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PROPERTY
Property (Civil law concept)

Art. 414. All things which are or may be the object of appropriation are considered either:
(1) Immovable or real property; or
(2) Movable or personal property.

What is appropriation?
The New Civil Law Code does not define what appropriation is, but it has been considered as equivalent to occupation, which
is the willful apprehension of a corporeal object which has no owner, and with intent to acquire its ownership.

PROPERTY, classification:
a. Immovable or real property; and
b. Movable or personal property

Note: According to some authors, the classification given in Article 414 is not complete in that there should be a third
classification the – “mixed” or the "semi-immovable". This classification refers to movable property like machines or removable
houses or transplantable trees which under certain conditions, may be considered immovable by virtue of their being attached to
an immovable for certain specified purposes.

Importance of the classification:

It does not assume its importance from the fact of mobility or non-mobility but from the fact that different provisions of the
law govern the acquisition, possession, disposition, loss, and registration of immovable and movable.

Examples:
a. Donations
1) real property (like land) = must be in a public instrument, otherwise, the alienation will be null and void even as between
the parties.
2) movable (like a ring valued at say P 5,000.00) = needs only to be in a private instrument. (Art748).

b. Ownership by prescription
1) real property (in bad faith) = 30 years (Art 1137)
2) personal properly (in bad faith) = 8 years (Art 1132).

c. Generally, to affect third persons, transactions involving

1) real property must be recorded in the Registry of Property;
2) personal property = need not be recorded

May parties by agreement treat as personal property that which by classification under the law is real property?
It would seem that under the Civil Code, it is only the LAW which may consider certain real property (like growing crops) as
personal property for the purpose of making a chattel mortgage. (Art 416(2)) Also, for purposes of taxation, a real property may
be considered as personal property.

REMINDERS:
F A building is considered an immovable property.
o Even if the owner of the land is different from the owner of the building constructed on such land, the building does not
lose its immovable character.

F If a chattel mortgage is constituted over a building separately owned by the mortgagor, the same may still be valid and
effective between the contracting parties by reason of estoppel provided no rights of third persons who are in good faith are
impaired.
o However, in case of foreclosure the mortgagor may proceed in accordance with the rules on foreclosure of real estate
mortgage.

F With respect to machinery and equipment used for an industry or works

o General rule: they may not be validly subject to replevin so long as they are intended by the owner for an industry and they
directly meet the needs of the industry -- they are considered as real property. (They are not subject to replevin which is
an action to recover specific personal property.)
o Exception: when the machinery is placed by the lessee in the real estate leased to him by the owner of the real estate.
o Exception to the exception: when the lessee places the machinery on the estate as an agent of the owner-lessor

Immovable Property:

Classes of Immovable:
1.) Immovable by nature = those which cannot be moved from place to place because of their nature such as land (Art 415(1)),
mines, quarries and slag dumps (Art 415(8));
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2.) Immovable by incorporation = those which are essentially movables but are attached to an immovable in such manner as to
become an integral part thereof [Examples: those mentioned in par 1, 2, 3, 4 & 6 of Art 415, except land, buildings, and
roads]
3.) Immovable by destination = those which are essentially movables, but by the purpose for which they have been placed in an
immovable, partake the nature of the latter because of the added utility derived there from (such as those mentioned in pars
4, 6,7 & 9 of Art 415); and
4.) Immovable by analogy or by law = those mentioned in Art 415(10) -- right of usufruct easements, and servitudes.

Article 415. The following are immovable property:

PAR 1: land, buildings, roads, and constructions of all kinds adhered to the soil.

Land is the best example of immovable property.

F It is immovable by its very nature. And even, if land is moved by an earthquake or an extraordinary happening, the land
should still be considered an immovable.
F Even if land is rented, it is still considered as immovable.
F A shovelful of land, however, should be considered personal property since this no longer adheres to the soil.

Buildings of permanent structure are always classified as immovable.

F It is immaterial whether it is built on a rented or owned land.
F The nature of the building as property does not depend on the way the parties deal with it (see: Leung Yee vs. Strong
Machinery Co. 37 Phil 664.]
F Buildings are considered immovable provided they are more or less of a permanent structure, substantially adhering to the
land, and not mere superimpositions (ex. of superimpositions are barong-barong, Quonset fixtures)
F A dismantled building or house and/or the materials of such dismantled house should be regarded as personal properties (see:
Biscerra vs. Tenezz, 11-29-62,1, L-16218).

Constructions of all kinds:

F It is understood that the attachment must be more or less permanent. A wall or a fence is good example of this kind of
immovable by incorporation.
F As long as there is intent to permanently annex the same, it is immaterial whether the materials used are only made of stone.
Railroad tracks or rails come under this category.
F Wooden scaffoldings on which carpenters stand while constructing a house are merely personal property in view of the lack
of "adherence" to the soil or the intent to permanently annex the same to the soil.

Leung Yee v. Strong Machinery (37 P 644)

F: Compania Agricola Filipina purchased rice cleaning machines from Strong Machinery and executed a CM on the machines
and building. Agricola failed to pay, so Strong Machinery foreclosed and recorded it in the Chattel Mortgage Registry. Leung
Yee, another creditor of Agricola, purchased the same bldg and recorded it in Registry. Leung knew of Strong’s claim though.
H: bldg is real prop BUT Strong has better right since Leung is a buyer in bad faith
The building is a real property, therefore, its sale as annotated in the Chattel Mortgage Registry cannot be given the legal
effect of registration in the Registry of Real Property. The mere fact that the parties decided to deal with the building as personal
property does not change its character as real property. Thus, neither the original registry in the chattel mortgage registry, nor the
annotation in said registry of the sale of the mortgaged property had any effect on the building. (void as to 3 rd persons)

Bicerra v. Teneza (L-16218; 11/29/1962)

F: Teneza forcibly demolished Bicerra’s house – worth P200. A case is filed before the CFI
H: CFI has no jurisdiction because no real property is being sued upon, the house having ceased to exist, and the amount of
damages sought does not exceed the jurisdictional amount in inferior courts.
While it is true that the complaint also seeks that the plaintiffs be declared the owners of the dismantled house or the materials,
such does not in any way constitute the relief itself, but is only incidental to the real cause of action – which concerns the recovery
of damages.

PAR 2: Trees, plants and growing crops, while they are attached to the land form an integral part of an immovable.

Trees and plants

F no matter what their size may be are considered real property
o by nature, if they are the spontaneous products of the soil, and
o by incorporation, if they were planted through labor.
F The moment they are detached or uprooted from the land, they become personal property,
o except in the case of uprooted timber, if the land is timberland because although no longer attached, the timber still forms an
“integral part” of the timberland.

Ungathered fruits
F when the land is being leased by another, and the fruits belong to the tenant, the fruits may be considered as immovable
because no exception or qualification is made under the Civil Code.
F However, when the fruits although ungathered are sold, as when the entire harvest is sold before being actually gathered, it is
considered as a sale of movables.
F In the case of Sibal vs Valdez, 50 Phil 512, the Supreme Court held that for purposes of attachment and execution, and for
purposes of the Chattel Mortgage Law, ungathered products have the nature of personal property. (mobilized by
anticipation -- when the crops are sold, it is understood that they are to be gathered)
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PAR 3: Everything attached to an immovable in a fixed manner, in such a way that it cannot be separated there from without
breaking the material or deterioration of the object. (called Res Vinta in Roman Law)

F Under this paragraph, for the incorporated thing to be considered real property, the injury or breakage or deterioration in case
of separation, must be substantial. Examples:
o A fixed fire escape stairway firmly embedded on the walls of the house;
o an aqueduct;
o a sewer
o a well
F If the thing incorporated is temporarily removed with the intention to replace the same, the thing is considered as personal
property because the incorporation had ceased.
F The material fact of incorporation or separation is what determines the condition of the tenement; it recovers its conditions as
movables, irrespective of the intention of the owner.

Par 3 Par 4
Cannot be separated Can be separated from
from immovable immovable without
without breaking or breaking or
deterioration deterioration
Need not be placed by Must be placed by the
the owner owner, or his agent,
express or implied
Real property by Real property by
incorporation incorporation and
destination

Board of Assessments vs. MERALCO

MERALCO was assessed real property tax on its electric poles. The theory was that the same are real property being adhered
to the soil.
The SC said that the electric poles are not real property since they can be removed. Such poles were not attached in fixed
manner.

PAR 4: Statues, reliefs, paintings or other objects for use or ornamentation, placed in building or on land by the owner of the
immovable in such a manner that it reveals the intention to attach them permanently to the tenements.

F These are immovable both by incorporation and by destination. Examples:

o A fixed statue in the garden of the house;
o a permanent painting on the ceiling;
o a picture embedded in the concrete wall of a house;
o a rug or carpet fastened to the floor (wall-to-wall carpeting).

Notes:
1. The objects must be placed by the owner of the immovable (buildings or lands) and not necessarily by the owner of the
object.
2. The owner of the building or land may act through his agent or if insane, through his duly appointed guardian.
3. If placed by a mere tenant, the objects must remain chattels or personality (See Davao Sawmill v. Castillo, 61P709).
4. Where the owner of a tenement entered into a contract with a lessee, stipulating that the lessee shall place certain objects in
the property leased, and that such objects shall remain with the property upon the termination of the lease, without any
obligation on the part of the owner to reimburse the lessee, it has been held that the tenant acts as an agent of the owner in
giving by contract a permanent destination to them (See: Valdez vs. Central Altagracia, 255 U.S. 58).

Davao Sawmill v. Castillo (61 P 709)

F: Dvo. Sawmill placed machinery on the land of another. Contract stipulated: “machinery was not included in the improvements
which would pass to the lessor on the expiration of the lease.” Sawmill executed CM over the machinery
H: machinery are personal property
Machinery which is movable in nature only becomes immobilized when placed in a plant by the owner of the property or the
plant, but not so when placed by a tenant, a usufructuary or any person having only temporary right unless such person acted as
the agent of the owner. The owner of the machinery is not presumed to have intended to deprive himself of the property by an act
of immobilization to become the property of another.

PAR 5: machinery, receptacles, instruments, or implements intended by the owner of the tenement for an industry or works which
may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works

These are immovable by purpose or destination

Requisites:
1. The placing must be made by the owner of the tenement, his agent, or his duly authorized legal representative;
2. The industry or works must be carried on in the building or on the land;
3. The machines, etc. must tend directly to meet the needs of said industry, or works (Adaptability)
4. The machines must be essential and principal elements in the industry, and not merely incidental.
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F A transportation business is not carried on in a building or in the compound (See: Mindanao Bus Co. vs. City Assessor, 9-29-
62)
F Cash registers, typewriters, etc. usually found and used in hotels, restaurants, theaters, etc. are merely incidentals, and should
not be considered immobilized by destination for these businesses can continue or carry on their functions without these
equipment.
 The same applies to the repair or service shop of the transportation business because the vehicles may be repaired or
serviced in another shop belonging to another.
F Machineries of breweries used in the manufacture of liquor and soft drinks, though movable by nature, are immobilized
because they are essential to said industries; but the delivery trucks and adding machines which they usually own and use
and are found within their industrial compounds are merely incidentals and retain their movable nature
F Machinery which is movable in its nature only becomes immobilized when placed in a plant by the owner of the property or
plant but not when so placed by a tenant, usufructuary, or any person having only a temporary right of a tenant, unless such
person acted as the agent of the owner.

Machines placed in a sugar central are considered immovable, even if the central has already been the subject of mortgage.

BH Berkenkotter vs. Cu Unjieng (61 P 663)

F: Mabaclat Sugar has an existing mortgage over its building and improvements in favor of Cu Unjieng. Mabaclat bought new
machineries. Mabaclat failed to pay, so Cu Unjieng lays claim on the mortgage – including the new machineries
H: new machineries are considered permanent improvements thus part of the mortgage
Machinery intended by the owner of any building or land for the use in connection with any industry or trade being carried on
therein and which are expressly adapted to meet the requirements of such trade, are considered as real property.
If the installation of the machinery and equipment in question in the central converted them into real property by reason of
their purpose, it cannot be said that their incorporation therewith was not permanent in character because, as essential and
principal elements of a sugar central, without them the sugar central would be unable to function or carry on the industrial
purpose for which it was established. The new machinery must, therefore, be considered as subject to the real estate mortgage in
favor of the defendant.

Note: Would it have made a difference if there was no stipulation that the real estate mortgage would cover future
improvements? No, the improvements would be covered automatically by law as the same are immobilized. Of course, the
parties are free to stipulate what may be excluded from the mortgage.

Tsai v. CA (120098; 10/2/2001)

F: After the real and chattel mortgage was constituted, Evertex bought new machineries. They failed to pay so PBCom foreclosed
on the mortgage, including the new machineries. They contended that since the machineries were bolted, cemented and heavy,
they are considered real property. The mortgage did not contain any provision that after-acquired properties are included
H: new machineries should not be included in the foreclosure since they are considered as movable and not covered by CM
Petitioners contend that the nature of the disputed machineries, i.e., that they were heavy, bolted, or cemented on the real
property mortgaged by Evertex to PBCom, make them ipso facto immovable under Art 415(3) and 5 of NCC. This assertion,
however, does not settle the issue. Mere nuts and bolts do not foreclose the controversy. We have to look at the parties’ intent.
While it is true that the controverted properties appear to be immobile, a perusal of the contract of Real and Chattel Mortgage
executed by the parties herein gives us a contrary indication. Evertex and PBCom intended to treat the machinery and equipment
as chattels.
Assuming arguendo that the properties in question are immovable by nature, nothing detracts the parties from treating it as
chattels to secure an obligation under the principle of estoppel.

Effect of separation:
A If the machines are still in the building, but no longer used in the industry conducted therein, the machines revert to the
condition of a chattel.
A The moment they are separated from the purpose of the industry (not necessarily from the immovable), they recover their
condition as movables (Ago vs. CA 6 S 530)
A On the other hand, if still needed for the industry, but separated from the tenement temporarily, the property continues to be
an immovable, inasmuch as par 5 refers, not to real property by incorporation, but to real property by destination or
purpose.

GR: Machinery attached to land or a tenement is considered immovable when the machinery is intended by the owner of the
tenement for an industry or works w/c may be carried on in a building or on a piece of land, and w/c tend directly to meet
the needs of the said industry or works

Exception: When the machinery is placed on the land or tenant by a mere tenant, it is considered as movable property

Exception to the exception: When:

a. the tenant had promised to leave the machinery on the tenement or the land even after the lease expires
b. the tenant acted only as an agent of the owner of the land

Ago v. Ca (L-17898, 10/31/1962)

F: Sheriff sold machineries following the rules on sale of personal prop
H: sale is void; procedure for sale of real property should have been followed
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By the installation of the sawmill machineries in the building of the Golden Pacific Sawmill, Inc., for use in the sawing of logs
carried on in said building, the same became a necessary and permanent part of the building or real estate on which the same was
constructed, converting the said machineries and equipments into real estate within the meaning of Article 415(5).
Considering that the machineries and equipments in question valued at more than P15,000.00 appear to have been sold without
the necessary advertisement of sale by publication in a newspaper, as required in Sec. 16 of Rule 39 of the Rules of Court, the sale
made by the sheriff must be declared null and void.

PAR 6: Animal houses, pigeon-houses, beehives, fishponds or breeding places of similar nature, in case their owner has placed
them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the
animals in these places are included.

A The houses referred to here may already be deemed included in par. 1 when speaking of "constructions of all kinds adhered to
the soil."
A Even if the animals are temporarily outside, they may still be considered as real property as long as the intent to return is
present, as in case of a homing pigeon.
A But from the viewpoint of criminal law, they are considered as personal property and may properly be the objects of theft or
robbery.
A When the animals inside the permanent animal houses are alienated onerously or gratuitously, it is believed that the
transaction is an alienation of personal property, unless the building or the tenement itself is also alienated. This is because
in said alienation, the animal structures must of necessity be detached from the immovable. Hence, an ordinary inter vivos
donation of a pigeon-house need not be in a public instrument.

PAR 7: Fertilizers actually used on a piece of land.

A Fertilizers still in the barn and even those already on the ground but wrapped inside some newspapers or any other covering
are still to be considered personal property, for they have not yet been "actually" used or spread over the land.
A The fertilizers should be on the land where they are to be utilized, because it is only then, that the intention of the owner to
use them on the tenement is beyond doubt. Hence, fertilizers kept in the farmhouse are not immovable.

PAR 8: Mines, quarries, and slag dumps while the matter thereof forms part of the bed, and waters,either running or stagnant.

A Mines, including the minerals still attached thereto, are real properties, but when the minerals have been extracted, the latter
become chattels (40 CJ 903)
A Slag dump is the dirt and soil taken from a mine and piled upon the surface of the ground. Inside the "dump" can be found the
minerals.
A The "waters" referred to are those still attached to or running through the soil or ground. But the "water" itself as
distinguished from "waters" is clearly personal property.
A On the other hand, canals, rivers, lakes, and such part of the sea as may be the object of appropriation, are classified as real
property.

PAR 9: Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river,
or coast.

A A floating house tied to a shore or bank post and used as a residence is considered real property, considering that the "waters"
on which it floats, are considered immovable.
A In a way, we may say that the classification of the accessory (the floating house) follows the classification of the principal
(the waters). However, if the floating house makes it a point to travel from place to place, it assumes the category of a
vessel.
A By express provision of Article 585 of the Code of Commerce, vessels are movable property, but they partake, to a certain
extent, of the nature and conditions of the real property, on account of their value and importance in the world of
commerce. (Rubiso vs. Rivera, 37 Phil 72)
A Vessels are considered personal property. As a matter of fact, they are indeed very movable. (PRC vs. Jarque,61 Phil 229).
A Because they are personal property, they may be the subject of the chattel mortgage. (McMicking vs. Espanol-Filipino, 13
Phil 429; Arroyo vs. Yu de Sane, 44 Phil7).

PRC v. Jarque (3/25/1935)

F: PRC executed a CM over their 3 vessels – 2 of them do not have an affidavit of good faith while 1 was not registered on the
port
H: Under the civil law, vessels are considered as personal property. Under the common law, vessels are personal property
although occasionally referred to as a peculiar kind of personal property.
Since personal property includes vessels, they are subject to mortgage agreement to the provisions of the chattel mortgage
law. The only difference between a chattel mortgage of a vessel and a chattel mortgage of other personalty is that it is not now
necessary for a chattel mortgage of a vessel to be noted in the Registry of Deeds but it is essential that a record of documents
affecting the title to a vessel be entered in the record of the Collector of Customs at the port of entry.
Sec 5 of chattel mortgage law includes the requirement of an affidavit of good faith appended to the mortgage and recorded
therewith. Absence of the affidavit vitiates a mortgage against creditors and subsequent encumbrances.
The mortgage is lacking and unenforceable against third persons.

PAR 10: Contracts for public works, and servitudes and other real rights over immovable property (real prop by analogy)

A The properties referred to in this paragraph are not material things but rights, which are necessarily intangible.
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A The piece of paper on which the contract for the public works has been written is necessarily personal property, but the
contract itself or the right of the contract is real property.
A A servitude or easement is an encumbrance imposed on an immovable for the benefit of another owner, or for the benefit of a
person, group of person, or a community, like the easement of right of way.
A Other real rights over real property include
o real estate mortgage,
o antichresis,
o possessory retention,
o usufruct,
o leases of real property, if registered; or even if not registered, if their duration is for more than a year.
A Usufruct of personal property or a lease of personal property should be considered personal property.
A In the case of Presbitero vs. Fernandez (March 30, 1958), the Supreme Court held that sugar quotas are real property, for they
are by law considered "real rights over immovable property" just like servitudes and easements.

u Real rights are those rights which are enforceable against the whole world. (i.e. ownership, possession in concept of holder,
servitude, mortgage).
u For a real right to be considered real property, the real right must be over an immovable property. For example, the real right
of ownership of the land is considered real property while the real right of ownership over a bag is considered personal
property.

