuary:

1. Preserve the:
form = purpose the object was intended for by the owner
b. substance = material which makes up the object



Page 39 of 46

Characteristics of the Usufructuarys Rights:

1. Transferrable
2. Assignable
3. Not exempted from execution
4. Can be sold at public auction
5. To bind third parties, rights of usufruct over real property must be duly registered.
6. Limited to Fruits, and not cover the capital
a. Fruits = produced by the thing regular interval, without diminishing the
things substance.
b. If products diminish the substance, such products are:
i. considered part of the capital, and
ii. Do not pertain to the Usufructuary
Stock Dividends are civil fruits, not part of the capital


1. Natural
2. Industrial
3. Civil Fruits
*Hidden Treasure
> If found in Property which he has a usufruct = Usufructuary has no right to its enjoyment
> If Usufructuary found the treasure = entitled to of it as the finder.

Governing RULES:
1. Stipulation of the Parties
2. In case of deficiency of (1.), applicable Civil Code provisions
3. In gratuitous usufruct = Laws on Donations
4. In inter vivos usufruct = Usufructuary is not liable for debts of the grantor

ART. 565. RIGHTS and OBLIGATIONS of the Usufructuary

As to the TERM

enjoy the thing at the same time) or

Sucessive (usufructuaries would have to
enjoy the thing one after the other.

Atty. Robles

Lease made by the Usufructuary to another should terminate at the end of the
usufruct or earlier, except in leases of rural lands.
On Rural Lands = usufruct ends earlier that the lease, the lease continues for the
remainder of the agricultural year.

Claudio, Cortina, Sarines (2A SY 2009-2010)

ART. 570. USUFRUCT constituted on the right to receive RENT OR PERIODICAL PENSION
Payment due shall be considered as the proceeds or fruits of such right, whether in:
1. money or
2. in fruits, or


Accrue daily
Belong to Usufructuary in proportion to the naked owner and the Usufructuary.
Usufructuary is entitled to receive fruits only up to the time the usufruct may last
or expiration of the usufruct.
o Rent
o Pension
o Interest on bonds and stocks

ART. 568. ON LEASE of the Property by USUFRUCTUARY towards another person

At the termination of the usufruct:

Gathered and ungathered fruits belong to the owner
The owner has the obligation to reimburse the Usufructuary for the ordinary
cultivation expenses.
Usufructuary gets the ungathered fruits if such fruits were ungathered due to:
o Malice on the part of the owner
o Through Force Majeur

At the beginning of the usufruct:

Gathered and ungathered fruits need not be reimbursed to the owner for the
expenses, without prejudice to the right of third persons.



Things thatll be useless if Usufructuary


Page 40 of 46

PERFECT Usufruct
Things are used and enjoyed without

Usufruct is terminated:
1. by mortgage placed upon the property prior to the creation of the usufruct.
2. By expropriation of the property in usufruct.

Usufruct is not affected in case of sale or mortgage of the property involved in such by the

Usufructuary is responsible for the abuse that the 3 party involved in the contracts entered
into because such contracts does not affect the relationship of the owner and the



Enjoy the thing
Lease the thing to another
Alienate or encumber his right of usufruct, even by a gratuitous title
-BUT all the contracts he may enter in such cases shall terminate once the usufruct
expires, except in rural lands (which subsists during the agricultural year)

Atty. Robles: Accessory follows the Principal. Since the Usufructuary has the rights to enjoy
the principal things, then s/he can also do so with the accessories.

ART. 571. Natural fruits/accessory.

3. in the interest on bonds or

4. securities payable to bearer
*IF benefits accrues from a participation in any industrial or commercial enterprise or the
date of distribution is not fixed, such benefits shall have the same character.
> the above cases in (*) shall be distributed as civil fruits and applied in the manner
prescribed in the preceding articles.

Atty. Robles

changing the substance or form

Ex. Tract of land.
Usufructuary has a right to the profits
and fruits derived from the property but
the object must be restored at the
termination of the usufruct.

Claudio, Cortina, Sarines (2A SY 2009-2010)



May be the subject of the usufruct
If the Usufructuary wins the case, he would own the fruits, dominion still is with
the naked owner.

ART. 577. In USUFRUCT of TIMBERLANDS, Usufructuary must:

1. Manage the timberland as a prudent administrator
2. Follow the owners habits and custom of the place when cutting trees
3. Cut trees in a manner not to prejudice the preservation of the land.
4. Make necessary thinning to nurse the proper growth of the trees
5. Not cut down trees unless it is to restore or improve the usufruct and in such case
must inform the owner of the necessity to do so.
Proceeds of the timber operations under the proper management of the Usufructuary,
belongs to him.