Movable Property

Article 416. The following things are deemed to be personal property:

1. Those movables susceptible of appropriation which are not included in the preceding article;

Examples: cell phones; money; ring; cars

2. Real property which by any special provision of law is considered as personalty;

Examples:
u Growing crops for the purpose of the Chattel Mortgage Law (Sibal vs. Valdez, 50 Phil. 512);
u machinery placed on a tenement by a tenant, who did not act as the agent of the tenement owner (Davao Sawmill vs. Castillo,
61 Phil 709);

3. Forces of nature which are brought under control by science; and

Examples: Electricity, gas, light, nitrogen (US vs. Carlos, 21 Phil. 543)

4. In general, all things which can be transported from place to place without impairment of the real property to which they are
fixed.

Examples: Machinery not attached to land nor needed for the carrying on of an industry conducted therein; portable radio;
diploma hanging on the wall

Sibal v. Valdez (50 P 512)

F: Sibal wants to redeem his mortgaged sugar can from Valdez who refused saying the sugar cane is personal property thus
cannot be redeemed
H: sugar cane is personal prop
Although considered as “growing fruits” and therefore ordinarily real property under Art. 415(2), the sugar cane here must
be regarded as personal property for the purposes of
1. the Chattel Mortgage Law
2. attachment

US v. Carlos (21 P543)

F: Carlos used jumper to divert flow of electricity. He was accused of theft by Meralco
H: he is guilty of theft
While electric current is not a fluid, still its manifestations and effects like those of gas may be seen and felt. The true test of
what may be stolen is not whether it is corporeal or incorporeal, but whether, being possessed of value, a person other than the
owner, may appropriate the same. Electricity, like gas, is a valuable merchandise, and may thus be stolen.

TEST TO DETERMINE WHETHER PROPERTY IS MOVABLE OR IMMOVABLE:

1. test by description
a. If the property is capable of being carried from place to place
b. If such change in location can be made without injuring the real property to which it may in the meantime be attached
2. test by exclusion
a. It the object is not one of those enumerated or included in Article 415, then the inevitable conclusion is that the property is
a personal property.

Note: Test by exclusion is superior to test by description.

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Article 417. The following are also considered as personal property

1. Obligations and actions which have for their object movables or demandable sums;

# The term obligations really refers to “credits" and also includes bonds, which are technically obligations of the entity issuing
them.
# Action - if somebody steals my car, my right to bring action to recover the automobile is personal property by itself.
# A promissory note is a personal property; the right to collect it is also a personal property.

2. Shares of stock of agricultural, commercial and industrial entities although they may have real estate

# Although the provisions of par. 2 seem to refer only to corporations by the words "shares of stocks", and only to those
engaged in agriculture, commerce, and industry, nevertheless, all juridical persons must be deemed included.
# A share of stock in a gold mining corporation is also personal property; but the gold mine itself, as well as any land of the
corporation, is regarded as real property by the law. The certificate itself evidencing ownership of the share, as well as the
share itself, is regarded as personal property. Being personal, it may be the object of a chattel mortgage (Chua Guan vs.
Samahang Magsasaka, Inc. 62 Phil 472)
# A half interest in drugstore business is personal property capable of being the subject of a chattel mortgage (Strochecher vs.
Ramirez, 44 Phil 933). However, a half-interest in a drugstore, considered as a building, (not a bussiness) is a real right in
real property and is therefore by itself a real property.

CLASSIFICATION OF MOVABLES:

Art. 418. Movable property is either consumable or non-consumable. To the 1st class belongs those movables w/c cannot be used
in a manner appropriate to their nature w/o being consumed, to the 2 nd class belong all others.

As to nature:
1. Consumables - Those whose use according to their nature destroys the substance of the thing or causes their loss to the
owner. Food is an example of a consumable thing.
2. Non-consumables - any other kind of movable property.

As to the intention of the parties:

1. Fungibles - Those replaceable by an equal quality and quantity, either by the nature of things, or by common agreement.
2. Non-fungibles - Those irreplaceable because the identical objects must be returned

Note: 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.

PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS

Article 419. Property is either of public dominion or of private ownership.

The State may own properties both in its:

1. public capacity (public dominion) = ownership by the state in its public capacity or in the exercise of governmental functions
2. private capacity (patrimonial) = ownership by the state in its private capacity or in the course of its proprietary functions.
a. This is the property over which the State has the same rights and for which it may dispose, to the same extent as private
individuals in relation to their property, subject only to the administrative laws and regulations on the procedure of
exercising such rights.
b. They exist for the State to attain its economic ends, as a means for its subsistence, and the preservation of its natural
organism

Article 420. The following things are property of public dominion:

1. Those intended for public use such as roads, canals, rivers torrents, ports, and bridges constructed by the state, banks, shores,
roadsteads, and others of similar character;
2. Those which belong to the state, without being for public use and are intended for some public service or
3. for the development of the national wealth.

CHARACTERISTICS:
1. They may be real or personal
2. They cannot be levied or attached;
3. They cannot be registered under the Land Registration Law;
4. They cannot be acquired by prescription;
5. They are outside the commerce of men;
6. They cannot be burdened by any voluntary easement.

Property for PUBLIC USE = can be used by everybody, even by strangers or aliens in accordance with its nature; but nobody can
exercise over it the rights of a private owner
Thus, no private person can have a property right in the use of a street for his private business, nor can he acquire over it such
a right to possession as would require the exercise of possessory actions
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Public Service = not for the general use but for some state function (i.e., government hospitals, Malcolm Hall)

Laurel vs. Garcia, 187 SCRA 797

F: Pres Aguino issued an EO selling Roponggi lot since it was not used by the embassy anymore
H: lot was not validly withdrawn from the public domain – there must be a law authorizing such
There can be no doubt that the Roponggi property is of public dominion unless it is convincingly shown that the property has
become patrimonial. It is outside the commerce of man and cannot be alienated.
Roponggi property is correctly classified under Art. 420(2) as property belonging to the State and intended for some public
service. The fact that the Roponggi property has not been used for a long time for actual embassy service does not automatically
convert it to a patrimonial property. Any such conversion happens only if the property withdrawn from public use. It remains a
“public domain” until there is a formal declaration or the part of the government to withdraw it from being such.
An abandonment of the intention to use the Roponggi property for public service and to make it patrimonial property under Art.
422 must be definite. Abandonment cannot be inferred from the non-use alone specifically if the non-use was attributable not to
the government’s own deliberate and indubitable will but to a lack of financial support to repair and improve the property.
Abandonment must be certain and positive act based on correct legal premise.
The mere transfer of the Philippine Embass is not relinquishment of the Roponggi property's original purpose.

REPUBLIC vs. GONZALES (199 SCRA 788)

F: Gonzales leased government’s land. Now, gov’t wants to terminate the leased to construct a parking lot. Gonzales contended
that setting aside of the lots for parking purposes does not redound to the benefit of the public -- only those certain privileged
individuals, i.e., those who have cars, can avail of the parking facility without any advantage accruing to the general public
H: use it still public since it not the actual use which is the basis but the opportunity to use
The conception urged by appellants to restrict property reserved for public use to include only property susceptible of being
used by a generally unlimited number of people is flawed and obsolete, since the number of the users is not the yardstick in
determining whether property is properly reserved for public use or benefit. To constitute public use, the public in general, should
have equal or common rights to use the land or facility involved on the same terms however limited in the number of people who
can actually avail themselves of it at a given time. There is nothing in the law which excludes non-car owners from using a
widened street or a parking area should they in fact happen to be driving cars, the opportunity to avail of the use thereof remains
open for the public in general.

Are rivers whether navigable or not, properties of public dominion?

It would seem that Article 420 makes no distinction. However, jurisprudence say that only navigable rivers are part of public
domain:
a. In the case of Palanca v. Commonwealth 40 OG 148, the Supreme Court said: "The river Viray and the estero Sapang Sedoria,
being navigable, useful for commerce, for navigation, and fishing, they have the character of public domain."
b. In the case of Taleon vs. Secretary of Public Works, L-24281, May 16, 1967, it was held that if a river is capable in its natural
state of being used for commerce, it is navigable in fact, and therefore, becomes a public river;
c. In the case of Martinez v. Court of Appeals, 56 SCRA 647, it was held that navigable rivers are outside the commerce of man
and, therefore, cannot be registered under the Land Registration Law. If converted into fishponds, the latter can be
demolished notwithstanding the Title, for said Title cannot convert the streams into private ones.

Mun of Cavite v. Rojas (30 P 602)

F: The Municipal Council of Cavite in 1907 withdrew and excluded from public use a part of its plaza in order to lease the same
for the benefit of defendant Rojas. Was the lease valid?
H: The lease is null and void, because streets and plazas are outside the commerce of man, since they are properties for public
use. In creating the lease, the municipality exceeded its authority because it did something it was not empowered to do.

City of Manila v. Garcia (L-26053; 2/21/1967)

F: Mayor gave lease contracts to squatter of public land – requiring them to pay nominal rent. The city now wants to used the
land to expand a school
H: The squatters may be ejected for they never really became tenants.
The property being a public one, the Manila mayors did not have the authority to give permits, written or oral, to the squatters.
The permits granted are therefore considered null and void.

Art. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property.

Patrimonial property may be acquired by prescription by private individuals or corporations

Article 422. Property of public dominion, when no longer intended for public, shall form part of the patrimonial property of the
state.

When change takes effect:

B Property of public dominion ceases to be such and becomes private property of the Suite only upon declaration by the
government, through the legislative or executive departments, to the effect that it is no longer needed for public use or
public service.
B If the property has been intended for such use or service and the government has not devoted it to other uses, or adopted any
measure which amounted to a withdrawal thereof from public use or service, the same remains property for public use or
service (Capitulo vs. Aquino, 53 OG 1477)

Who shall declare?

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B In the case of Faustino vs. Dir. of Lands, L-12958, May 30, 1960, the Supreme Court, citing Natividad vs. Dir. of Lands, CA
37 OG 2905 said that only the executive and possibly the legislative departments have the authority and power to make the
declaration that any land so gained by the sea is not necessary for purposes of public utility, or for the establishment of
special industries.
B If no such declaration has been made by the said departments, the lot in question forms part of the public domain.
Consequently, until there is made a formal declaration on the part of the government through the executive department or
the legislative, the parcel in question continues to be part of the public domain and cannot be subject to acquisitive
prescription

COACO vs. Bercilles, 66 S 481

F: Cebu Oxygen bought an abandoned road with the consent of the council and mayor. Court refused the land’s registration
saying it is part of public domain thus outside the commerce of man.
H: council can withdraw portion of the street from public use; property was converted to patrimonial property
Where a portion of the city street is withdrawn from public use by the city council, which under the city charter is empowered
to close any city road. Street, or alley, boulevard, avenue, park or square, the property thus withdrawn from public service become
patrimonial property and be used or conveyed for any purpose for which any real property belonging to the city may be lawfully
used or conveyed.
Under Art. 422 of the CC, "property of public dominion, when no longer intended for public service, shall form part of the
patrimonial property of the State.

International Hardwood v. Univ. of the Philippines, 8/13/1991

F: Congress established a central experiment station for UP within the area covered by timber license of IH. IH contends that UP
cannot supervise the forest
H: UP can supervise since the land has been withdrawn from public domain
When it ceded and transferred the property to UP, RP completely removed it from the public domain and, more specifically,
in respect to the areas covered by the timber license of IH, removed and segregated it from a public forest; it divested itself of its
rights and title thereto and relinquished and conveyed the same to the UP; and made the latter the absolute owner thereof, subject
only to the existing concession.
Insofar as the RP is concerned, all its rights as grantor of the license were effectively assigned, ceded and conveyed to UP as
a consequence of the above transfer of full ownership.
Having been effectively segregated and removed from the public domain or from a public forest and, in effect, converted
into a registered private woodland, the authority and jurisdiction of the Bureau of Forestry over it were likewise terminated.

Art. 423. The property of provinces, cities and municipalities is divided into property for public use and patrimonial property.

Art. 424. Property for public use, in the provinces, cities and municipalities consist of the provincial roads, city streets, and
municipal streets, the squares, fountains, public waters, promenades and public works for public service paid for by said
provinces, cities or municipalities.
All other property possessed by any of them is patrimonial and shall be governed by this Code, w/o prejudice to the
provisions of special laws.

Properties of LGU’s may also be classified into the following:

1. those acquired w/ their own funds (in their private or corporate capacity) – here the LGU has ownership and control
2. those not acquired w/ their own funds
a. these are subject to the control and supervision of the state
b. are held by the LGU in trust for the state for the benefits of the inhabitants

Rules w/ Respect to Properties for Public Use

1. They may not be leased to private individuals
2. They cannot be attached or levied upon

Art. 425. Property of private ownership, besides the patrimonial property of the State and LGU’s, consist of all property
belonging to private persons, either collectively or individually.

Art 426. Whenever by provision of the law, or an individual declaration, the expression “immovable things or property,” or
movable things or property” is used, it shall be deemed to include, respectively, the things enumerated in Chapter 1 and 2.
Whenever the word “muebles” or “furniture,” is used alone, it shall not be deemed to include money, credits, commercial
securities, stocks, and bonds, jewelry, scientific or artistic collections, books, medals, arms, clothing, horses, or carriages and their
accessories, grains, liquids and merchandise, or other thins which do not have as their principal object the furnishing or
ornamenting of a building, except where from the context of the law, or the individual declaration, the contrary clearly appears.

OWNERSHIP IN GENERAL:

Art 427: Ownership may be exercised over things or rights. A person has the right to control a thing particularly in his possession,
enjoyment, disposition, and recovery, subject to no restriction except those imposed by the law.

Definition:
Ownership is the independent and general right of a person to:
a. control a thing particularly in his possession
b. enjoy
c. dispose
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d. recover
subject to no restrictions except those imposed by law

Kinds of Ownership
1. Full – includes all the rights of an owner
2. Naked – ownership where the right to use the fruits has been denied
a. Naked + usufruct = full
b. Usufruct = full – naked
c. Naked = full – usufruct
3. Sole – where the ownership is vested in only one person
4. Co-ownership – when it is vested in 2 or more owners

Art. 428. The owner has the right to enjoy and dispose of a thing w/o other limitations than those established by law.
The owner also has the right of action against the holder and possessor of the thing in order to recover it.

(impt) LIMITATIONS ON OWNERSHIP

1. imposed by law = easement of right of way;
2. imposed by state = police power; power of taxation, power of eminent domain;
3. imposed by owner = in cases of lease, the owner cannot in the meantime physically occupy the property, (also pledges);
4. imposed by grantor = the donor may prohibit the donee from partitioning the property for a period not exceeding 20 years;

SELF-HELP doctrine:

Art. 429. The owner of lawful possessor of a thing has the right to exclude any person from the enjoyment and disposal thereof.
For this purpose, he may use force as may be reasonably necessary to repel or prevent an actual or threatened unlawful physical
invasion or usurpation of his property.

Taken from Article 227 of the German Civil Code which provides:
An act impelled by legitimate necessity shall not be unlawful. Legitimate necessity consists in the defense indispensable to
repel, personally or through another, an actual or unjust situation.

Principle of Self-Help:
B It is lawful to repel force by means of force. It implies that the state of things to be defended enjoys juridical protection.
B It is sort of self-defense, where the use of such necessary force to protect proprietary or possessory rights constitutes a
justifying circumstance under the Penal Code;

The actual invasion of properly may be:

a. mere disturbance of possession: force may be used against it at any time as long as it continues, even beyond the prescriptive
period for an action of forcible entry. Thus if Pedro opens a ditch in Juan's land, the latter may close it or cover it by force
at any time

b. real dispossession: force, to regain possession can only be used immediately after the dispossession. Thus, if Juan without
Pedro’s permission picks up a book belonging to the latter and runs off with it, Pedro can pursue Juan and recover the book
by force.

Nature of the aggression:

B The aggression must be illicit or unlawful.
o The right to self-help is not available against the exercise of right by another, such as when the latter executes an extra-
judicial abatement of nuisance.
o Neither can it be used against the lawful exercise of the functions of a public official, such as a sheriff attaching property.
B The act, however, need not be illicit from the subjective point of view.
o It is immaterial that the aggression is executed because of error of fact or law;
o the existence of a danger of violation of law and right is sufficient, for the possessor is not in a position to wait for the
error of the aggressor, he has to make a quick decision.

Note: There is no obligation to indemnify for the damage caused by the defense against unlawful aggression or against dangerous
objects.

1. In the case of People vs. Polinar, attack against one’s property must be coupled w/ an attack against the person for it to be
justified
2. BUT in recent cases such as in People vs. Narvaez, the SC ruled that there is no necessity of an attack against one’s person to
justify his acts of defending his property
3. This is in line w/ the Doctrine of Self-Help and under Art. 429 – force may be used even w/o threatened bodily danger –
provided that defense and NOT vengeance, is involved

Art. 430. Every owner may enclose or fence his land or tenement by means of walls, ditches, live or dead hedges, or by any other
means w/o detriment to servitudes constituted thereon.

Art. 431. The owner of a thing cannot make use thereof in such manner as to injure the rights of a 3rd person.

ACTS IN A STATE OF NECESSITY:

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Article 432. The owner of a thing has no right to prohibit the interference of another with the same, if the interference is necessary
to avert an imminent danger and the threatened damage, compared to the damage arising to the owner from the interference, is
much greater. The owner may demand from the person benefited indemnity for the damage to him.

A This article, following the same principle of self-help contained in the second part of Article 429, allows the use of defensive
force to preserve an existing situation, as against an external event which the passive subject is entitled to repel as much as
an unlawful aggression by another.
A Superior to the Doctrine of Self-Held
A Examples of danger contemplated by this article are
o the attack of animals,
o the spread of fire,
o the threat of flood, etc.
A The attacking animal, belonging to another may be killed by the victim, a house in the path of a fire may be demolished; and
a dike may be destroyed at one point to prevent a flood over other places.
A The law permits the injury or destruction of things belonging to another provided this is necessary to avert a greater danger.

Requisites:
1. Existence of an evil sought to be avoided;
2. The injury feared is greater than that done to avoid it;
3. That there be no other practical and less harmful means of preventing it;
4. The means employed is necessary and indispensable to avert danger

Civil Liability:
1. Art 429 = no civil liability
2. Art 432 = the person/s benefited are civilly liable

Effect of mistake
A The right to act in a state of necessity depends upon the objective existence of the danger with the requisites provided by law.
A If through error, one believed himself to be in a state of necessity, or used means in excess of the requirements, his acts
would be illicit and the owner of the property may use against him the defensive force authorized in Article 429.

Effect of negligence
A The law does not require that the person acting in a state of necessity be free from negligence in the creation of such
situation.
A Thus, if a person picks up an unknown object in a drug store and eats it, thinking it to be candy, and it turns out to be poison,
he can lawfully drink any antidote he may find in the store, even without the consent of the owner

Basis of liability
The obligation to indemnity does not depend upon imputability. The basis of the liability is the benefit derived.

Conflict of rights
The right of self-help under Article 420 is not available against an act in a state of necessity.

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

Art. 434. In an action to recover, the property must be identified, and the plaintiff must rely on the strength of his title and not on
the weakness of the defendant’s title.

Art. 435. No person shall be deprived of his property except by competent authority and for public use and always upon payment
of just compensation.
Should this requirement be not first complied w/, the courts shall protect and, in the proper case, restore the owner in his
possession.

Just compensation
A The fair and full equivalent for the loss sustained (Mla. Railroad vs. Velasquez 32 Phil 286)
A The market value of the condemned property plus consequential damages less consequential benefits (Mla. Railroad vs.
Fabie, 17 Phil. 208)
A Incidental or consequential benfits may be set off only against the consequential damages, and not against the basic value of
the property taken
A The determination of just compensation in eminent domain cases is a JUDICIAL FUNCTION.
A Value determined at the time of the TAKING or at the time of the FILING of the cases, whichever comes first.