If due to calamity or extraordinary event, the trees and shrubs disappeared in a
considerable number which makes it impossible to replace them, the Usufructuary
may leave it as it is at the disposal of the owner and demand the owner to remove
and clear the land.


Usufructuary here can make use of the dead trunks, even those uprooted or cut-off
by accident BUT MUST REPLACE them with new plants.

does not consume or expend them or

change their substance.
Transfers ownership of the property to
the Usufructuary (so he can sell,
consume or dispose of it) subject to
restoration of the property or its value to
the owner upon termination of the


The Right to remove the improvements can only be enforced against the owner but
not to third parties, purchaser, in good faith to whom a clean title has been issued.
o (Generally) is not reimbursed by the owner for the improvements made
though the owner also benefits from such.

can make useful improvements or expenses for mere pleasure so long as
is not entitled for indemnity if he performs such improvements
o Should remove the improvements made if the removal does not cause
damage to the property.
Usufructuary cannot be compelled by the owner to remove the improvements if
the Usufructuary does not wish to do so.

Page 41 of 46


Only the owner can alienate the property subject of a usufruct, for he maintains
the JUS DISPONENDI or the power to alienate, encumber, transform, or even
destroy the same.
o Owner can alienate the usufruct PROVIDED IT IS NOT PREJUDICIAL to the
o Usufruct can continue despite the transfer of ownership and such
encumbrance should be annotated in the title of the property.

ART. 580. SETTING OFF THE IMPROVEMENTS (compensation of values and not of rights)
When there was an improvement made and a damage done to the usufruct by the
Usufructuary, the damage can be set off by the improvement.
If damage exceeds the value of the improvement = Usufructuary pays the
If the improvement (if can be removed without damage to the property) is greater
than the damage = the difference must be settled depending on the agreement of
the parties
If the improvement (removed with damage to the property) = excess in value
accrues to the owner of the land.

Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)



1. Where owner waives the right to such inventory and security
2. Where the title constituting the usufruct exempts the Usufructuary from any or
both of these obligations;
3. Where the Usufructuary asks to be relieved from these obligations and no one will
be injured in any way under Art. 585.


ART. 584. EXCEPTION to 583 (2). Obligations in such provision shall not apply to:
1. the donor who reserved the usufruct (no need of security since gratuitous)
2. Parents who are usufructuaries of their childrens property
a. EXCEPTION to the EXCEPTION: when parent/s contract 2 marriage

*upon compliance with Art. 583, only then can the Usufructuary can enjoy and possess the

Owner may demand that:

a. Immovables be placed under administration
b. Movables be sold
c. Public bonds, negotiable instruments be converted to registered
certificates or deposited in a bank or public institution
d. Capital or Cash and proceeds of sale be invested in safe securities
Interests in (a), (b), (c) shall belong to the Usufructuary
Owner retains possession of (a) until Usufructuary gives security or is excused from
so doing, subject to the obligation to deliver the net proceeds thereof to the
Usufructuary after deducting the sums which may be agreed upon or judicially
allowed him for such administration.

Atty. Robles

Usufructuary cannot alienate his right or lease to the property because such is
contrary to his oath that he needs the dwelling or implements and furniture.

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The owner can demand delivery of the borrowed properties or things upon his
giving a security for the payment of the legal interest on their appraised value
when he does not wish that the articles be sold due to the things artistic worth or
sentimental value.


Is a petition granted by the Court when:
o the Usufructuary:

Has not given the security claims by virtue of a promise under


Delivery of the furniture necessary for his use

Requests the he and his family be allowed to live in a house

included in the usufruct.

Requests the usage of implements, tools and other immovable

properties necessary for his work, industry or vocation.

This article grants a POTESTATIVE right to the owner of the property. Therefore the owner
may or may not exercise such right. Argentine code provides that failure to give notice of
inventory/security does not affect the rights of the Usufructuary to enjoy the property and its
fruits but he may still be required to make the inventory.


ART. 583. OBLIGATIONS of the USUFRUCTUARY Prior to the USUFRUCT agreement:

1. After notice to the owner or legitimate rep., MAKE AN INVENTORY which contains:
a. Appraisal of the movables
b. Description of the condition of the immovables
2. GIVE SECURITY stating that he binds himself to fulfill his obligations under the Civil
Code provisions in Usufruct.

*not conditions for the commencement but for the enjoyment of the property. Thus, despite
inability to fulfill the said obligations, usufruct still exists but without right to enjoy the fruits
and possession of the property.