EPZA vs. Dulay, 149 SCRA 305

F: PD 1533 imposes a maximum amount for compensation for expropriated property
H: PD is invalid
Just compensation means the equivalent for the value of the property at the time of the taking. Anything beyond that is more
and anything short of that is less than just compensation. It means a fair and full equivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain would accrue to the expropriating entity. The method of ascertaining just
Page 12 of 82

compensation under the decrees constitutes impermissible encroachment or judicial prerogatives. It tends to render the Court
inutile in a matter which under the Constitution is reserved to it for final determination.

Art. 436. When any property is condemned or seized by competent authority in the interest of health, safety or security, the
owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified. (police
power)

Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct thereon any
works or make any plantations and excavations which he may deem proper, without detriment to servitudes and subject to special
laws and ordinances. He cannot complain of the reasonable requirements of aerial navigation.

Art. 438. Hidden treasure belongs to the owner of the land, building, or other property on which it is found.
Nevertheless, when the discovery is made on the property of another, or of the State or any of its subdivisions, and by chance,
one-half thereof shall be allowed to the finder. If the finder is a trespasser, he shall not be entitled to any share of the treasure.
If the things found be of interest to science of the arts, the State may acquire them at their just price, which shall be divided in
conformity with the rule stated.

Art. 439. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or other precious
objects, the lawful ownership of which does not appear.

Discovery is by chance = means “by good luck” – implying that one who intentionally looks for treasure is embraced in the
provisions

Treasure By Whom Share

Found
One’s own Owner 1. he alone owns the treasure
property 2. if he is married – the treasure belongs to the conjugal property
Another’s Stranger 1. The deposit must be hidden and unknown (Art 439). ½ owner; ½
Property 2. There is no lawful owner. finder
3. Discovery is by chance (Art 438).
4. Discoverer must not be a trespasser
Tenant, ½ owner; ½
Lessee, or tenant
usufructuary
Paid laborer Laborer discovered treasure by chance ½ owner; ½
laborer
Laborer had been precisely employed to look for treasure Owner only
Trespasser Finds treasure with no permission from owner Owner only
On Gov’t Found under a municipal plaza ½ mun.; ½
Prop finder
Treasurer is scientifically or artistically valuable – finder’s ½ share will be given to the
gov’t after payment of just compensation

RIGHT OF ACCESSION
Article 440: The ownership of property gives the right by accession to everything which is produced thereby, or
which is incorporated or attached thereto, either naturally or artificially

Accession:
0 The right of a property owner to everything which is produced thereby or which is incorporated or attached
thereto.
0 “To the owner of the principal belongs the accessory"
0 Accession is not a mode of acquiring ownership because
o because accession presupposes a previously existing ownership over the principal
o It is a right implicitly included in ownership
o It is one of the attributes or characteristics w/c will make up the concept of dominion of ownership

Two kinds of ACCESSION:

1. Discreta (Fruits) = the right pertaining to the owner of a thing over everything which is produced thereby
2. Continua (Incorporated) = the right of the owner of a thing over everything which is incorporated or
attached thereto, either naturally or artificially

DISCRETA (Produced)
Natural Industrial Civil
Spontaneous Those Rents of
products of produced buildings;
the soil; the by lands of Price of
young and any kind leases;
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other through Amount of

products of cultivation perpetual
animals or labor or life
annuities

CONTINUA (Incorporated)
Real Personal
Industrial Natural Adjunction Mixture Specification
Building, Alluvium, Engraftment, Confusion Labor;
Planting, Avulsion, attachment, (liquid), Materials
Sowing Change of weaving, Commixtion
course of painting, (solid)
rivers, writing
Formation
of islands

General Rule:
Art. 441. To the owner belongs
1. The natural fruits
2. The industrial fruits
3. The civil fruits.

Instances when the owner of land does not own the fruits:
1. Possessor in good faith of the land. (He owns the fruits already received [Art 544(1));
2. Usufructuary (Art 566);
3. Lessee gets the fruits of the land (Art 1654; of course, the owner gets the civil fruits in the form of rentals);
4. In the contract of antichresis, the antichretic creditor gets the fruits, although of course, said fruits should be
applied first, to the interest, if any is owing, and then to the principal amount of the loan (Art 2132)

Art. 442. Natural fruits are the spontaneous products of the soil and the young and other products of animals.
Industrial fruits are those produced by lands of any kind through cultivation or labor.
Civil fruits are the rents of buildings, the price of leases of lands and other property and the amount of
perpetual or life annuities or other similar income.

0 The offspring of animals belong to the owner of the female because:

a. sometimes it is not known who the male is
b.during the pregnancy, it is the owner of the female who is greatly burdened by expenses

0 A leased a female animal from B. During the period of lease, the animal produced gave birth. Who owns
the young?
0 A, because a lease contract is onerous. Here, by virtue of the lease contract, the general rule that the owner
of the female is the owner of the young, should give way.

0 Suppose in the above problem, A was merely given the animal by way of commodatum. Would the answer
be the same?
0 No. This time, the owner of the female retains ownership in view of the gratuitous contract.

Talisay Milling, in order to obtain a loan from the bank, requested one of its sugar planters, X, to mortgage
X’s land as security. As a reward, Talisay gave X a bonus. The bonus was later claimed by:
a. the creditor of X
b. the bank – w/c reasoned out that as mortgagee, it was entitled to the fruit and that the bonus should be
considered as civil fruits
Who is entitled to the bonus?

ANS: The creditor of X. The bank as mortgagee is not entitled to the fruit of the land mortgaged. Moreover,
the bonus is not civil fruits. It is not income obtained or derived from the land itself, but income obtained as
compensation for the risk assumed by the owner.

Art. 443. He (landowner) who receives the fruits has the obligation to pay the expenses made by a 3 rd person (in
bad faith) in their production, gathering and preservation.
0 Art. 449 refers only to existing or ungathered crops, because here, the landowner acquires the fruits w/o
indemnifying the planter by the principle of accession continua.
0 Art. 443 applies when the crops have already been gathered – hence accession continua cannot apply –
therefore the principle of accession does not apply here

1. Art. 443 does not apply when the planter is in good faith because if he is, he is entitled to the fruits already
received, hence there is no necessity of reimbursing him
2. The refundable expenses:
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a. must have been used for production, gathering or preservation of the fruits and NOT for the improvement
of the property
b. must have been necessary and not luxurious or excessive

Art. 444. Only such as manifest or born are considered as natural or industrial fruits.
With respect to animals, it is sufficient that they are in the womb of the mother, although unborn.

Civil Fruits Natural & Industrial Fruits

Accrue daily and are therefore considered personal While still growing, are real prop
prop
Can be pro-rated Cannot be pro-rated

RIGHT OF ACCESSION WITH RESPECT TO IMMOVABLE PROPERTY:

General Rule:
Article 445: Whatever is built, planted or sown on the land of another and the improvements or repairs made
thereon, belong to the owner of the land, subject to the provisions in the following articles.

This article deals with accession continua more specifically accession industrial – BUILDING, PLANTING,
SOWING

BASIC PRINCIPLES (accession continua/accession industrial)

1. To the owner of the principal (land for example) must belong also the accessions -- in accordance with the
principle that the "accessory follows the principal."
2. The union or incorporation must, with certain exception, be effected in such a manner that to separate the
principal from the accessory, would result in substantial injury to either;
3. He who is in good faith may be held liable but he should not be penalized;
4. He who is in bad faith may be penalized.
5. No one should enrich himself unjustly at the expense of another
6. Bad faith of one party neutralizes the bad faith of the other so both should be considered in good faith

Art. 446. All works, sowing and planting are presumed made by the owner an at his expense, unless the
contrary is proved.

RIGHTS OF THE LANDOWNER

1st case:
Landowner is the builder/planter/sower and is using the materials of another.
(mem) Article 447: The owner of the land who makes thereon personally or through another, plantings,
constructions or works with the materials of another shall pay their value; and if he acted in bad faith, he shall
also be obliged to the reparation of damages.
The owner of the materials shall have the right to remove them only in case he can do so without injury to
the work constructed, or without the plantings, constructions or works being destroyed.
However, if the landowner acted in bad faith, the owner of the materials may remove them in any event,
with a right to be indemnified for damages.

LANDOWNER IS THE BUILDER/PLANTER/SOWER OWNER OF THE MATERIALS

Good Faith Good Faith
Has the:
Can acquire the materials provided he pays for the 1. Right to receive payment for value of the materials;
value thereof. OR
2. Limited right of removal if there would be no injury
to work constructed, or without plantings or
constructions being destroyed (Article 447)
Bad Faith Good Faith
Has the:
Can acquire the materials provided he pays the value 1. Right to receive payment for value of materials plus
thereof plus damages. damages; OR
2. Absolute right of removal of the work constructed
in any event (whether or not substantial injury is
caused) plus damages
Good Faith Bad Faith
Can acquire the materials without paying for the value Loses the materials completely without receiving any
thereof and entitled to consequential damages due to indemnity (cannot even exercise right of removal –
the defects of the materials w/n substantial injury would be caused)
Bad Faith Bad Faith
Treat as if both are in good faith.
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LAND OWNER IS BUILDER/PLANTER/SOWER OWNER OF MATERIAL

Good Faith Good Faith
1. Limited right of removal if there would be no
injury to work constructed, or without plantings or
constructions being destroyed (Article 447); or
2. Right to receive payment for value of the
materials
Bad Faith Good Faith
1. Right to receive payment for value of materials
plus damages; or
2. Absolute right of removal of the work constructed
in any event plus damages
Good Faith Bad Faith
Right to acquire the improvements without paying
indemnity plus damages
Bad Faith Bad Faith
(Same as though acted in good faith under Article 453) (Same as though acted in good faith under Article 453)

Z Under Article 447, the landowner himself (as distinguished from Article 448) makes the PLANTINGS,
CONSTRUCTIONS OR WORKS on his land, BUT with the materials of another person.
Z In such a situation, a NEW THING is produced (i.e. something that is built or constructed on a land by the
landowner with the materials of another), but does not result in co-ownership. The owner, therefore, of
the materials does not become part owner of the new thing. He is only entitled to recover their value.
Z In short, the law gives the LANDOWNER, who acted in good faith, the right to APPROPRIATE the new
thing provided that he INDEMNIFIES the owner of the materials.
Z Indemnification for damages shall comprehend not only the value of the loss suffered but also that of the
profits which the obligee failed to realize.

May the land owner – builder/planter/sower choose to return the materials instead of reimbursing their value
even without the consent of the owner of the materials?
It depends:
1. If no damage has been made to the materials, or they have not been transformed as a result of the
construction, they may be returned at the land owner’s expense.
2. If damage has been made or there has been transformation, they cannot be returned anymore.

Suppose the land owner – builder/planter/sower has already demolished or removed the plantings, constructions
or works, is the owner of the materials still entitled to claim them?
There are different opinions on this matter but the best rule seems to be that the OM is still entitled to get
them since the law makes no distinction. Moreover, the land owner may insist on returning them for evidently
there is no accession.

Z In case of alienation by the landowner, the owner of the materials may go against the new owner, because
he is the one benefited by the accession (Pacific Farms vs. Esguerra 30 SCRA 684)

Z Meaning of bad faith, good faith

o The land owner – builder/planter/sower is in good faith if he believes that the land belongs to him and he
is ignorant of any defect or flaw in his title and he does not know that he has no right to use such
materials. But when his good faith is coupled with negligence, he is liable for damages.
o The land owner – builder/planter/sower is in bad faith if he makes use of the land or materials which he
knows belong to another.
o The owner of the materials is in good faith if he did not know that another was using his materials, or
granting that he did know, if he informed the user of the ownership and made the necessary
prohibition.
o The owner of the materials is in bad faith if he allows another to use the materials without informing him
of the ownership thereof.

2nd case:
Builder/Planter/Sower builds, plants, or sows on another’s land using his own materials.
(mem) Art 448: The owner of the land on which anything has been built, sown, or planted in good faith shall
have the right to appropriate as his own the works, sowing or planting, after payment of the indemnity provided
for in Article 546 and 548 or to oblige the one who built or planted to pay the price of the land, and one who
sowed, the proper rent.
However, the builder or planter cannot be obliged to buy the land if its value is considerably more than that of
the building or trees. In such case, he shall pay reasonable rent if the owner of the land does not choose to
appropriate the building or trees after indemnity. The parties shall agree upon the terms of the lease and in case
of disagreement, the court shall fix the terms thereof.

Z This article applies only if the builder, planter or sower is in good faith.
Z See also Articles 454 and 447
Page 16 of 82
LAND OWNER
Good Faith
Has the option to:
1. To appropriate or acquire whatever has been built,
planted or sown after paying indemnity which
includes necessary expenses and useful expenses.
If he wishes to appropriate the luxurious
improvement, he must also pay the luxurious
expenses.
OR
2. To obligate the builder/planter to pay the price of
the land and the sower to pay the proper rent.
However, the land owner cannot obligate the
builder/ planter to buy if the value of land is more
then the building or planting.
Bad Faith
To acquire whatever has been built, planter or sown by
paying the indemnity plus damages
Good Faith
Has the option:
1. To acquire whatever has been built, planter or
sown without paying for indemnity except
necessary expenses for the preservation of the
land only and luxurious expenses if he decides to
acquire the luxurious ornaments plus damages
2. To compel the builder/ planter to pay the price of
the land and the sower to pay the proper rent plus
damages
3. To demand the demolition or removal of the work
at the expense of the builder/planter/ sower
Bad Faith
Treat as if both are in good faith.
LAND OWNER
Good Faith
1. Land owner can acquire the improvement by
paying; or
2. Land owner can obligate builder/planter to buy the
land or collect rent from sower. However land
owner cannot obligate the builder/planter to buy
if the value of land is more then the building or
planting.
Bad Faith
BUILDER/PLANTER/SOWER IS THE OWNER OF THE
MATERIALS
Good Faith
Entitled to receive indemnity for necessary, useful
and luxurious expenses (if the land owner appropriates
the luxurious improvements) and has a right of
retention over the land without having to pay for the
rent until the land owner pays the indemnity
Can remove useful improvements provided it does
not cause any injury
If the land owner does not appropriate the luxurious
improvements, he can remove the same provided there
is no injury to the principal thing
To purchase the land at fair market value when the
value is not considerably more than the value of the
builder or trees
If the value of the land is considerably more than
the value of the building or trees, he cannot be
compelled to buy the land; in such case, he shall pay
reasonable rent if the land owner does not choose
option 1.
If he cannot pay the purchase price of the land, the
land owner can require him to remove what has been
built or planted.
If he cannot pay the rent, the land owner can eject
him from the land.
Good Faith
If land owner acquires whatever has been built,
planted or sown, he must be indemnified of the value
plus damages
If land owner does not acquire, he can remove
whatever has been built or planted whether or not it
will cause any injury and is entitled to damages.
If land owner does not acquire, he cannot insist on
purchasing the land.
Bad Faith
Loses what has been built, planted or sown.
Entitled to reimbursement for necessary expenses
for the preservation of the land but has no right of
retention.
Not entitled to reimbursement for useful expenses
and cannot remove the useful improvements even if
the removal will not cause any injury
Not entitled to reimbursement for luxurious
expenses except when the land owner acquires the
luxurious improvements, the value of which is the one
at the time the land owner enters possession (the
depreciated value)
Can remove luxurious improvements if it will not
cause injury and LO does not want to acquire them.
Must pay the price of the land or the rent plus damages
Must remove luxurious improvements if it will not
cause injury and LO does not want to acquire them.
Bad Faith
BUILDER/PLANTER/SOWER IS THE OWNER OF THE
MATERIALS
Good Faith
Good Faith
1. Remove materials plus damages; or
Page 17 of 82

2. Demand payment for materials plus damages

Good Faith Bad Faith
Options
1. Appropriate works without indemnity plus
damages; or
2. Demolish plus damages; or
3. Compel BPS to buy land regardless of the value of
the land and the BP, plus damages

Obligations
1. Land owner must pay for necessary expenses for
preservation.
2. Land owner must pay BPS expenses under Article
443 if applicable
Bad Faith Bad Faith
(Same as though acted in good faith under Article 453) (Same as though acted in good faith under Article 453)

 The land owner is in good faith:

1. If he is ignorant of the builder/planter/sower’s act
2. Even if he did know, he expressed his objection
3. If he believed that the builder/planter/sower has a right to construct, plant or sow
 Otherwise, he shall be in bad faith.
 The builder/planter/sower is in good faith if he thought that the land was his.

Option of the LANDOWNER IS IN GOOD FAITH if the BPS is in Good Faith

1. RIGHT OF APPROPRIATION = To appropriate for himself anything that has been built, planted or sown
upon the proper payment of indemnity (Ignao vs. lAC 1/18/91)
a. Ownership over the thing built, sown, or planted does not pass to the landowner till after payment
therefore has been given.
b. In the meantime, the builder, planter or sower (who is in good faith) has the right of retention. (Martinez
vs. Baganus, 28 Phil 500).
2. RIGHT TO COMPULSORY SELLING = To compel the builder to buy the land unless the value of the
land be considerably more than the value of what has been built, planted or sown.
a. In this situation, there is no right of retention because the planter, builder or sower is the one required to
pay (Bernardo vs. Bataclan 66 Phil 598).
3. LIMITED RIGHT OF REMOVAL =
a. Can only be availed of when after having opted to sell the land to the BPS, the BPS fails to pay the land
b. Because if BPS cannot pay for the land, he should not be allowed to continue using it

Z It is the landowner who has the option, not the BPS

Z Once a choice is made by the landowner, it is generally irrevocable, thus, if the landowner has elected to
get the building, but she is finally unable to pay for the indemnity or value of the building, she cannot
afterwards elect to sell the land (Tayag vs. Yuseco, 97 Phil 712)

IF THE BUILDER, PLANTER IS IN BAD FAITH and the Landowner in good faith): (Articles 449, 450,
and 451)
1. He loses what is built, planted or sown without right to indemnity (except necessary expenses for the
preservation of the land (Article 452);
2. He may be required to demolish or remove what is built or planted or sown.
3. The builder may be compelled to pay the price of the land (whether or not the value of the land is
considerably higher than the value of the house) and the sower proper rent;
4. He is liable to pay damages.

PECSON vs. CA (244 SCRA 407)

F: Pecson failed to pay realty taxes thus his land was sold at a public auction to Nepomuceno and who in turn
sold it to Nuguid. Pecson challenged the validity of the auction sale, contending that it did not include the sale
of the apartment building. Naguid opted to pay Pecson the value of the building at P53, 000. But Naguid
contended that considering that the ownership of the lot is already uncontested, the decision having become
final and executory, the rents of the apartment buildings should have been properly paid to him by the tenants
instead of Pecson. (rents amounted to more than P53,000)
H: By its clear language, Article 448 refers to a land whose ownership is claimed by two or more parties, one of
whom has built some works, one sown or planted something. The building, planting or sowing may have been
made in good faith or in bad faith. Article 448 does not apply to a case where the owner of the land is the
builder, sower or planter who then later loses ownership of the land by sale or donation. Where the true owner
himself is the builder of works on his own land, the issue of good faith or bad faith is entirely irrelevant. While
Article 448 is not pertinent to the case at bar, nevertheless, the provision therein with respect to indemnity may
be applied by analogy considering that the primary intent of Article 448 is to avoid a state of forced co-
ownership.
The objective of Article 546 of the Civil Code is to administer justice between the parties involved in such a
way as neither one nor the other may enrich himself of that which does not belong to him. It is therefore the
current market value of the improvement which should he made the basis of reimbursement. A contrary ruling
Page 18 of 82

would unjustly enrich the private respondents who would otherwise be allowed to acquire a highly valued
income-yielding four-unit apartment building for a measly amount.
The trial court also erred in ordering the petitioner to pay monthly rentals equal to the aggregate rentals paid
by the lessees of the apartment building. Since, the private respondents opted to appropriate the apartment
building; the petitioner is thus entitled to the possession and enjoyment of the apartment building, until he is
paid the proper indemnity, as well as of the portion of the lot where the building was constructed. This is so,
because the right to retain the improvements while the corresponding indemnity is not paid implies the tenancy
or possession in fact of the land which it is built, planted or sown. The petitioner not having been so paid, he
was entitled to retain ownership of the building and, necessarily, the income there from (Mendoza vs. de
Guzman, 54 SCRA 164)

Art. 449. He who builds, plants or sows in bad faith on the land of another, loses what is built, planted or down,
w/o right of indemnity.