Usufructuary can exercise his rights pertaining to the owner with respect to the
administration and collection of fruits and interests
If the co-ownership ceased due to the division of the property, the usufruct of the
part allotted to the co-owner shall belong to the Usufructuary.


Considered as thought the usufruct is constituted on FUNGIBLE THINGS


Claudio, Cortina, Sarines (2A SY 2009-2010)

If perished, WITHOUT FAULT, Usufructuary shall continue to care and

save the ones still alive.



Extraordinary Repairs, 593-94
Taxes on Capital, 597

If all the animals constituting the usufruct perished WITHOUT FAULT of

the Usufructuary due to a contagious disease or uncommon event, s/he
must deliver to the owner all that was saved from the misfortune.


Ordinary Repairs, 592
Annual Charges& Taxes during
usufruct, 596
Debts during the usufruct, 598
Liabilities in suit concerning

Usufructuary is obliged to replace the young/s which died by natural

causes or by being eaten by beasts.

YOUNG dies



He is liable for damages which the things in usufruct may suffer even through the
fault or negligence of the person who substitutes him.
o This article does not prejudice the right of the original Usufructuary to
indemnify the lessee or the transferee for any damages that the former
had to pay to the owner.

ART. 589. USUFRUCTUARY must exercise the DILIGENCE OF A GOOD FATHER of a family.

ART. 588. EFFECT of GIVING SECURITY IS RETROACTIVE since the time when he should have
begun to receive them.


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ART. 594. OWNER can demand the return of the thing from the Usufructuary to accomplish
the extraordinary repairs.
o If Usufructuary shoulders such, he shall be entitled to indemnity

Indemnity shall be the increase in value of the thing due to the

repair made.
o If owner shoulders such, the owner has a right to demand legal interest in
the amount expended for the time the usufruct lasts.

ART. 593. EXTRAORDINARY REPAIRS: shouldered by the OWNER

Usufructuary must notify the owner when the extraordinary repairs became
urgent. Failure to do so would mean an omission prejudicial to the interest of the
KINDS of Extraordinary repairs:
o Caused by exceptional circumstances (necessary or for preservation)
o Caused by natural use of the thing but not necessary for preservation

ART. 592. ORDINARY REPAIRS shouldered by the Usufructuary

Fair trade of enjoyment of the property and shouldering the ordinary repairs
Requirements/(Definition) to be considered ordinary repairs
o Deterioration or defect arouse from the natural use of the thing
o Repairs are necessary for the preservation of the thing
592 does not include:
o Deteriorations due to time and age contemplated in Art.573
o Destruction or consumption of the thing by use found in Art. 574.
o Repairs made before the Usufruct was constituted

Owner shall bear the ordinary repair

Renunciation of Usufruct by the Usufructuary
o Does not exempt the Usufructuary from liability for damages due to fault
or negligence.
o If the defect existed before the renunciation, and due to the ordinary use
of the thing, Usufructuary may be exempted to make the repairs and
return to the owner the fruits received during the time that the defects
took place.

usufruct, 602

Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)

ART. 599. MATURED CREDITS (forms part of the usufruct) claimed by the Usufructuary
Can be claimed by him if he has given the proper security.
o Security is needed to preserve the integrity if the capital in usufruct.
o Owner or COURT (if owner is in default) authorization is needed to collect
such credits when:

He has been excused from giving security

He has been unable to give it,

He gave an insufficient security

Usufructuary can use the capital he got upon fulfilling the security needed in any
way he deems it.
If he has not given security: he must invest the credit obtained at interest upon
agreement with the owner
o If owner is in default, court authorization

ART. 598. DEBT on the USUFRUCT (usufruct is on an entire lot/property of the owner)
Usufructuary pays the debts as it were present at the time of the usufructs
Usufruct also is liable to make periodical payments regarding such debts of the

ART. 597. TAXES on the CAPITAL: paid by the owner.

If Usufructuary pays such taxes, the owner must reimburse him before the
termination of the usufruct.

ART. 596. ANNUAL CHARGES and TAXES: paid by Usufructuary

Expenses over the fruits are shouldered by the Usufructuary until the usufruct lasts
These charges, for the FIRST and LAST years are to be divided between the usufruct
and the owner in proportion to the periods of possession.


Owner can construct works and improvement on the property so long as such acts
do not diminish the value of the property or are not prejudicial to the Usufructuary.
Usufructuary is not bound to pay interest on the investment because the owner
made such improvements voluntarily.