Art. 450. The owner if the land on w/c anything has been built, planted or sown in bad faith may demand:
1. the demolition of the work, or
2. that the planting or sowing be removed, in order to replace things in their former condition at the expense of
the person who built, planted or sowed;
or he may compel

1. the builder or planter to pay the price of the land and

2. the sower the proper rent.

Art. 451. In the cases of the 2 preceding articles, the landowner is entitled to the damage from the builder,
planter or sower.

Art. 452. The builder, planter or sower in bad faith is entitled to reimbursement for the necessary expenses of
preservation of the land.

Art. 453. If there was bad faith, not only on the part of the person who built, planted and sowed on the land of
another, but also on the part of the owner of such land, the rights of one and another shall be the same as though
both had acted in good faith.
It is understood that there is bad faith on the part of the landowner whenever the act was done:
1. w/ his knowledge and
2. w/o opposition on his part.

Art. 454. When the landowner acted din bad faith and the builder, planter or sower proceeded in good faith, the
provisions of Art. 447 shall apply.

3rd case:
Builder/Planter/Sower builds, plants, or sows on another’s land with materials owned by third person
Art. 455. If the materials, plants or seeds belong to a 3 rd person who has not acted in bad faith, the owner of the
land shall answer subsidiarily for their value and only in the event that the one who made use of them has no
property w/ w/c to pay.
This provision shall not apply if the owner makes use of the right granted by Art. 450.
If the owner of the materials, plants or seeds has been paid by the builder, planter or sower, the latter may
demand from the landowner the value of the materials and labor.

LAND OWNER BUILDER/PLANTER/SOWER OWNER OF THE MATERIALS

Good Faith
Has the option
1. To acquire whatever has been
built, planted or sown provided
he pays the indemnity (which
includes the value of what has
been built, planted or sown
plus value of the materials)
2. To oblige the builder/
planter/sower to buy the land
unless the value thereof is
considerably more than the
value of the building or trees
Good Faith
To receive indemnity from the land
owner and has a right of retention
over the land until the land owner
pays
To buy the land
Good Faith
To receive indemnity from the
builder/planter/sower who is
principally/ primarily liable. If the
builder/ planter/sower is insolvent,
then demand indemnity from land
owner who is subsidiarily liable.
But has no right of retention against
the builder/planter/sower and more
so with the land owner
To receive indemnity from the
builder/planter/sower only. The
land owner has no subsidiary
liability. But has right of retention.
OR

To remove materials if there will be

no injury on the building or trees

AND
Page 19 of 82
Good Faith
Has the option
1. To acquire whatever has been
built, planted or sown provided
he pays the indemnity (which
includes the value of what has
been built, planted or sown
plus value of the materials)
2. To oblige the builder/
planter/sower to buy the land
unless the value thereof is
considerably more than the
value of the building or trees
Good Faith
Has the option
1. To acquire whatever has been
built, planted or sown without
paying indemnity except
necessary expenses, if he
should acquire luxurious
improvements
2. To oblige the builder/ planter
to pay the price of the land and
the sower to pay the proper
rent
3. To demolish or remove what
has been built or planted
Bad Faith
To acquire what has been built,
planted or sown by paying the
indemnity plus damages to
builder/planter/ sower
Bad Faith
To acquire what has been built,
planted or sown by paying the
indemnity plus damages to
builder/planter/ sower
LAND OWNER
Good Faith
1. If the owner of the materials
does not remove the materials
and the builder/planter/ sower
pays, the land owner can
acquire the improvement by
paying the builder/planter/
sower
2. If the owner of the materials
does not remove the materials,
and the builder/planter/ sower
pays, the land owner can
obligate the builder/planter to
buy the land or collect rent
from sower. However the land
Good Faith
To receive indemnity from the land
owner and has a right of retention
over the land until the land owner
pays
To buy the land
Bad Faith
Loses what has been built, planted
or sown but he is entitled to be
indemnified for necessary expenses
and luxurious expenses should the
land owner acquire luxurious
ornaments
Has no right of removal even if it
will not cause any injury
To pay the price of the land
Cannot do anything about it so he
must remove
Good Faith
To receive indemnity from land
owner plus damages
Cannot insist on purchasing the
land
Good Faith
To receive indemnity from land
owner plus damages
Cannot insist on purchasing the
land
BUILDER/PLANTER/SOWER
Good Faith
Has a material rent lien against the
builder/planter/ sower for the
payment of the value of the
materials
Bad Faith
Whatever is the choice of the land
owner
1. He loses the materials in favor
of the builder/planter/ sower
AND
2. He has no right to receive
indemnity from the BPS
Bad Faith
(Since both builder/planter/ sower
and the owner of the materials are
in bad faith, treat them as if both in
good faith)
Whatever is the choice of the
land owner, he has the right to
receive indemnity for the value of
the materials from the builder/
planter/sower only. The land
owner has no subsidiary liability
whatsoever.
If land owner chooses option 1,
he has no right to remove materials
even if there will be no injury.
If land owner chooses option 2,
he has the right of removal
provided it does not cause any
injury to the property to which it is
attached.
Has liability for damages to
whoever ends up owning the
building for the inferior quality of
materials.
Good Faith
To receive indemnity for value of
materials from
builder/planter/sower principally or
from land owner in case the
builder/ planter/sower is insolvent
(subsidiary liability)
Bad Faith
No right to receive indemnity for
value of materials from builder/
planter/sower nor from land owner
who ends up owning the building
or trees.
OWNER OF THE MATERIALS
Good Faith
1. Limited right of removal if
there would be no injury to
work constructed, or
without plantings or
constructions being
destroyed (Article 447); or
2. Right to receive payment
for value of the materials
from builder/planter/ sower.
Land owner is subsidiarily
liable.
Page 20 of 82

owner cannot obligate the

builder/planter to buy if
the value of land is more then
the building or planting.
3. The land owner is subsidiarily
liable to the owner of the
materials.
Good Faith Good Faith Bad Faith
1. Land owner can acquire the Keep what was built, planted or Lose the materials to the
improvement by paying; sown without indemnity to the builder/planter/sower without right
or owner of the materials plus to indemnity
2. Land owner can obligate damages from the owner of the
builder/planter to buy the land materials
or collect rent from sower.
However land owner cannot
obligate the builder/ planter to
buy if the value of land is more
then the building or planting.
3. LO not subsidiary liable
for cost of materials
Good Faith Bad Faith Bad Faith
Options Right to receive payment for
1. Appropriate works without value of the materials
indemnity plus damages; or
2. Demolish plus damages;
or
3. Compel builder/planter to buy
land regardless of the value of
the land and the sower to pay
rent, plus damages

Obligations
1. Land owner must pay for
necessary expenses for
preservation.
2. Land owner must pay
builder/planter/sower expenses
under Article 443* if
applicable
Bad Faith Bad Faith Bad Faith
(Same as though acted in good (Same as though acted in good (Same as though acted in good
faith under Article 453) faith under Article 453) faith under Article 453)
Bad Faith Good Faith Good Faith
Subsidiarily liable to the owner of 1. Remove improvements plus 1. Remove materials if possible
the materials for value of damages against the land without injury
materials owner; or 2. Collect value of materials from
2. Demand payment for builder/planter/ sower. Land
improvement plus damages owner is subsidiarily liable
Bad Faith Bad Faith Good Faith
1. If the owner of the materials 1. Right to receive payment for
does not remove the materials value of materials from the
and the builder/planter/sower builder/planter/sower and the
pays, the land owner can land owner is subsidiarily
acquire the improvement by liable plus damages; or
paying the 2. Absolute right of removal of
builder/planter/sower the work constructed in any
2. If the owner of the materials event plus damages
does not remove the materials,
and the builder/planter/sower
pays, the land owner can
obligate the builder/planter to
buy the land or collect rent
from the sower. However, the
land owner cannot obligate the
BP to buy if the value of land
is more then the building or
planting.
3. The land owner is subsidiarily
liable to the owner of the
materials.
Good Faith Bad Faith Good Faith
Page 21 of 82

1. If the owner of the materials 1. Remove materials if possible

does not remove pays, the land without injury plus damages
owner can acquire the against builder/ planter/sower.
improvement by paying the 2. Collect value of materials from
builder/ planter/sower. builder/planter/sower plus
2. If the owner of the materials damages against the
does not remove the materials, builder/planter/sower. The
and the builder, planter or land owner is subsidiarily
sower pays, the land owner can liable for value of the materials
obligate the builder/planter to
buy the land or collect rent
from sower. However the land
owner cannot obligate the
builder/planter to buy if the
value of land is more then the
building or planting.
3. Land owner is subsidiarily
liable to the owner of the
materials.
Bad Faith Good Faith Bad Faith
1. Right to acquire the materials Loses right to materials without
without paying indemnity plus right to indemnity
damages
2. Remove improvement plus
damages; or
3. Demand payment for
improvement plus damages

Art. 456. In the cases regulated in the preceding articles, good faith does not necessarily exclude negligence,
w/c gives right to damages under Art. 2176.

ALLUVIUM:
Art 457: To the owners of land adjoining the banks of rivers belong the accretion which they gradually receive
from the effects of the current of the waters.

This article applies also to creeks, streams, lakes (although the soil deposited may not be called alluvium.)

Forms of accession natural:

! Alluvium,
! avulsion,
! change of course of rivers,
! formation of islands

Alluvium
The soil deposited or added to (accretion) the lands adjoining the banks of rivers and gradually received as
an effect of the current of the waters. By law, the accretion is owned by the owner of the estate fronting the river
bank (riparian owner).

Accretion
The process whereby soil is deposited, alluvium is the soil deposited on river banks.

Essential requisites of alluvium:

1. The deposit should be gradual and imperceptible as a process (natural);
2. Cause is the current of the river (and not due to works expressly designed fro the purpose; does not apply to
accretion by man-made means (Republic vs. CA 132 SCRA 154));
3. Current must be that of a river (if lake, the deposit may not be called alluvium but the principle is the same,
(Art. 84 Spanish Law on Waters); if the sea, the deposit belongs to the State);
4. The river must continue to exist (otherwise, if the river disappears, Article 58 PD 1067, Art 461 CC. shall
apply); and
5. The increase must be comparatively little.

! The riparian owner may not necessarily make an express act of possession, it being that the accretion is
automatic the moment the soil deposit appears; (Agne vs Director 181S793)
! On the other hand, an alluvial deposit does not automatically become registered land simply because the lot
which receives it is covered by a Torrens title. Although the owner of the land on which the alluvial
deposit is made becomes automatically the owner of the alluvial deposit, the law not requiring any act of
possession on his part from the moment the deposit becomes manifest. Still ownership of a piece of land
is one thing and registration under the Torrens System is another. In order that the alluvial deposit may
be entitled to the protection of imprescriptibility, the same must be placed under the operation of the
Land Registration Law. An unregistered alluvial property is therefore subject to acquisition through
prescription by third person (Grande vs. CA, 6-30-62)
Page 22 of 82

! In Zapanta v. Director (10/30/62), it was held that accreted lands adjoining non-navigable and non-floatable
rivers which are formed gradually as a result of the setting up or erection of fish traps belong to the
riparian owner and not to the public domain, in the absence of evidence showing that the setting-up of
fish traps was expressly intended or designed by the riparian owner to cause or bring about accretion.

Republic v. CA (L-61647; 10/12/1984)

F: CFI and CA ordered 4 hectares of land to be registered to Tancinco’s as these were the results of accretion
H: land cannot be registered since the cause of accretion was man-made; land was even portions of the bed of
Meycauayan river, thus part of public domain
The requirement that the deposit should be due to the effect of the current of the river is indispensable. This
excludes from Art 457 of NCC all deposits caused by human intervention. Alluvion must be the exclusive work
of nature.
The reason behind the law giving the riparian owner the right to any land or alluvion deposited by a river is
to compensate him for the danger of loss that he suffers because of the location of his land. If estates bordering
on rivers are exposed to floods and other evils produced by the destructive force of the waters and if by virtue of
lawful provisions, said estates are subject to encumbrances and various kinds of easements, it is proper that the
risk or danger which may prejudice the owners thereof should be compensated by the right of accretion.
Hence, the riparian owner does not acquire the additions to his land caused by special works expressly
intended or designed to bring about accretion. When the private respondents transferred their dikes towards the
river bed, the dikes were meant for reclamation purposes and not to protect their property from the destructive
force of the waters of the river.

FERRER VS. BAUT1STA (231S257)

F: Ferrer claims ownership over the land by virtue of accretion while Bautista equally assert ownership over the
property on account of long occupation and free patent issued in favor of them over the land
H: Cites Article 457 of the Civil Code.
Undoubtedly, plaintiff is the lawful owner of the accretion, she being the registered owner of Lot Not 1980
which adjoins the alluvial property. Alluvium gives to the owners of land adjoining the banks of rivers or
streams any accretion which is gradually received from the effects of the current of water. The rationale for the
rule is to provide some kind of compensation to owners of land continually exposed lo the destructive force of
water and subjected to various easements.
The Director of Lands has no authority to grant a free patent over the land that has passed to private
ownership and which has thereby ceased to be public land. Any title thus issued or conveyed by him would be
null and void. Private respondents, therefore, acquired no right or title over the disputed land by virtue of the
free patent since at the time it was issued in 1966, it was already private property and not part of the disposable
land of the public domain.

Art. 458. The owners of estates adjoining ponds or lagoons do not acquire the land left dry by the natural
decrease of the waters, or lose that inundated by them in extraordinary floods.

AVULSION

Article 459: Whenever the current of a river, creek or torrent segregate from an estate on its bank a known
portion of land and transfers it to another estate, the owner of the land to which the segregated portion belonged
retains the ownership of it, provided that he removes the same within two years.

Avulsion
The process whereby the current of a RIVER, CREEK, or TORRENT segregates from an estate on its bank
a KNOWN PORTION of land and transfers it to another estate.

Avulsion implies a violent tearing or breaking away. It may also be referred to as “delayed accession” in
the sense that if the owner abandons the soil involved, or fails to remove (not merely claim) the same within
two years, the land to which it had been attached acquires ownership thereof.

! Torrent means a violent, rushing or turbulent stream

! The law does not make a distinction whether the portion segregated is big or small.
! If the detached portion is not attached to another's land but simply is in the middle of the river, ownership
still remains with the person whose land it had been detached.

If the cause of the damage is due to artificial means, is the riparian owner entitled to compensation?
Ans: BAES vs. CA: If the riparian owner is entitled to compensation for the damage to or loss of his property
due to natural causes, there is all the more reason to compensate him when the change in the course of the river
is effected through artificial means. The loss to of Baes of the land covered by the canal was the result of a
deliberate act on the part of the government when it sought to improve the flow of the Tripa de Gallina creek. It
was therefore obligated to compensate the Baeses for the loss.

Alluvium Avulsion
The deposit of the soil is gradual Sudden or abrupt process may be seen
The soil cannot be identified The portion segregated is identifiable or verifiable
Belongs to the owner of the property to which it is Belongs to the owner from whom the property was
Page 23 of 82

attached detached

Art. 460. Trees uprooted and carried away by the current of the waters belong to the owner of the land upon
which they may be cast, if the owners do not claim them within six months. If such owners claim them, they
shall pay the expenses incurred in gathering them or putting them in a safe place.

Art. 461. 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. However, the
owners of the lands adjoining the old bed shall have the right to acquire the same by paying the value thereof,
which value shall not exceed the value of the area occupied by the new bed. (repealed by PD 1067 Sec 58)

Change of the Course of the River:

PD 1067 Art. 58. When a river or stream suddenly changes its course to traverse private lands, the owners of
the affected lands may not:
1. compel the government to restore the river to its former bed;
2. restrain the government from taking steps to revert the river or stream to its former course.
The owners of the land thus affected are not entitled to compensation for any damage sustained thereby.
However, the former owners of the new bed shall be the owners of the abandoned bed in proportion to the area
lost by each.
The owners of the affected lands may undertake to return the river or stream to its old bed at their own
expense; Provided, That a permit therefore is secured from the Secretary of Public Works, Transportation and
Communication and work pertaining thereto are commenced within 2 years from the change in the course of the
river or stream.

Art. 462. Whenever a river, changing its course by natural causes, opens a new bed through a private estate,
this bed shall become of public dominion.

Art. 463. Whenever the current of a river divides itself into branches, leaving a piece of land or part thereof
isolated, the owner of the land retains his ownership. He also retains it if a portion of land is separated from the
estate by the current.

Requisites for Art. 461 to apply:

1. The change must be sudden in order that the old river bed may be identified
2. The changing of the course must be more or less permanent
3. The change of the river bed must be a natural one
4. There must be definite abandonment from the government in taking steps to bring the river back to its old bed
5. The river must continue to exist

If a river bed simply dries up without changing its course, then the dried up river bed belongs to the state
since no private lands are injured.

Formation of island

Art. 464. Islands which may be formed on the seas within the jurisdiction of the Philippines, on lakes, and on
navigable or floatable rivers belong to the State.

Art. 465. Islands which through successive accumulation of alluvial deposits are formed in non-navigable and
non-floatable rivers, belong to the owners of the margins or banks nearest to each of them, or to the owners of
both margins if the island is in the middle of the river, in which case it shall be divided longitudinally in halves.
If a single island thus formed be more distant from one margin than from the other, the owner of the nearer
margin shall be the sole owner thereof.

Adjunction or conjunction (Articles 466-471)

Art. 466. Whenever two movable things belonging to different owners are, without bad faith, united in such a
way that they form a single object, the owner of the principal thing acquires the accessory, indemnifying the
former owner thereof for its value.

Art. 467. The principal thing, as between two things incorporated, is deemed to be that to which the other has
been united as an ornament, or for its use or perfection. [1](test of intention)

Art. 468. If it cannot be determined by the rule given in the preceding article which of the two things
incorporated is the principal one, the [2] thing of the greater value shall be so considered, and as between two
things of equal value, that of the [3] greater volume.
In painting and sculpture, writings, printed matter, engraving and lithographs, the board, metal, stone,
canvas, paper or parchment shall be deemed the accessory thing.

([4] that which has greater merits = from the combined consideration of utility and volume)
Page 24 of 82

Art. 469. Whenever the things united can be separated without injury, their respective owners may demand
their separation.
Nevertheless, in case the thing united for the use, embellishment or perfection of the other, is much more
precious than the principal thing, the owner of the former may demand its separation, even though the thing to
which it has been incorporated may suffer some injury.

Art. 470. Whenever the owner of the accessory thing has made the incorporation in bad faith, he shall lose the
thing incorporated and shall have the obligation to indemnify the owner of the principal thing for the damages
he may have suffered.
If the one who has acted in bad faith is the owner of the principal thing, the owner of the accessory thing
shall have a right to choose between the former paying him its value or that the thing belonging 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.
If either one of the owners has made the incorporation with the knowledge and without the objection of the
other, their respective rights shall be determined as though both acted in good faith.

Art. 471. Whenever the owner of the material employed without his consent has a right to an indemnity, he
may demand that this consist in the delivery of a thing equal in kind and value, and in all other respects, to that
employed, or else in the price thereof, according to expert appraisal.