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2 view: Supreme Court says usufruct is in favor of a natural person thus the usufruct is only
good for the lifetime of the Usufructuary.


On Death of the Usufructuary

1 view: Manresa says the Usufruct subsists even after death of the Usufructuary when there
exists a resolutory condition because the will of the parties should be respected. Heirs in
behalf of the original Usufructuary would take over in the usufruct.

ART. 603. EXTINGUISHMENT of the Usufruct:

1. DEATH of Usufructuary, (unless contrary intentions clearly appears)
2. EXPIRATION of the period the usufruct is constituted
a. OR by FULFILLMENT of any resolutory condition in the usufructs title
4. RENUNCIATION of the Usufructuary voluntary and expressed act of surrendering
or abandoning of the rights of the Usufructuary. (no need of owners consent)
5. TOTAL LOSS of the thing in usufruct
7. PRESCRIPTION (not mean non-use but use of a third person)

ART. 602. Expenses in SUIT: borne by Usufructuary.

Such expenses, costs and liabilities in suits affect the rights of the Usufructuary.

ART. 601. NOTIFICATION to the OWNER Concerning third parties

Usufructuary has his own right of action against intruding 3 parties, nevertheless,
he must notify the owner of such intrusion
He is liable for non-notification, for damages
Any injury to the property would also be an injury to the rights of the owner.

ART. 600. MORTGAGED IMMOVABLE: not a debt paid by Usufructuary

If immovable is attached or sold judicially to pay the existing debt, OWNER must
pay the Usufructuary for whatever loss the latter incurred by reason of such

Atty. Robles


BUILDING and the Usufruct ATTACHED only to the building.

o If building is destroyed, can use also in whatever manner
o Can construct another building and the Usufructuary can:

have a right to occupy the land

make use of the materials

Get interest upon the sum equivalent to the value of the land
and of the materials.

Claudio, Cortina, Sarines (2A SY 2009-2010)

USUFRUCT and the Building ATTACHED to it.

o If the building gets destroyed, Usufructuary can make is of the land and
the materials in whatsoever manner.


EXCEPT: Usufruct is stipulated to exist only during such 3 persons existence.


ART. 606.
GEN.RULE: USUFRUCT expiring before a third person attains a certain age will subsist during
such period and will continue to subsist even if said person dies before the period expires.

ART. 605. USUFRUCT not allowed in favor of:

Town, corporation or association for more than 50 years
If those above are extinguished before the usufructs expiration, the usufruct is
extinguished for those same reasons.

ART. 604. If thing in usufruct is lost in part, the rights shall continue to exists as to the
remaining parts.

PERIOD OF THE USUFRUCT: shall be counted excluding the delay in the enjoyment not
imputable to the fault or negligence of the Usufructuary. Otherwise, the count would be
against the Usufructuary.

3 view: Tolentino says that usufruct subsists when there is a clear stipulation that such
would continue even after the usufructuarys death. Without this stipulation, the usufruct is
necessarily extinguished.


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ART. 611. Usufruct extinguished until the death of the last survivor (when usufruct is
constituted in favor of several usufructuaries living at the time of its constitution)


EXCEPT if the bad use or abuse should cause considerable injury to the owner.
o In such case, the owner may demand the return of the thing and bind
himself to pay annually to the Usufructuary the net proceeds of the same
after deducting the expenses, compensation which would be used for the
If there is sufficient security, bad use may not injure the owner.
COURTS shall determine the existence of the considerable injury. Remedy under
this article will not extinguish the usufruct.


Owner is shall be obliged to either:
1. Replace the property subject of the usufruct with another of the same value or
similar conditions, OR
2. Pay the Usufructuary legal interest as indemnity for the whole period of the
o If (2) is chosen, owner shall give security for the payment of the interest.


NO matter what proportion, if the Usufructuary contributes in the insurance of the
tenement and the the building gets destroyed, Usufructuary continues to enjoy the
new building or gets the interest from the insurance if the owner doesnt want to
rebuild it.
If Usufructuary does not want to contribute to the insurance
o Owner gets all the interests or proceeds from the insurance
o If not proved, shared contribute is presumed and the succeeding effects
will be followed (e.g. Usufructuary enjoys the new building, etc)

Deemed that both contributed but the Usufructuary would

reimburse the owner for the parts of the premiums
corresponding to his shares.

Atty. Robles

Claudio, Cortina, Sarines (2A SY 2009-2010)


Thing in usufruct shall be delivered to the owner BUT the Usufructuary or his heirs
may retain in his possession the thing until he is reimbursed for taxes and
extraordinary expenses


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Atty. Robles