ADJUNCTION
PRINCIPAL ACCESSORY
Good Faith Bad Faith Good Faith Bad Faith
 acquires the  liable to indemnify  has the right to be  loses the accessory
accessory the value of the indemnified for the plus damages
 can demand accessory value of the  must indemnify for
separation  can be compelled accessory the value of the
to separate objects  can demand principal
even if it results in separation if it does  liable for damages
injury not cause injury
 is liable for  if value of the
damages accessory is greater
than the value of
the principal – can
demand separation
even if it causes
injury

Commixtion or Confusion (Articles 472, 473)

Art. 472. If by the will of their owners two things of the same or different kinds are mixed, or if the mixture
occurs by chance, and in the latter case the things are not separable without injury, each owner shall acquire a
right proportional to the part belonging to him, bearing in mind the value of the things mixed or confused.

Art. 473. If by the will of only one owner, but in good faith, two things of the same or different kinds are mixed
or confused, the rights of the owners shall be determined by the provisions of the preceding article.
If the one who caused the mixture or confusion acted in bad faith, he shall lose the thing belonging to him
thus mixed or confused, besides being obliged to pay indemnity for the damages caused to the owner of the
other thing with which his own was mixed.

MIXTURE
How Mixed Requirement Result
By:
 will  good faith  co-ownership
 chance  things not separable w/o  respective interests are
 accident causing injury proportionate to the value of
 consent the value of the materials

Specification (Article 474)

Art. 474. One who in good faith employs the material of another in whole or in part in order to make a thing of
a different kind, shall appropriate the thing thus transformed as his own, indemnifying the owner of the material
for its value.
If the material is more precious than the transformed thing or is of more value, its owner may, at his option,
appropriate the new thing to himself, after first paying indemnity for the value of the work, or demand
indemnity for the material.
If in the making of the thing bad faith intervened, the owner of the material shall have the right to
appropriate the work to himself without paying anything to the maker, or to demand of the latter that he
Page 25 of 82

indemnify him for the value of the material and the damages he may have suffered. However, the owner of the
material cannot appropriate the work in case the value of the latter, for artistic or scientific reasons, is
considerably more than that of the material.

SPECIFICATION
PRINCIPAL ACCESSORY
Good Faith Bad Faith Good Faith Bad Faith
 appropriates new thing  loses his work w/o  appropriates the new  loses his
except when the being indemnified thing except when material w/o
materials are more for his labor the value of the being
precious than the new  is liable for the resultant work is indemnified
thing value of the more valuable  is liable for the
 must indemnify the materials  must indemnify the value of the
value of materials  is liable for value of labor work
damages  is liable for
damages

DISTINCTIONS
Adjunction
1. involves at least 2 things
2. as a rule, accessory
follows the principal
3. the things joined retains
their nature
Mixture
1. involves at least 2 things
2. as a rule, co-ownership
results
3. the things mixed or
confused may retain or
lose their respective
natures
Specification
1. may involve only 1 thing but the form
is changed
2. as a rule, accessory follows the
principal
3. the new object retains or preserves the
nature of the original object

Art. 475. In the preceding articles, sentimental value shall be duly appreciated.

END OF 1ST EXAM

Page 26 of 82

QUIETING OF TITLE

Article 476. Whenever there is a

! cloud on title of real property or any interest therein,
! by reason of any
o instrument,
o record,
o claim,
o encumbrance, or
o proceeding
! which is apparently valid or effective but is in truth and in fact
o invalid,
o ineffective,
o voidable or unenforceable, and
o may be prejudicial to said title,
! an action may be brought to remove such cloud or to quiet the title.

An action may also be brought to prevent a cloud from being cast upon title to real property or any interest
therein.

Please observe that when the instrument is not valid on its face, the remedy does not apply.

Kinds of Action Referred To:

1. Remedial – an action to remove the cloud or to quiet title
2. Preventive – an action to prevent a future cloud or doubt

Requisites for Quieting of Title:

1. There must exist a cloud or doubt on the title because of an:
a. instrument (deed or contract)
b. record
c. claim
d. encumbrance
e. proceeding
2. Which is APPARENTLY VALID on its face
3. But is truth and in fact it is:
a. Invalid
b. Ineffective
c. Voidable
d. Unenforceable
e. Extinguished or terminated pr barred by extinctive prescription
4. And may be PRJUDICIAL to the title

Test:
Would the owner of the property in an action at law brought by the adverse party and founded upon the
instrument or claim, be required to offer evidence to defeat a recovery?
If proof is essential, the cloud exists; if proof is not needed, no cloud is cast.
He must also show that he has interest on the property, aside from proving the “cloud.”

Example:
Alma's land was sold by Roger (a forger) to B, a buyer in good faith. Alma’s name had been forged by
Roger in the deed of sale. The sale on its face is apparently valid, with Alma's name indicted as the seller. In
truth, however, the sale is defective because of the forgery. Alama’s remedy is an action to quiet title.

SECUYA vs. VDA. DE SELMA 329 SCRA 244

F: Caballero executed an AGREEMENT OF PARTITION in favor to Sabellona. This lot was later sold by
Sabellona to Secuya. Selma bought the lot, including the portion occupied by Secuya’s. So, Secuya brought an
axn to quiet title
H: the axn to quiet title is not proper bec. Secuya failed to prove they have interest over the land
In an action to quiet title, the plaintiffs or complainants must demonstrate a legal or an equitable title to, or
an interest in, the subject real property likewise they must show that the deed, claim, encumbrance or
proceeding that purportedly casts a cloud on their title is in fact invalid or inoperative despite its prima facie
appearance of validity or legal efficacy.
An action may also be brought to prevent a cloud from being cast upon title to teal property or any interest
therein.
In the case at bar, the action must fail because petitioners failed to show the requisite title. Petitioners allege
that TCT No. 5679-C-120, issued in the name of private respondent Selma is a cloud on their title as owners and
possessors of the subject property which is a 3,000 square-meter portion of Lot No. 5679-C-120 covered by the
TCT. But the underlying question is, do petitioners have the requisite title that would enable them to avail
themselves of the remedy of quieting of title?
Petitioners anchor their claim of ownership on two documents: the Agreement of Partition executed by
Maxima Caballero and Paciencia Sabellona and the Deed of Confirmation of Sale executed by Ramon
Page 27 of 82

Sabellona. However, the Court found that the agreement was not one of partition, because there was no property
to partition and the parties were not co-owners. Rather, it is in a nature of a trust agreement.

Nature of the action

This is an action in personam because it is directed against the defeated party or privies.
It may also be considered "quasi in rem” since it involves interest in a real property.

Note:
An action to quiet title instituted against a co-owner is not res adjudicata as to the other co-owners if they
were not made parties thereto.

Does action to quiet title prescribe?

Ans: It depends, if the plaintiff is in possession of the properly, the action does not prescribe. But if the
plaintiff is not in possessing of the property, the action may prescribe (Fernandez vs. CA, 189 SCRA 780;
Mamadsual vs. Moson, 140 S 83)

PINGOL VS. CA 226 SCRA 118

F: Pingol sold his land to Donasco, on installment basis. Donasco immediately took possession of the property
and constructed a house thereon and began paying the installments until in 1976, he defaulted in his payments.
In 1984, he died. Pingol refused to accept the balance from Donasco’s heirs saying the complaint for specific
performance should have been filed in 1976, and since the complaint was filed only in I988, or more than 10
years later, the action has prescribed.
H: this is an action to quiet title thus impresciptible on the part of Donasco’s heirs since they possessed the land
Although the plaintiffs complaint was denominated as one for specific performance, it is in effect an action
to quiet title. Prescription thus cannot be invoked against the private respondents for it is aphoristic that an
action to quiet title to property in one's possession is imprescriptible.
The rationale for this rule has been aptly stated thus: "The owner of real property who is in possession
thereof may wait until his possession is invaded or his title is attacked before taking steps to vindicate his right.
A person claiming title to real property, but not in possession thereof, must act affirmatively and within the time
provided by the statute. Possession is a continuing right to defend such possession. So it has been determined
that an owner of real property in possession has a continuing menace to his title. Such menace is compared to a
continuing nuisance or trespass, not barred by statute until continued without interruption for a length of time
sufficient to affect a change of title as a matter of law.”

Bailon v. CA (160 S 738)

F: one sister sold the land without the knowledge of others. This was only discovered more than 30 years later
H: buyer can only claim on the share of that one sister
W/n the sale of one co-owner binds other co-owners
Even if a co owner sells the whole property as his, the sale will affect only his own share but not those of the
other co-owners who did not consent to the sale. Under Art. 493, the sale or other disposition affects only his
undivided share and the transferee gets only what would correspond to his grantor in the partition of the thing
owned in common.
Therefore, Afable became a co-owner of the said property by virtue of the sale by Rosalia and ,6audencio
Bailon.

W/N there is laches

While there was a delay in Baton's rights, such delay was not attended with any knowledge of the sale nor
with any opportunity to bring suit.
Bailon had no notice of the sale made by their eldest sister, Rosalia. It is undisputed that Rosalia's sisters as,
co-owners had entrusted the care and management of the parcel of land to Rosalia.
IN view of lack of knowledge by Bailon of the conduct of Rosalia in selling the land without their consent in
1975 and in the absence of any opportunity to institute the proper action until 1981, laches may not be asserted
against Bailon.

Sapto v. Fabiana (L-11285; 5/16/1958)

F: co-heirs brothers sold their land to Fabiana. The sale was not registered. When the brothers died, their heirs
filed an action to recover the land. RTC ruled that the sale is binding to the heirs thus ordered the heirs to
execute the necessary deed of conveyance. The heirs contended that the action has prescribed since more than
20 years has passed since the original sale
H: this is an action to quiet title thus it is imprescriptible
The delivery of possession of the land had consummated the sale and transferred title to Fabiana, registration
of the contract not being indispensable as between the parties. The action for conveyance was actually one to
quiet title, to remove the cloud cast upon Fabiana's ownership by the refusal of Sapto to recognize the sale made
by the predecessor. It is an established rule that actions to quiet title are imprescriptible.

Bucton v. Gabar (L-36359; 1/31/1974)

F: Josefina bought a parcel of land but entered into a verbal agreement with Bucton that he would pay half of
the price and they would then co-own the land. Bucton possessed the land. After the Deed of Sale was executed,
Josefina refused to obtain a separate title for Bucton. Bucton filed a case. CA ruled that Bucton action has
already prescribed.
Page 28 of 82

H: action has not yet prescribed

The verbal agreement between Bucton and Josefina, although not consigned in public instrument or formal
writing, is nevertheless valid and binding between the two of them. Both B and J became owners in 1947, when
a deed of sale was executed. The CA erred in holding that B's right of action had already prescribed. The real
and ultimate basis of B’s action is the ownership of ½ 1/2 of the lot coupled with their possession thereof,
which entities B to a conveyance of the property.
When the action for conveyance is actually one to quiet title, it is an established rule that actions to quiet title
to property are imprescriptible.
By the delivery of the possession to the land, the sale was consummated and title was transferred, that the
action is actually not for specific performance, since all it seeks is to quiet title.

Coronel v. IAC (155 S 270)

F: Coronel wants to eject Merlan from the land. Merlan insisted that what was sold to Coronel was only the
share of the other co-owners. This action was only brought after 30 years
H: the axn is not barred by prescription
The counterclaim of respondents which was in effect a reconveyance to them of their 1/3 share has not
prescribed.
As lawful possessors and owners of the lot in question, their cause of action falls within the settled
jurisprudence that an action to quiet title to property in one's possession is imprescriptible. Their undisturbed
possession over the period of more than 25 years gave them continuing right to seek the aid of a court of equity
to determine the nature of the adverse claim of a third party and the effect of his own title.
In the same manner there is no bar based on laches to assert their right over 1/3 of the undisputed property.
The facts shows that private respondents have always been in peaceful possession for 25 years disrupted only in
1975, when petitioner tried to remove them. It was only this point that they knew about the supposed sale of the
Naic Estate and they immediately resisted.

Robles v. CA 328 SCRA 97

F: After their father died, they agreed that Lucio Robles will cultivate the land while their half-brother, Hilario,
will be pay the land taxes. Hilario mortgaged the land without their knowledge. Land was subsequently
foreclosed. Lucio and others then filed action to quiet title.
H: Hilario only mortgaged part of the property which he owns as a co-owner, thus Lucio’s share was not
affected
An action for quieting of title is a common law remedy for the removal of any cloud or doubt or uncertainly
on the title to the real property. It is essential for the plaintiff or complainant to have a legal or an equitable title
to or interest in the real property which is the subject matter of the action. Also, the deed, claim, encumbrance
or proceeding that is being alleged as a cloud on plaintiffs title must he shown to be in fact invalid or
inoperative despite its prima facie appearance of validity of legal efficacy.
That there is an instrument or a document which, on its face is valid and efficacious is clear in the present
case. Petitioners alleged that their title as co-owners and possessors of the disputed property is clouded by the
tax declaration, and subsequently the free patent thereto granted to spouses Santos. The more important
question to be resolved, however, is whether petitioners have appropriate title that will entitle them to avail
themselves of the remedy of quieting of title
Petitioners anchor their claim to the disputed property on their continued and open possession as co-owners
thereof. They allege that they inherited it from their father Silvino, who in turn inherited it from his father,
Leon. They maintain that after their father's death, they agreed among themselves that petitioner Lucio Robles
would be tending and cultivating it for everyone, and that their half-brother Hilario would be paying the land
taxes. They were not aware that from 1962 until 1987, the subject property had been declared in the name of
Exequiel Ballena, the Rural Bank of Antipolo, Hilario Robles, the Rural Bank of Cardona and finally to spouses
Santos. For those alleged transfers it is essential that the deed of conveyance purportedly evidencing the transfer
of ownership and possession from the heirs of Silvino to Exequiel should have been presented as best proof of
that transfer. No such document was presented, however.
Thus, Hilario mortgaged the property to the Rural Bank Cardona in his capacity as a mere co-owner thereof.
Clearly, the said transaction did not divest them of title to the property at the time of the institution of the
complaint for quieting of title.

Art. 477. The plaintiff must have legal or equitable title to, or interest in the real property w/c is the subject
matter of the action. He need not be in possession of said property.

Art. 478. There may also be an action to quiet title or to remove a cloud therefrom when the contract,
instrument or other obligation:
1. has been extinguished or
2. has terminated, or
3. has been barred by extinctive prescription.

Art. 479. The plaintiff must return to the defendants all benefits he may have received from the latter, or
reimburse him for the expenses that may have redounded to the plaintiff’s benefit.

Art. 480. The principles of the general law on the quieting of title are hereby adopted insofar as they are not in
conflict w/ this Code.

Art. 481. The procedure for quieting of title or the removal of a cloud therefrom shall be governed by such rules
of court as the SC shall promulgate.
Page 29 of 82

RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING

Art. 482. If a building, wall, column or any other construction is in danger of falling, the owner shall be obliged
to demolish it or to execute the necessary work in order to prevent it from falling.
If the proprietor does not comply w/ his obligation, the administrative authorities may order the demolition
of the structure at the expense of the owner, or take measure to insure public safety.

Art. 483. Whenever a large tree threatens to fall in such a way as to cause damage to the land or tenement of
another or to travelers over a public or private road, the owner of the tree shall be obliged to fell and remove it;
and should he not do so, it shall be done at his expense by order of the administrative authorities.

CO-OWNERSHIP

Article 484. There is co-ownership whenever the ownership of an undivided thing or right belongs to different
persons. In default of contracts, or of special provisions, co-ownership shall be governed by the provisions of
this title.

Under this article, co-ownership may exist as to rights, and is not limited to corporal things, (Samaniego vs.
Villajin, CA OG 3137)

Characteristics: (Co-ownership may also be referred as Tenancy in common)

1. more than 1 owner (plurality of subjects)
2. 1 physical unit or whole divided into ideal or fractional shares (singularity or unity of object)
3. Each fractional share is definite in amount but not physically segregated from the rest (recognition of ideal
shares)
4. As to the physical unit, each co-owner must respect the other co-owners in its common use, enjoyment and
preservation (Article 483)
5. As to the aliquot share, each co-owner holds absolute control (Article 493)
6. No juridical personality of its own
7. A co-owner is in a sense a trustee for the other co-owners – thus he may not ordinarily acquire exclusive
ownership of the property held in common, through prescription

Rules regarding ideal share:

1. Each co-owner has full ownership of his part and of his share in the fruits and benefits (Article 493);
2. He may alienate, assign, or mortgage his ideal share. (Article 493);

What governs co-ownership?

1. Contracts;
2. In default thereof:
a. special legal provisions,
b. the law on co-ownership.

Sources of co-ownership:
1. Law = party walls; party ditches; intestate succession; properties acquired by a man and a woman whose
marriage is void,
2. Contract = two persons buy a parcel of land sharing in the purchase price and agree not to divide the land
for ten years;
3. CHANCE = commixtion, confusion, hidden treasure.
4. OCCUPATION = (Punzalan vs. Boon Liat 44 Phil 320) when a wild beast is caught by several persons;
5. WILL = when two persons are named as legatees or devises of an undivided thing:

Adriano v. CA (124118; 3/27/2000)

F: while separated from his 1st wife, Gliceria, Lucio lived with Vicenta. After Gliceria died, he married Vicenta.
L & V acquired properties during their cohabitation – named under both of their names.
H: the properties belong to the 1st marriage
Petitioners' insistence that a co-ownership of properties existed between Lucio and Vicenta during their
period of cohabitation before their marriage in 1968 is without lawful basis considering that Lucio's marriage
with Gliceria was then subsisting.
The co-ownership in Article 144 of the Civil Code requires that the man and woman living together as
husband and wife without the benefit of marriage must not in any way be incapacitated to marry. Considering
that the property was acquired in 1964, or while Lucio's marriage with Glicena subsisted, such property is
presumed to be conjugal unless it be proved that it pertains exclusively to the husband or to the wife.
We cannot agree with petitioners' bare and expedient assertion that, because the title to the property was
registered in the name of both Lucio and Vicenta, she should thereby be deemed owner to half of it.
Property acquired by a man while living with a common-law wife during the subsistence of his marriage is
conjugal property, even when the property was titled in the name of the common-law wife. In such cases, a
constructive trust is deemed to have been created by operation of Article 1456 of the Civil Code over the
property which lawfully pertains to the conjugal partnership of the subsisting marriage.
Page 30 of 82

CO-OWNERSHIP
Co-ownership may arise from other causes (i.e., will or
law)
The purpose of co-ownership is for collective
enjoyment and to maintain the unity and preservation
of the thing owned in common
In co-ownership, there is no juridical personality
distinct from the members
A stipulation that a co-ownership be created for a
period of more than 10 years is void
In co-ownership, a special authority is needed for
representation among co-owners
In a co-ownership there is freedom of disposition of a
co-owner’s share
Death or incapacity of 1 of the co-owners have no
effect on the existence of a co-ownership
The distribution of profits is invariable in co-
ownership by virtue of Article 485
PARTNERSHIP
Partnerships are created only by agreement or contract
The purpose of partnership is profit
In partnership, there is a juridical personality distinct
from the members
A partnership may be created for a period of more than
10 years
In partnership, there is generally mutual representation
by the partners
In a partnership, a partner cannot transfer his rights to
3rd persons without the consent of the others
The partnership can be extinguished by the death or
incapacity of 1 of the partners
The distribution of profits is subject to stipulation in
partnerships

Rule on the shares of co-owners in the benefits and charges (Article 485):

Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall be proportional to their
respective interests. Any stipulation in a contract to the contrary shall be void.
The portions belonging to the co-owners in the co-ownership shall be presumed equal, unless the contrary is
proved.

! The share in the benefits and charges is proportional to the interest of each.
o Hence, if one co-owner owns 2/3, he shares 2/3 of the taxes;
! Contrary stipulation is void. To do so would be to run against the nature of co-ownership;
! Each co-owner shares proportionately in the accretion or alluvium of the property. This is because an
increase in area benefits all.

LIMITATIONS on co-owner's right to use the thing owned in common (Article 486)

Art. 486. Each co-owner may use the thing owned in common, provided he does so in accordance with the
purpose for which it is intended and in such a way as not to injure the interest of the co-ownership or prevent
the other co-owners from using it according to their rights. The purpose of the co-ownership may be changed by
agreement, express or implied.

1. Can be used only according to the purpose for which it was intended;
a. To determine the purpose for which the property is intended, the agreement of the co-owners (express or
implied) should govern.
b. In default of any agreement: a) that to which the thing is ordinarily adapted according to its nature; or b)
the use to which it has been previously devoted.
c. Thus, if the co-owners of a vessel agree that it should be used as a warehouse or storage place for grain,
one of the co-owners cannot order the grain removed and use the vessel for maritime transportation.
d. Mere tolerance on the part of the co-owners cannot legalize the change in the use of the thing front that
intended by the co-owners.
e. Prescription cannot be invoked to establish a right to such different use, because mere tolerance cannot
be the basis of prescription.

2. The right to use must not prejudice the interest of the co-ownership;
a. A co-owner cannot devote community property to his exclusive use to the prejudice of the co-ownership.
b. Thus, where the co-owners have agreed to lease a building owned in common, a co-owner cannot retain
it for his use without paying the proper rent.

3. The right to use must not be exercised to prevent the others from making use thereof according to their own
right.
a. The right of enjoyment by each co-owner is limited by a similar right of others.
b. Hence, if the thing is a dwelling house, all the co-owners may live therein with their respective families,
to the extent possible.
c. But if one co-owner alone occupies the entire house without opposition of the others, and there is no
agreement to lease it, the other co-owners cannot demand the payment of rents. They can either
exercise an equal right to live in the house, or agree to lease it; if they fail to do so, they must bear the
consequences. It would be unjust to require the co-owner to pay rents after the other co-owners by their
silence have allowed him to use the property.

Art. 487. Any one of the co-owners may bring an action in ejectment.
Page 31 of 82

Art. 488. Each co-owner shall have a right to compel the other co-owners to contribute to the expenses of
preservation of the thing or right owned in common and to the taxes.
Any one of the latter may exempt himself from this obligation by renouncing so much of his undivided
interest as may be equivalent to his share of the expenses and taxes. (refers to existing obligations or those
already incurred)
No such waiver shall be made if it is prejudicial to the co-ownership. (refers to future expenses)

Art. 489. Repairs for preservation may be made at the will of one of the co-owners, but he must, if practicable,
first notify his co-owners of the necessity for such repairs. Expenses to improve or embellish the thing shall be
decided upon by a majority as determined in article 492.

No. of co-owners who must consent

Repairs, ejectment action One (Art 489)
Alterations or act of OWNERSHIP All (Art 491)
All others, like useful improvements, luxurious Financial majority (not numerical) [Art 492, 489]
embellishments, administration, better enjoyment

Art. 490. Whenever the different stories of a house belong to different owners, if the titles of ownership do not
specify the terms under which they should contribute to the necessary expenses and there exists no agreement
on the subject, the following rules shall be observed: (PERPENDICULAR CO-OWNERSHIP)
(1) The main and party walls, the roof and the other things used in common, shall be preserved at the
expense of all the owners in proportion to the value of the story belonging to each;
(2) Each owner shall bear the cost of maintaining the floor of his story; the floor of the entrance, front door,
common yard and sanitary works common to all, shall be maintained at the expense of all the owners
pro rata;
(3) The stairs from the entrance to the first story shall be maintained at the expense of all the owners pro
rata, with the exception of the owner of the ground floor; the stairs from the first to the second story
shall be preserved at the expense of all, except the owner of the ground floor and the owner of the first
story; and so on successively.

Condominium Law (RA 4726 as amended by R.A. No. 7899)

A Condominium is an interest in real property consisting of
1. a separate interests in a unit in a residential, industrial or commercial building or in an industrial estate and
2. an undivided interests in common, directly and indirectly, in the land, or the appurtenant interest of their
respective units in the common areas.

! A condominium is actually a corporation wherein 1 unit is equal to 1 share

! Aliens can own units in a condominium up to 40%: this is an exception to the Constitutional prohibition
that aliens cannot own property in the RP
! Read the case of Sunset View Condominium vs. Campos where the SC held that a buyer can only be
considered a shareholder in the condominium when he pays the purchase price in full

Article 491. None of the co-owners shall without the consent of the others, make alterations in the thing owned
in common, even though benefits for all would result there from. However, if the withholding of the consent by
one or more of the co-owners is clearly prejudicial to the common interest, the courts may afford adequate
relief.

Alteration is a change:
1. which is more or less permanent.
2. which changes the use of the thing; and
3. which prejudices the condition of the thing or its enjoyment by the others.

! It is also a change (not limited to physical) of state of the thing or the withdrawal of the use from that
intended.
! Alteration is an act of ownership
! Example: Sale; donation; or mortgage of the property.

In determining alterations, it is sometimes necessary to consider the nature of the thing itself. Thus:
! when a thing does not require any modification for its enjoyment, whatever modifications or change that is
made will be considered an alteration.
! But when a thing in its nature requires changes, such as industry or business, in its exploitation, such
modifications and variations should be considered as falling under acts of administration.

! Article 491 requires unanimity of consent, whether tacit or express.

Page 32 of 82

Effect of tacit consent - although the co-owner who is deemed to have tacitly consented to the alteration cannot
ask for the demolition, neither can he be held liable to answer for any part of the expenses incurred therein,
because the obligation to pay such expenses cannot be deemed to be the subject of his tacit consent.

Art. 492. For the administration and better enjoyment of the thing owned in common, the resolutions of the
majority of the co-owners shall be binding. (FINANCIAL MAJORITY)
There shall be no majority unless the resolution is approved by the co-owners who represent the controlling
interest in the object of the co-ownership.
Should there be no majority, or should the resolution of the majority be seriously prejudicial to those
interested in the property owned in common, the court, at the instance of an interested party, shall order such
measures as it may deem proper, including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to one of the co-owners, and the remainder is owned in
common, the preceding provision shall apply only to the part owned in common.

Limitations on the Right of Financial Majority

1. (GR) Although they can approve resolutions for administration and better enjoyment, still, before a decision
is made, there should first be notice to the minority so that they shall be heard
2. (EX) The majority would be justified in proceeding only when the urgency of the case and the difficulty of
meeting w/ them render impracticable the giving of said notice
3. Such minority may appeal to the court against the decision of the majority when:
a. there is no real majority
b. the resolution is seriously prejudicial to the rights of the individual co-owner
c. the majority refuses to correct an abuse of administration
d. the minority is made the victim of fraud
e. an alteration is agreed upon
f. the acts are seriously prejudicial to the minority such as:
 when loans are made w/o sufficient security
 when an encumbrance or disposition is made since this would be an alteration
 when an abusive or inefficient administrator is not replaced

Legal Redemption:
Art 1620: A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-
owners or of any of them, are sold to a third person. If the price of the alienation is grossly excessive, the
redemptioner shall pay only a reasonable one.
Should two or more co-owners desire to exercise the right of redemption, they may only do so in proportion
to the share they may respectively have in the thing owned common

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except within thirty days from
the notice in writing by the prospective vendor, or by the vendor, as the case may be. The deed of sale shall not
be recorded in the Registry of Property, unless accompanied by an affidavit of the vendor that he has given
written notice thereof to all possible redemptioners.
The right of redemption of co-owners excludes that of adjoining owners.

Without the notice, the period of redemption does not run:

Cabrera v. Villanueva (L-75069; 4/15/1988)
F: Cabrera (co-owner) argued that she never received the notice thus she could still redeem the property.
Cabrera and Villanueva (new co-owner) were neighbors. Villanueva’s share in the rentals, less the tax is
handled by Cabrera’s aunt. Joint affidavit submitted by sellers (old co-owners) to Register of Deeds states that
Cabrera was already informed.
H: Cabrera cannot redeem since the joint affidavit proves there was written notice
For the legal and effective exercise of the right of legal redemption one must make the offer within the period
set down in Art. 1623. In other words, if no claim or offer is made within said period, no action will be allowed
to enforce the right of redemption. It is necessary however to determine first if and when the written notice of
sale was duly served by the vendors to their co-owner.
Notwithstanding the actual knowledge of a co-owner, he or she is still entitled to a written notice from the
vendor-co-owner in order to remove all uncertainty as to the sale, its terms and validity and to quiet any doubts
that the alienation is not definitive.
The law however does not require a specific form of written notice to the redemptioner. A reading of the
Joint Affidavit, executed by the vendors Feliciano and Antonio Oropesa, affirms the fact that a written notice of
the sale was really sent by them to their Cabrera.

Spouses Doromal v. CA (L-36083; 9/5/1975)

F: when letters were sent to the co-owner, the sale was not yet final. The letters merely stated that the other co-
owners were willing to sell the property to Doromal.
H: said letters are not considered as notice under 1623
For purposes of the co-owner's right of redemption granted by Article 1620 of the Civil Code, the notice in
writing which Article 1623 requires to be made to the other co-owners and from receipt of which the 30-day
period to redeem should be counted is a notice not only of a perfected sale but of the actual execution and
delivery of the deed of sale.
Page 33 of 82

This is implied from the latter portion of Article 1623 which requires that before a register of deeds can
record a sale by a co-owner, there must be presented to him, an affidavit to the effect that the notice of the sale
had been sent in writing to the other co-owners.
Article 1619 of the Civil Code bestows unto a co-owner the right to redeem and "to be subrogated under the
same terms and conditions stipulated in the contract", and to avoid any controversy as to the terms and
conditions under which the right to redeem may be exercised, it is best that the period therefore should not be
deemed to have commenced unless the notice of the disposition is made after the formal deed of disposal has
been duly executed.
It is immaterial when she might have actually come to know about said deed, it appearing she has never
been shown a copy thereof through a written communication by either any of the petitioners-purchasers or any
of her co-owners-vendees.

Exception: vendor immediately took possession and no co-owners questioned:

Pilapil v. CA (55134; 12/4/1995)
F: Heir sold their undivided share to Pilapil. Upon partition, Pilapil occupied the lot
H: no need to give notice
On the matter of whether the rights of co-owners had been transgressed by the sale to the petitioners, the trial
court erroneously ruled that there should be proof of compliance with Article 1623 of the Civil Code requiring
the vendor of the property to give a written notice of sale to the other co-owners. Said provision of law had been
rendered inutile by the fact that petitioners took possession of the property immediately alter the execution of
the deed of sale in their favor and continue to possess the same. Since the fact of possession by the petitioners
had not been questioned by any of the co-owners, the latter may be deemed to have knowledge of the sale.

Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and benefits pertaining
thereto, and he may therefore alienate, assign or mortgage it, and even substitute another person in its
enjoyment, except when personal rights are involved. But the effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership.

(impt) Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at
any time the partition of the thing owned in common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time, not exceeding ten years,
shall be valid. This term may be extended by a new agreement.
A donor or testator may prohibit partition for a period which shall not exceed twenty years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the co-ownership.

General Rule: No co-owner shall be obliged to remain in the co-ownership. Each co-owner may demand at any
time the partition of the thing owned in common, insofar as his share is concerned.

Reasons:
1. To avoid conflicts in management;
2. The law discourages co-ownership;
3. The disposition or enjoyment of the thing owned in common is subject to the desire of all co-owners;

Exceptions:
When there exists a PROHIBITION to partition because:
1. of the existence of an AGREEMENT between the parties;
a. not more than 10 years, extendible by a new agreement after the termination of the original period;
hence, no automatic renewal, otherwise, the intention of the law would be defeated.
b. If more than 10 years, void as to the excess;
c. If prohibition is perpetual, valid only up to 10 years;
d. If agreement subject to a resolutory condition, the agreement ends upon fulfillment of the condition
provided it does not exceed 10 years
2. the LAW does not allow partition; (conjugal partnership as a general rule),
3. of the WILL of the donor or testator; (the prohibition may be up to 20 years),
4. physical partition would render the property unserviceable (i.e., automobile, partition shall proceed in
accordance with the rules set forth under Article 498).
5. the legal NATURE of the property does not allow partition (party wall)

General rule: Prescription against a co-owner does not lie.

Page 34 of 82

Exception:
1. When a co-owner gives notice to the other co-owners that he is repudiating the co-ownership and that he
is claiming ownership of the entire property:
2. The requirement of continuous, open, public, adverse possession for the period of time required must be
met;

Requisites for title to prescribe in favor of a co-owner:

1. the co-owner has performed unequivocal acts of repudiation amounting to an ouster of the other co-
owners:
2. such positive acts of repudiation have been made known to the other co-owners;
3. the evidence thereof is clear and convincing.

Robles v. CA
Hilario did not have possession of the subject property; neither did he exclude petitioners from the use and
enjoyment thereof, as they have indisputably shared in its fruits.
Likewise, his act of entering into the mortgage contract with the bank cannot be construed to be a
repudiation of the co-ownership. As an absolute owner of his undivided interest in the land, he had the right to
alienate his share, as he in fact did.
Neither should his payment of land taxes in his name, as agreed upon by the co owners, be construed as
repudiation of the co-ownership. The assertion that the declaration of the co-ownership was tantamount to
repudiation was belied by the continued occupation and possession of the disputed property by the petitions s as
owners.

! Acts which may be considered adverse insofar as strangers are concerned, may not be considered adverse
insofar as co-owners are concerned.
! In other words, it is harder for a co-owner to acquire properties compared to that of strangers. Hence, mere
actual possession by one co-owner will not give rise to the inference that the possession was adverse.
This is because a co-owner is after all entitled to possession of the property. There must indeed be a
definite repudiation and the possession is to the exclusion of other co-owners.
! The period of prescription commences from the date of the repudiation.

May an action for partition prescribe? NO!

AGUILAR VS. COURT OF APPEALS (227 SCRA 472)

F: 2 brothers bought house for their father. After their father’s death, one does not want to sell the land and
partition the
H: rent also starts from the time of the decision
Article 494 of the Civil Code provides that no co-owner shall be obliged to remain in the co-ownership, and
that each co-owner may demand at any time partition of the thing owned in common in so far as his share is
concerned. Corollary to this rule, Article 498 of the Code states that whenever the thing is essentially indivisible
and the co-owners cannot agree that it be allotted to one of them who shall indemnity the others, it shall be sold
and its proceeds accordingly distributed.
However, being a co-owner, respondent has the right to use the house and lot without paying any
compensation to the petitioner, as he may use the property owned in common so long as it is in accordance with
the purpose for which it is intended and in a manner not injurious to the interest of the other co-owners. Each
co-owner of property held pro indiviso exercises his rights over the whole property and may use and enjoy the
same with no other limitation than that he shall not injure the interest of his co-owners, the reason being that
until a division is made, the respective share of each cannot be determined and every co-owner exercises,
together with his co-participants joint-ownership over the pro indiviso properly, in addition to his use and
enjoyment of the same.
In fairness, respondent should pay a rental of P 1,200.00 per month, with legal interest from the time the
trial court ordered him to vacate, for the use and enjoyment of the other half of property appertaining to
petitioner.
When petitioner filed an action to compel the sale of the property and the trial court granted the petition and
ordered the ejectment of respondent, the co-ownership was deemed terminated and the right to enjoy the
possession jointly also ceased. Thereafter, the continued stay of respondent and his family in the house
prejudiced the interest of petitioner as the property should have been sold and the proceeds divided equally
between them. To this extent and from then on, respondent should be held liable for monthly rentals until he
and his family vacate. (See: Fabian vs. Fabian, 22 SCRA 520. Miguel vs. Catalino, 26 SCRA 274, Villanueva
vs. Florendo, 139 SCRA 329]

Tuason vs. Tuason

The co-owners of a huge parcel of land agreed to improve the property by filling it and constructing roads
thereon and then sub-dividing it into small lots for sale. Subsequently, one of the co-owners asked the court for
partition alleging that Article 494 was violated.
The SC said that the contract far from violating the legal provision that forbids a co-owner from being
obliged to remain a party to the community precisely has for its purpose and object the dissolution of the co-
ownership and of the community by selling the parcel held in common and dividing the proceeds of the sale
among the co-owners. The obligation imposed in the contract to preserve the co-ownership until all the lots
shall have been sold, is a mere incident to the main object of dissolving the co-ownership. By virtue of the
document, the parties thereto practically and substantially entered into a contract of partnership as the best and
Page 35 of 82

most expedient means of eventually dissolving the co-ownership, and the life of said partnership to end when
the object of its creation shall have been attained.

Art. 495. Notwithstanding the provisions of Art. 494, the co-owners cannot demand a physical division of the
thing owned in common, when to do so would render it unserviceable for the use for w/c it is intended.
But the co-ownership may be terminated in accordance w/ Art. 498.

Art. 496. Partition may be made by agreement between the parties or by judicial proceedings. Partition shall be
governed by the Rules of Court insofar as they are consistent w/ this Code.

Art. 497. The creditors or assignees of the co-owners may take part in the division of the thing owned in
common and object to its being affected w/o their concurrence.
But they cannot impugn any partition already executed, unless there has been fraud, or in case it was made
notwithstanding a formal opposition presented to prevent it, w/o prejudice to the right if the debtor or assignor
to maintain its validity.

Art. 498. Whenever the thing is essentially indivisible and the co-owners cannot agree that it be allotted to one
of them who shall indemnify the others, it shall be sold and its proceeds distributed.

Art. 499. The partition of a thing owned in common shall not prejudice 3 rd persons, who shall retain the rights
of mortgage, servitude, or any other real rights belonging to them before the division was made.
Personal rights pertaining to a 3rd persons against the co-ownership shall also remain in force,
notwithstanding the partition.

Art. 500. Upon partition, there shall be a mutual accounting for benefits received and reimbursements for
expenses made. Likewise, each co-owner shall pay for damages caused by reason of his negligence or fraud.

Art. 501. Every co-owner shall, after partition, be liable for defects of title and quality of the portion assigned to
each of the other co-owners.

Law on Waters

1. PD 1067: The Water Code = promulgated on December 31, 1976

2. Before PD 1067: the governing laws on waters are:
i. Civil Code: Art. 502-518
ii. Supplementary laws: Special Law of Waters of August 3, 19866 and Irrigation Law
3. Clean Water Act = tackles pollution, rather than ownership

Art. 4 of PD 1067: Waters, as used in this Code, refers to water under the grounds, water above the ground,
water in the atmosphere and the waters of the sea within the territorial jurisdiction of the Philippines

Sec 2 Art XII of the Constitution: All lands of the public domain, waters, minerals, coal, petroleum, and other
mineral oils, all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State. With the exception of agricultural lands, all other natural resources
shall not be alienated. The exploration, development, and utilization of natural resources shall be under the full
control and supervision of the State. The State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital is owned by such citizens. Such agreements may be for a
period not exceeding twenty-five years, renewable for not more than twenty-five years, and under such terms
and conditions as may be provided by law. In cases of water rights for irrigation, water supply, fisheries, or
industrial uses other than the development of water power, beneficial use may be the measure and limit of the
grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.
The Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well as
cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes, bays, and
lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical of
financial assistance for large-scale exploration, development, and utilization of minerals, petroleum, and other
mineral oils according to the general terms and conditions provided by law, based on real contributions to the
economic growth and general welfare of the country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.
The President shall notify the Congress of every contract entered into in accordance with this provision,
within thirty days from its execution.

Qualified to apply:
Art. 15 of PD 1067: Only citizens of the Philippines, of legal age, as well as juridical persons, who are duly
qualified by law to exploit and develop water resources, may apply for water permits. (only Filipino citizens
and corporations)

Term of Permit:
Page 36 of 82

Art. 28 of PD 1067: Water permits shall continue to be valid as long as water is beneficially used; however, it
maybe suspended on the grounds of non-compliance with approved plans and specifications or schedules of
water distribution; use of water for a purpose other than that for which it was granted; non-payment of water
charges; wastage; failure to keep records of water diversion, when required; and violation of any term or
condition of any permit or rules and regulations promulgated by the Council.
Temporary permits may be issued for the appropriation and use of water for short periods under special
circumstances. (Maximum period is the beneficial used of water)

Office in charge:
National Water Resources Board (NWRB) = formerly Nat’l Water Resources Council
~ created by PD 424 in March 28, 1974
~ conferred with regulatory and executory powers, such as to coordinate and integrate water resources
development activities of the country as well as to determine, adjudicate and grant water rights, for which
purpose it may issue needful rules and regulations
~ also functions as advisory to the NEDA, recommending the adoption of general policies and guidelines,
including plans and programs for water resources development

BF Northwest Homeowners Assn. vs. IAC [G.R. No. L-72370. May 29, 1987.]
F: NWRC approved water rates allowing BF Homes, Inc. to charge higher rates to its customers. Petitioner
appealed NWRC decision to RTC which dismissed the appeal saying it has no jurisdiction
H: RTC has jurisdiction since NWRC is ranked with “inferior courts”
The National Water Resources Council (NWRC) was was vested with the general power to coordinate and
integrate water resources development, and among others, to formulate and promulgate rules and regulations for
the exploitation and optimum utilization of water resources, including the imposition on water appropriators of
such fees or charges as may be deemed necessary by the Council for water resources development.
Plainly, the NWRC is ranked with "inferior courts," – MTC, MTCC, etc. Explicit as well is the proviso that
NWRC decisions on water rights controversies are appealable to the Court of First Instance (now RTC)
The logical conclusion, therefore, is that jurisdiction over actions for annulment of NWRC decisions lies
with the Regional Trial Courts, particularly, when we take note of the fact that the appellate jurisdiction of the
Regional Trial Court over NWRC decisions covers such broad and all embracing grounds as grave abuse of
discretion, questions of law, and questions of fact and law (Art. 89, P.D. No. 1067). This conclusion is also in
keeping with the Judiciary Reorganization Act of 1980, which vests Regional Trial Courts with original
jurisdiction to issue writs of certiorari, prohibition, mandamus, etc. (Sec. 21 [1], B.P. Blg. 129) relating to acts
or omissions of an inferior Court (Sec. 4, Rule 65, Rules of Court).

Abe-Abe v. Manta [G.R. No. L-4827. May 31, 1979.]

F: Upstream farmers want to stop Atty. Romualdo from using the water of the creeks at night to irrigate his
two-hectare rice land located downstream. Farmers filed a case before the courts
H: lower court has no jurisdiction; NWRC has
We hold that the petition is devoid of merit. It is incontestable that the petitioners' immediate recourse is to
ventilate their grievance with the National Water Resources Council which, as already noted is the
administrative agency exclusively vested with original jurisdiction to settle water rights disputes under the
Water Code and under PD No. 424.
That jurisdiction of the Council under section 2(b) of Presidential Decree No. 424 is reaffirmed in section 88
of the Water Code and in section 3(d) thereof which provides that "the utilization, exploitation, development,
conservation and protection of water resources shall be subject to the control and regulation of the government
through" the Council.

Sec 2 of Art XII of the Const:

~ no specific class of waters, only specific uses
~ irrigation, supply, fisheries, power, industrial uses

BUT Art. 10 of PD 1067 provides for uses of waters:

1.) domestic purposes = utilization of water for drinking, washing, bathing, cooking or other household
needs, home gardens, and watering of lawns or domestic animals.
2.) municipal purposes = utilization of water for supplying the water requirements of the community.
a. Use of water for irrigation is the utilization of water for producing agricultural crops.
3.) power generation = utilization of water for producing electrical or mechanical power.
4.) fisheries = utilization of water for the propagation and culture of fish as a commercial enterprise.
5.) livestock raising = utilization of water for large herds or flocks of animals raised as a commercial
enterprise.
6.) industrial purposes = utilization of water in factories, industrial plants and mines, including the use of
water as an ingredient of a finished product.
7.) recreational purposes = utilization of water for swimming pools, bath houses, boating, water skiing, golf
courses and other similar facilities in resorts and other places of recreation.

Is Water immovable or movable property?

~ Water is immovable because in its natural state it is regarded as forming part of the land
~ Water is also movable because it is part of the forces of nature which is brought under the control of
science
Page 37 of 82

US vs. Tambunting [G.R. No. 16513. January 18, 1921.]

F: Tambunting used gas without the knowledge of the gas company. He was charged with theft
H: he is guilty of theft since gas is considered as personal property
The clandestine subtraction and appropriation of gas, without the consent of the owner constitutes theft.
Electric energy could be the subject of theft. There is nothing in the nature of gas used for illumination
purposes which renders it incapable of being feloniously taken and carried away. It is a valuable article of
merchandise, bought and sold like other personal property, susceptible of being severed from a mass or larger
quantity and of being transported from place to place. Likewise, water which is confined in pipes and
electricity which is conveyed by wires are subjects of larceny.

~ Art 502 of the CC: enumerates what belongs to the State. This is the same with Art 5 of PD 1067.
~ Art 503 of the CC: water subject to private ownership. This was not carried over in PD 1067
~ Implication: water belongs to the state, whether found in public or private land. Water cannot be of private
ownership. Only the use of such water, not ownership is granted in administrative concession.
~ So, you cannot drill a well without prior permit

Priority over use of waters:

Art. 95 of PD 1067: Within two (2) years from the promulgation of this Code, all claims for a right to use water
existing on or before December 31, 1974 shall be registered with the Council which shall confirm said rights in
accordance with the provisions of this Code, and shall set their respective priorities. casia
When priority in time of appropriation from a certain source of supply cannot be determined, the order of
preference in the use of the waters shall be as follows:
a. Domestic and municipal use
b. Irrigation
c. Power generation
d. Fisheries
e. Livestock raising
f. Industrial use, and
g. Other uses.
Any claim not registered within said period shall be considered waived and the use of the water deemed
abandoned, and the water shall thereupon be available for disposition as unappropriated waters in accordance
with the provisions of this Code.

~ This comes into play if there are two conflicting rights

~ constitution does not establish a rule of priority, it only mentions the uses for which the water right is
granted
~ CC; also no provision on use; only provided for the manner on how use of water may be acquired
~ PD 1067 repealed Civil Code

POSSESSION

POSSESSION, meaning of:

Article 523: Possession is the holding of a thing or the enjoyment of a right.

What is the relationship between ownership and possession?

Ans: As a general rule, possession is an element of ownership. However, this is not absolute; there are
circumstances whereby the owner of the thing does not possess the thing.

Essential Requisites of Possession: (Must concur)

1. Holding, maybe actual or constructive, the body of thing or the corpus. (There is occupancy, taking or
apprehension.)
2. Intent to hold it, the animus or desire.
3. The possession must be by virtue of one's own right. Hence, an .agent who holds is not truly in possession;
it is the principal who possesses thru the agent.

Classes of possession:
1. Possession is one's own name or possession in the name of another (Article 524);
2. Possession in the concept of an owner or possession in the concept of a holder (Article 525),
3. Possession in good faith or possession in bad faith (Article 526)

Degrees of Possession
1. The mere holding of a thing without the title, or the holding of a thing in violation of the right of the
owner.
a. Example: A thief possesses a thing without title and in violation of the right of the owner
2. Possession with juridical title, but not that of ownership. Example:
a. Contract of lease
b. Usufruct
c. the possession by the tenant;
d. possession by the depository, by the bailee, by the lessee.
e. All these have juridical titles but they are not the owners.
Page 38 of 82

3. Real Possessory Right = Possession with just title not sufficient to possess ownership.
a. Example: A in good faith buys an automobile from B who delivers the same to A and who merely
pretended to be the owner thereof
4. Possession with a title of dominium. This is possession arising from ownership.

Art. 524. Possession may be exercised:

1. in one's own name or
2. in that of another.

The concepts of possession

Article 525: The possession of things or rights may be had in one of two concepts: either in the concept of
owner, or in that of the holder of the thing or right to keep or enjoy it, the ownership pertaining to another
person

1. In the concept of an owner:

It is the possession by the owner himself or by a person who CLAIMS to be and ACTS as the owner,
whether he is in good faith or in bad faith. He possesses the thing in such a way that he makes people believe or
see that he is the owner and recognizes no title or ownership in another

2. In the concept of holder:

Here the possessor recognizes another to be the owner.
Examples:
1. That of a tenant;
2. That of the usufructuary;
3. That of the depositary;
4. That of a bailee in commodatum

MAGULCOT-AW vs. MACLUCOT (329 SCRA 78)

F: lessees stopped paying rent and claimed ownership over the land
H: The payments of rentals by the respondents reveal that they are mere lessees.
As such, the possession of respondents over the lot no, 1639-D is that of a holder and not in the concept of
an owner. One who possesses as a mere holder acknowledges in another a superior right which he believes to be
ownership, whether his belief is right or wrong. Since the possession of respondents were found to be that of
lessees of petitioners, it goes without saying that the latter were not in possession of Lot No. 1639-D in the
concept of an owner from 1952 up to the time the present action was instituted.

Note: Possessor who is merely tolerated by owner is a possessor in the concept of holder and such possession
does not hinder a valid transfer of ownership by the owner thru its sale to another.

JOSE M. T. GARCIA vs. COURT of APPEALS, (113140, August 10, 1999)

F: Atty Garcia and his wife sold their land to their daughter and her husband. Young couple mortgaged the land
to PBCom and it was subsequently foreclosed. Brother Jose now claims that sale was not valid since at the time
it was sold, he was in possession of the land
H: brother has no right over the property
For in his complaint, plaintiff-appellee alleged that he entered into possession of the disputed property only
upon the demise of his mother, from whom he alleges to have inherited it but who was not the registered owner
of the property, that is, on October 31, 1980 (Certificate of Death, p 17, Records), by which admission he is
bound. Since the execution of the deed of sale by Atty. Pedro V. Garcia in favor of the Magpayos took place
earlier or on August I, 1980, then contrary to his claim, plaintiff-appellee was not in possession of the property
at the time of the execution of said public instrument.

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
confers certain rights to the owner, one of which is
the right to dispose of the thing by way of sale.
Possession
holding of a thing or the enjoyment of a right
1. possession in the concept of an owner = A
possessor in the concept of an owner himself
or one who claims to be so
2. possession of a holder = acknowledges in
another a superior right which he believes to
be ownership, whether his belief be right or
wrong
Page 39 of 82

Atty. Pedro Garcia and his wife Remedios exercised their right to dispose of what they owned when they
sold the subject property to the Magpayo spouses.
The records show that petitioner occupied the property not in the concept of an owner for his stay was
merely tolerated by his parents. An owner's act of allowing another to occupy his house, rent-free does not
create a permanent and indefeasible right of possession in the latter's favor. Consequently, it is of no moment
that petitioner was in possession of the property at the time of the sale to the Magpayo spouses. It was not a
hindrance to a valid transfer of ownership.
On the other hand, petitioner's subsequent claim of ownership as successor to his mother's share in the
conjugal asset belied by the fact that the property was not included in the inventory of the estate submitted by
his father to the intestate court. This buttresses the ruling that indeed the property was no longer considered
owned by petitioner’s parents.
The Court likewise upheld the Court of Appeals’ holding that "the mortgage to PBCom by the Magpayo
spouses is valid notwithstanding that the Transfer Certificate of Title over the property was issued to them after
the mortgage contract was entered into. Registration does not confer ownership, it is merely evidence of such
ownership over a particular property. The deed of sale operates of a formal or symbolic delivery of the property
sold and authorizes the buyer to use the document as proof of ownership. All said, the Magpayo spouses were
already the owners when they mortgaged the property to PBCom."

Note: There can be no acquisitive prescription of land if the possession is in the concept of holder.

MANGAHAS vs. CA (G.R. No. 95815, March 10, 1999]

F: Mangahas’ possession was tolerated by Rodil who possessed the land in 1955. Rodil subsequently sold the
land to Cayme and Mangahas was still allowed to use the land. When Cayme now wants Mangahas out, he
refused to leave – saying he has acquired the land thru prescription
H: The defendant-appellant’s grantor or predecessor-in-interest (Severo Rodil) took possession of the property,
subject matter of the litigation, on April 1955. Since the complaint in the case at bar was filed on February 25,
1985, the requirement of at least thirty years continuous possession has not been complied with even if We were
to attack Rodil’s period of possession ..."

POSSESSION IN GOOD FAITH AND POSSESSION IN BAD FAITH:

Article 526: He is deemed a possessor in good faith who is not aware that there exists in his title or mode of
acquisition any flaw which validates it.
He is deemed a possessor in bad faith who possesses in any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may be the basis of good faith. (exception to Art 3
NCC)

AWARENESS of any FLAW is question of knowledge

~ It he is not aware - GOOD FAITH. There is always a presumption that every possessor is a possessor in
good faith. (Article 527).
~ If he is aware -- BAD FAITH. This is purely personal to the possessor. It may not necessarily be
transmitted to the heir.

Art. 527. Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests
the burden of proof.

Note:
Transferee of an unregistered parcel of land for value from a buyer and who took immediate possession
thereof has the benefit of good faith in his favor. Ordinary acquisitive prescription of 10 years is applicable.

MARCELO vs. CA [131803, April 14, 1999]

F: Marcelo asserts that he only sold Riceland to Cruz but the extra-judicial settlement with Sale executed by his
widow included the pasture land. Cruz sold the land to Flores who has been possessing it for 14 years. Did
Flores acquire ownership over the land by virtue of prescription?
H: Acquisitive prescription is a mode of acquiring ownership by a possessor through the requisite lapse of time.
In order to ripen into ownership, possession must be in the concept of an owner, public, peaceful and
uninterrupted.
Thus mere possession with a juridical title, such as, to exemplify, by a usufructuary, a trustee, a lessee, an
agent for a pledgee, not being in the concept of an owner, cannot ripen into ownership by acquisitive
prescription, unless the juridical relation is first expressly repudiated and such repudiation has been
communicated to the other party.
Acts of possessory character executed due to license or by mere tolerance of the owner would likewise be
inadequate.
Possession, to constitute the foundation of a prescriptive right, must be in concepto de dueno, or, to use the
common law equivalent of the term, that possession should be adverse; if not, such possessory acts, no matter
how long, do not start the running of the period of prescription.
Acquisitive prescription of dominion and other real rights may be ordinary or extraordinary.
1. Ordinary acquisitive prescription requires possession of things in good faith and with just title for the time
fixed by law;
2. without good faith and just title, acquisitive prescription can only be extraordinary in character.
3. As regards real or immovable property, Article 1134 of the Civil Code provides: “Ownership and other real
rights over immovable property are acquired by ordinary prescription through possession of ten years.”
Page 40 of 82

Ordinary acquisitive prescription demands, as aforesaid, that the possession be "in good faith and with just
title” The good faith of the possessor consists in the reasonable belief that the person from whom the thing is
received has been the owner thereof and could thereby transmit that ownership. There is, upon the other hand,
just title when the adverse claimant come into possession of the property through any of the modes recognized
by law for the acquisition of ownership or other real rights, but that the grantor is neither the owner nor in a
position to transmit the right.

A party’s mere refusal to believe that a defect exists of his willful closing of his eyes to the possibility of the
existence of a defect in his vendor's title will not make him an innocent purchaser for value if it afterwards
develop that the title was in fact defective.
Hence, if circumstances exist that require a prudent man to investigate; he will be in bad faith if he does not
investigate (Leung Lee vs. Strong 37 Phil 464: Republic vs. CA, 102 SCRA 331)
If there is no flaw, the article does not apply.

REPUBLIC VS. DE GUZMAN (326 SCRA 267)

F: De Guzman sold the land to his married daughter (spouses Rivera) who mortgaged it with Hoechst. De
Guzman was not in possession of the land. Ty, on the other hand, has possessed the land since 1963
H: daughter was not in good faith
Spouses Rivera are not purchasers for value. They are related by consanguinity and affinity to Enrique de
Guzman and knew that de Guzman was not in possession of the land. In fact, Rio Rivera testified that his father-
in-law was not in possession of the lot in question. Carmen Ty was in possession of the lot since 1963 and paid
the real estate taxes thereon.
"The burden of proving the status of purchaser in good faith and for value lies upon him who asserts that
status in discharging the burden, it is not enough to invoke the ordinary presumption of good faith.”
“The rule is settled that a buyer of real property where the property is in possession of persons other than the
seller must be wary and should investigate the rights of those in possession. Otherwise, without such inquiry,
the buyer can hardly be regarded as buyer in good faith.”

Uy v. CA (107439; 7/20/1995)
F: Catador offered to sell his 4,167 sq. m. land to Sauler who paid P45T down. Catador mortgaged said land to
SIHI so Sauler renegotiated and opted to buy only 555 sq. m. – but separate title cannot be given since title was
with SIHI. SIHI foreclosed on the entire land, UY bought the land. Sauler argues that as a co-owner, she has the
right of redemption. Uy argues that as an innocent purchaser, she has a right over the entire lot.
H: Sauler is not a co-owner since there is no “indivisible thing”; Uy is not innocent purchaser
Uy cannot pretend to be an innocent purchaser for value since she is fully aware of Sauler’s possession.
Uy’s parents own the adjacent lot and Catador has informed Uy’s father of the sale.
Neither can SIHI, petitioner's predecessor-in-interest, claim to be an innocent mortgagee.
Sunshine v. IAC: The general rule is that a mortgagee "is under no obligation to look beyond the
certificate and investigate the title of the mortgagor appearing on the face of the certificate," Nevertheless, we
have to deviate from the general rule because of the failure of the petitioner in this case to take the necessary
precautions to ascertain if there was any flaw in the title of the Nolascos and to examine the condition of the
property they sought to mortgage. The petitioner is an .investment and financing corporation. We presume it is
experienced in its business. Ascertainment of the status and condition of properties offered to it as security for
the loans it extends must be a standard and indispensable part of its operations. Surely, it cannot simply rely on
an examination of a Torrens certificate to determine what the subject property looks like as its condition is not
apparent in the document. The land might be in a depressed area. There might be squatters on it. It might be
easily inundated. It might be an interior lot, without convenient access. These and other similar factors
determine the value of the property and so should be of practical concern to the petitioner.

The following may be the basis of good faith:

1. Error in the application of the law, in legal solutions that arise from such application (here the error is not
gross and therefore excusable);
2. Error in the appreciation of the legal consequences of certain acts;
3. Errors in the interpretation of doubtful provisions or doctrines; (see: Kasilag vs. Roque, 67 Phil. 217).

Art. 528. Possession acquired in good faith does not lose this character except in the case and from the moment
facts exist which show that the possessor is not unaware that he possesses the thing improperly or wrongfully.

Art. 529. It is presumed that possession continues to be enjoyed in the same character in which it was acquired,
until the contrary is proved.

Presumptions that may arise from possession:

1. Ownership: (Art 433)
a. One who is actually in possession of a thing under claim of ownership is presumed to be the owner. One
who alleges that such possessor is not the true owner has the burden of proof to prove his claim.
(Disputable presumption)
2. GOOD FAITH: (Art 527)
a. Good faith is always presumed, and upon him who alleges bad faith on the part of the possessor rests the
burden of proof.
3. Continuity of Presumption of Good Faith: (Art 529)
Page 41 of 82

a. If we know that he acquired the thing in good faith, then it is presumed that he continues to be a
possessor in good faith up to now, until the contrary is proved.
4. Just Title: (Art 541)
a. A person who is believed to be the owner by the community has the legal presumption that he possesses
it with a just title; that he has a title to support his ownership and he cannot be obliged to show or
prove the title.
5. POSSESSION OF MOVABLES: (Art 542)
a. Possession of real property presumes that of the movables therein, so long as it is not shown or proved
that they should be excluded.
6. NON-INTERRUPTION OF POSSESSION (Art 533)
a. The possession of hereditary property is deemed transmitted to the heir w/o interruption, from the
moment of death of the decedent, in case the inheritance is accepted. One who validly renounces an
inheritance is never deemed to have accepted the same.
7. NON-INTERRUPTION OF POSSESSION OF PROPERTY UNJUSTLY LOST BUT LEGALLY
RECOVERED: (Art 561)
a. One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which
may redound to his benefit, to have enjoyed it without interruption.
8. POSSESSION DURING INTERVENING PERIOD: (Art 554; 1138 (2))
a. You are in actual possession of a parcel of land now. There is proof that you were in possession of this
land 10 years ago. But there is no proof that you were in possession during the intervening time. The
presumption is you were in continuous possession of the same.
9. EXCLUSIVE POSSESSION OF COMMON PROPERTY (Art 543)
a. Each one of the participants of a thing possessed in common shall be deemed to have exclusively
possessed the part w/c may be allotted to him upon the division thereof, for the entire period during
w/c the co-possession lasted.

Art. 530. Only things and rights which are susceptible of being appropriated may be the object of possession.

“Res nullius” = abandoned or ownerless property - may be possessed but cannot be acquired by prescription
 because prescription presupposed prior ownership by another
 however “res nullius” may be acquired by occupation

ACQUISITION OF POSSESSION:
Art 531: Possession is acquired
1. by the material occupation of a thing or the exercise of a right, or
2. by the fact that it is subject to the action of our will, or
3. by the proper acts and legal formalities established for acquiring such right

Three ways of acquiring possession:

1. Material occupation of the thing or exercise of a right.
a. Holding, apprehension, arrest, occupancy.
b. Occupation is used here in its ordinary sense which means holding of a thing which must be physical.
(Also the exercise of a right.)
2. By the action of our will (by agreement)
a. Here there is no actual physical detention or seizure of the thing but the agreement between the parties
constitutes the fact of possession.
3. By constructive possession or proper acts and legal formalities established by law.
a. This is the legal formality which gives rise to possession.
b. These are certain documents that can ordinarily give rise to possession because of legal fiction.
c. The moment that document takes effect, automatically, the person in whose favor those documents were
executed is deemed to have acquired possession of that property.

Example:
1. In donation, there is no need of delivery. The moment the donation is in the form provided by law, the
donee is deemed to be in possession of the thing donated. Ownership is automatically acquired by the
donee.
2. Will upon the death of the decedent. If the will is valid, automatically, the heirs mentioned in the will are
deemed by fiction of law to be in possession of the hereditary estate. Actually and in truth, the heirs are
not in actual possession but by fiction of law, the possession by the decedent is deemed to be continued
without any interruption. (Article 533)

Cequeña vs. Bolante (330 SCRA 216)

F: Can tax receipts and declarations be the basis of claim of ownership through prescription?
H: yes, if coupled with other proof of actual possession
Petitioners did not lose legal possession because possession cannot be acquired through force or violence.
To all intents and purposes, a possessor even if physically ousted is still deemed the legal possessor. Indeed,
anyone who can prove prior possession, regardless of its character, may recover such possession. However,
possession by the petitioners does not prevail over that of the respondent. The respondent is the preferred
possessor because, benefiting from her father's tax declaration of the subject lot since 1926, she has been in
possession thereof for a longer period. On the other hand, petitioner's father acquired joint possession only in
1952.
Page 42 of 82

Tax receipts and declarations of ownership, when coupled with proof of actual possession of the property,
can be the basis of a claim for ownership through prescription. Respondent's possession was not disturbed until
1953 when the petitioner's father claimed the land. But by then, her possession, which was in the concept of an
owner -- public, peaceful, and uninterrupted had already ripened into ownership. Furthermore, she herself after
her father's demise declared and paid realty taxes for the disputed land.
Tax declarations and receipts are not conclusive evidence of ownership. At most they constitute mere prima
facie proof of ownership or possession of the property for which taxes have been paid. In the absence of actual,
public and adverse possession, the declaration for tax purposes does not prove ownership.
The petitioners, despite 32 years of farming the subject land, did not acquire ownership by mere occupation.
Unless coupled with the element of hostility toward the true owner, occupation and use, however long, will not
confer title by prescription or adverse possession.

Art. 532. Possession may be acquired:

1. by the same person who is to enjoy it,
2. by his legal representative,
3. by his agent, or
4. by any person without any power whatever; but in the last case, the possession shall not be considered as
acquired until the person in whose name the act of possession was executed has ratified the same, without
prejudice to the juridical consequences of negotiorum gestio in a proper case.

Who may acquire Possession?

Ans: One who is in full possession of his civil capacity can acquire possession of a thing or a right through
1. any of the three ways of acquiring possession as provided in Art, 531
a. Material occupation of the thing;
b. by the action of our will;
c. proper acts and legal formalities established by law; or
2. may (under Art 432) acquire through
a. his representative;
b. by his agent, or
c. any person without any power whatsoever (negotiorum gestio – Art 2144)

The possession of a person without power cannot be acquired without the ratification of the person in whose
name the act of possession was executed.

Art. 533. The possession of hereditary property is deemed transmitted to the heir without interruption and from
the moment of the death of the decedent, in case the inheritance is accepted.
One who validly renounces an inheritance is deemed never to have possessed the same

Art. 534. On who succeeds by hereditary title shall not suffer the consequences of the wrongful possession of
the decedent, if it is not shown that he was aware of the flaws affecting it; but the effects of possession in good
faith shall not benefit him except from the date of the death of the decedent.

Art. 535. Minors and incapacitated persons may acquire the possession of things; but they need the assistance of
their legal representatives in order to exercise the rights which from the possession arise in their favor.

May minors and incapacitated persons acquire possession?

Ans: Minors and incapacitated persons
~ may acquire possession in those matters where they have capacity to act like in the case of
o physical seizure of res nullius or
o donation of personality simultaneously delivered to them; and
~ not possession where juridical acts are imperative like
o donations of realty where minors and incapacitated persons have no juridical capacity to execute (Art
535)
o possession of land the ownership of which he desires to test in court

Art. 536. In no case may possession be acquired through force or intimidation as long as there is a possessor
who objects thereto.
He who believes that he has an action or a right to deprive another of the holding of a thing, must invoke the
aid of the competent court, if the holder should refuse to deliver the thing.

Art. 537. Acts merely tolerated, and those executed clandestinely and without the knowledge of the possessor of
a thing, or by violence, do not affect possession.

Circumstances that cannot give rise to possession:

1. Force, violence, intimidation.
a. The law shall not consider you as a possessor of a thing (Tomas vs. CA, 185 SCRA 627)
b. As long as there is a possessor who objects. If the objection ceases, the possession began by force may be
acquired
2. Mere tolerance of the owner
3. Clandestine acts or secret possession cannot give rise to possession, for possession must be open (Art 537)
Page 43 of 82

THE DIRECTOR, LANDS MANAGEMENT BUREAU vs. CA (324 SCRA 757)

F: Cariño’s family wants to register the land. They alleged that they have been cultivating it for 26 years. They
have not produced a single muniment of title to substantiate his claim of ownership.
H: proof of adverse possession is necessary
In order that a petition for registration of land may prosper, the applicant must show that he or his
predecessor-in-interest has been in open, continuous, exclusive, and adverse possession and occupation of the
land sought for registration, for at least thirty (30) years immediately preceding the filing of the petition for
confirmation of title.
In this case, private respondent has been in possession of the land for only 26 years as of 1975 when he filed
the petition beginning from 1949 when the same was adjudicated to him by virtue of extra-judicial settlement
and partition. Other than his unilateral assertion, private respondent has not introduced sufficient evidence to
substantiate his allegation that his late mother possessed the land in question even prior to 1911.
The phrase "adverse, continuous, open, public, peaceful possession in the concept of owner", by which
characteristics private respondent describes his possession and that of his parents, are mere conclusions of law
requiring evidentiary support and substantiation. The burden of proof is on the private respondent, as applicant,
to prove by clear, positive and convincing evidence that the alleged possession of his parents was of the nature
and duration required by law. His bare allegations without more, do not amount to preponderant evidence that
would shift the burden of proof to the oppositor.

Will the status as a possessor in the concept of holder of the tenant improve if he erred in believing that the
landlord was the owner of the property?
A: No. One who possesses as a mere holder acknowledges in another a superior right which he believes to
be ownership, whether his belief be right or wrong. [Maglucot-aw vs Maglucot, 329 SCRA 78]

What is the purpose of lis pendens?

A: It is an announcement to the whole world that a particular properly is in litigation and serves as warning
that one who acquires an interest over said property does so at his own risk, or that he gambles on the result of
the litigation over said property. [Heirs of Antonio Pael vs. Court of Appeals 325 SCRA 552].
It may involve actions that deal not only with the title or possession of a property, but even with the use or
occupation thereof. [Viewmaster Construction Corp. vs. Maulit 325 SCRA 821]

May a buyer of a real property be considered in good faith if he fails to inquire upon the rights of those in
possession thereof?
A: No. The rule is settled that a buyer of real property which is in possession of persons other than the seller
must be wary and should investigate the rights of those in possession; otherwise, without such inquiry, the
buyer can hardly be regarded as buyer in rood faith [Republic vs. de Guzman, 326 SCRA 267).
A purchaser cannot close his eyes to facts which should put a reasonable man upon his guard, and then
claim that he acted in good faith under the belief that there was no defect in the title of the vendor. His mere
refusal to believe that such defect exists or his willful closing of his eyes to the possibility of the existence of a
defect in the vender's title will not make him an innocent purchaser for value, if afterwards it develops that the
title was in fact defective, and it appears that he had such notice of the defects as would have led to its discovery
had he acted with the measures of precaution which may be required of a prudent man in a like situation (Uy vs.
Court of Appeals, 246 SCRA 703)

Is there a legal presumption of good faith in favor of a buyer of a land?

A: While everyone is presumed to have acted in good faith, the burden of proving the status of a purchaser
in good faith and for value lies upon him who asserts that status. In discharging the burden, it is not enough to
invoke ordinary presumption of good faith. The good faith that is here essential is integral with the very status
which must be proved. (Embrado vs. Court of Appeals 233 SCRA 335)

What is the significance of tax declarations on claims of ownership?

A: In the absence of actual, public and adverse possession, the declaration of the land for tax purposes does
not prove ownership. Tax receipts and declarations of ownership for taxation, when coupled with proof of
actual possession of the property can be the basis of a claim of ownership through prescription (Cequena v.
Bolante,330 SCRA 2l6)

May a possessor who was ousted through force or violence deemed to be the legal possessor?
A: No. Possession cannot be acquired through force or violence. For all intents and purposes, a possessor,
even if physically ousted, is still deemed the legal possessor. (Cequena vs. Bolante, 330 SCRA 216}

What governs the properly relationship between a man and woman living together as husband and wife without
the benefit of marriage?
A: Co-ownership, provided that both are not incapacitated to marry.
Property acquired by a man living with a common law wife during the subsistence of his marriage is
conjugal property, even when the property was titled in the name of the common law wife. (Adriano vs. Court
of Appeals, 328 SCRA 738)

Art. 538. Possession as a fact cannot be recognized at the same time in two different personalities except in the
cases of co-possession.
Should a question arise regarding the fact of possession,
1. the present possessor shall be preferred;
2. if there are 2 possessors, the one longer in possession;
Page 44 of 82

3. if the dates of the possession are the same, the one who presents a title; and
4. if all these conditions are equal, the thing shall be placed in judicial deposit pending determination of its
possession or ownership through proper proceedings.

Possession as a Fact:
1. GENERAL RULE – Possession as a fact cannot be recognized at the same time in 2 different personalities
(2 people cannot own 1 thing at the same time)
2. EXCEPTIONS:
a. Co-possession – since here there is no conflict of interest
b. Possession in different or degrees such as:
 owner in the concept of an owner
 tenant in the concept of a holder
3. APPLICATION – Art. 538 applies to preference in possession whether real or personal property is
involved

Rule or Criteria to be Used in Case of Conflict or Dispute Regarding Possession:

1. The present possessor shall be preferred
2. If both are present, the one longer is possession
3. If both began to possess at the same time, the one who presents a title such as a:
a. deed of sale
b. contract of lease
c. MOA
4. If both present a title, the court will determine and in the meantime, the thing shall be judicially deposited

Art. 1544 which applies to PREFERENCE OF OWNERSHIP:

1. Movable Property – given to the person who first possessed it in good faith
2. Immovable property – given to:
a. the first who registered his right in good faith in the ROD
b. if there was no registration – to the first who possessed in good faith
c. if there was no possession – to the one who presents the oldest title, provided it had been acquired in good
faith

EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be respected in his possession; and should he be disturbed therein he
shall be protected in or restored to said possession by the means established by the laws and the Rules of Court.
A possessor deprived of his possession through forcible entry may within 10 days from the filing of the
complaint present a motion to secure from the competent court, in the action for forcible entry, a writ of
preliminary mandatory injunction to restore him in his possession. The court shall decide the motion within 30
days from the filing thereof.

The right to:

1. be respected in his possession,
2. be protected or
3. restored to said possession by legal means in case of disturbance of another

Reasons for the rule:

1. to prevent a positive attempt against public order;
2. to avoid disturbances in the community;
3. to prevent deprivation of property without due process of law,
4. to avoid taking into his own hands the administration of justice.

Remedies:
Action for Action for Accion publiciana Accion
forcible entry Unlawful detainer Reivindicatoria
(FISTS)
Definition Recover material or Possession by a When entry was not Action to recover
physical possession landlord, vendor, obtained thru FISTS ownership over real
of real property when vendee or other or where the 1-year property
a person originally in person of any land or period from bringing
possession was bldg is being forcible entry or
deprived thereof by unlawfully withheld unlawful detainer has
force, intimidation, after the expiration or already lapsed
strategy, threat, or termination of the
stealth right to hold
possession, by virtue
of any contract,
express or implied
Prescription w/in 1 year from w/in 1 year from the w/in 10 years or 30
dispossession time possession years (whether
becomes unlawful (If ordinary or
fixed, then demand extraordinary
Page 45 of 82

not needed otherwise prescription); does

period counted from not lapse by death
date of demand)
Issue Mere physical Mere physical Who has better right Ownership
possession NOT possession NOT of possession
juridical possession juridical possession (Possession de jure)
or ownership or ownership

Unlawful detainer:
1. Here, the possession was lawful in the beginning but became unlawful afterwards
2. Prior possession by the plaintiff is not always essential or a condition sine qua non

Millena v. CA (324 SCRA 126)

F: Untitled property has been possessed by the Jacob for 40 years. Jacob originally bought this from co-owner
Listana. The other owner was able to acquire free patent over the whole lot and sold it to Millena. Can
prescription be invoked in an action for reconveyance when the plaintiff is in possession of the land to be
reconveyed?
H: No, prescription cannot be invoked in an action for reconveyance when the plaintiff is in possession of the
land to be reconveyed.
Article 523 of the Civil Code states the possession is the holding of a thing or the enjoyment of a right. In
order to possess, one must first have control of the tiling and, second, a deliberate intention to possess it. These
are the elements of possession.

Presumption of Ownership:
Art. 540. Only the possession acquired and enjoyed in the concept of owner can serve as a title for acquiring
dominion.

Art 541: A possessor in the concept of an owner has in his favor the legal presumption that he possesses with a
just title and he cannot be obliged to show or prove it.

"just title"
Refers to true and valid title – a title which by itself is sufficient to transfer ownership without the necessity
of letting the period elapse (Diolente v. Biarnessa, 7 P 232)

Example:
B brought a car from S, the owner thereof. Then S delivered the car to B. B now has a valid and true title
over the car.
Thus, if B possesses and drives the car around as an owner, other people cannot compel him to prove
ownership thereof.

Note:
For purposes of prescription, "just title" means colorable title or that title where although there was a mode
of transferring ownership, still something is wrong, because the grantor is not the owner of the thing.

Example:
In the above example, if it turns out that S is not the owner of the car and somebody else was its owner, B
would not be considered as the owner thereof because he did not acquire it from the owner of the car,
irrespective whether or not he is in good faith.
However, for purposes of prescription, his possession is just considered as “just title” of the period required
by law depending on whether he is in good faith or not.

PRESCRIPTIVE PERIOD: Personal Real

Good faith 4 years 10 years
Bad faith 8 years 30 years

Reasons for the presumption:

1. a possessor is always presumed to be in good faith;
2. because of the inconvenience of carrying proofs of ownership around;

Requisites in order that the principle “Possession is presumed ownership” to apply:

1. One must be in possession, actual or constructive;
2. the possession must be in the concept of an owner, not mere holder; (Art 540)

Art. 542. The possession of real property presumes that of the movables therein, so long as it is not shown or
proved that they should be excluded.
Art. 543. Each one of the participants of a thing possessed in common shall be deemed to have exclusively
possessed the part which may be allotted to him upon the division thereof, for the entire period during which the
co-possession lasted.
Interruption in the possession of the whole or a part of a thing possessed in common shall be to the prejudice
of all the possessors. However, in case of civil interruption, the Rules of Court shall apply.
Page 46 of 82

Rules Regarding the Rights of the Possessor (in the concept of an owner)
Art. 544. A possessor in good faith is entitled to the fruits received before the possession is legally interrupted.
Natural and industrial fruits are considered received from the time they are gathered or severed.
Civil fruits are deemed to accrue daily and belong to the possessor in good faith in that proportion.

Art. 545. If at the time the good faith ceases, there should be any natural or industrial fruits, the possessor shall
have a right to a part of the expenses of cultivation, and to a part of the net harvest, both in proportion to the
time of the possession.
The charges shall be divided on the same basis by the two possessors.
The owner of the thing may, should he so desire, give the possessor in good faith the right to finish the
cultivation and gathering of the growing fruits, as an indemnity for his part of the expenses of cultivation and
the net proceeds; the possessor in good faith who for any reason whatever should refuse to accept this
concession, shall lose the right to be indemnified in any other manner. (452a)

With respect to the Fruits:

1. If the possessor is in good faith;
a. gathered or severed or harvested fruits are his own;
b. pending or ungathered fruits - pro-rating between possessor and owner or expenses, net harvest and charges
2. If the possessor is in bad faith;
a. gathered fruits
i. he must return the value of the fruits already received,
ii. plus the value of the fruits w/c the owner could have received w/ due care and diligence,
iii. minus necessary expenses for the cultivation, gathering and harvesting of the fruits,
iv. to prevent the owner from being unjustly enriched;
b. pending or ungathered fruits
i. he has no rights at all,
ii. not even to expenses for cultivation because by accession, all should belong to the owner, w/o
indemnity

Art. 546. Necessary expenses shall be refunded to every possessor; but only the possessor in good faith may
retain the thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in good faith with the same right of retention, the
person who has defeated him in the possession having the option of refunding the amount of the expenses or of
paying the increase in value which the thing may have acquired by reason thereof.

Art. 547. If the useful improvements can be removed without damage to the principal thing, the possessor in
good faith may remove them, unless the person who recovers the possession exercises the option under
paragraph 2 of the preceding article.

Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the possessor in good faith; but he
may remove the ornaments with which he has embellished the principal thing if it suffers no injury thereby, and
if his successor in the possession does not prefer to refund the amount expended.

Art. 549. The possessor in bad faith shall reimburse the fruits received and those which the legitimate possessor
could have received, and shall have a right only to the expenses mentioned in paragraph 1 of article 546 and in
article 443. The expenses incurred in improvements for pure luxury or mere pleasure shall not be refunded to
the possessor in bad faith, but he may remove the objects for which such expenses have been incurred, provided
that the thing suffers no injury thereby, and that the lawful possessor does not prefer to retain them by paying
the value they may have at the time he enters into possession.

With Respect to Expense:

Rights of the Possessor
Good Faith Bad Faith
Expenses Refund Retain Remove Refund Retain Remove
Necessary Yes Yes N/A Yes N/A N/A
(Art. 546) (Art. 546) (Art.
542)
Useful Yes – amount Yes Yes – except N/A N/A N/A
of expense or (Art. 546) when owner
increase in exercises option
value to refund
(Art. 546)
Luxurious N/A N/A Yes – except N/A N/A Yes, except if
when owner opts (Art. (Art. 549) owner opts to
to refund 549) pay its value
Page 47 of 82

Necessary expenses
~ those without which the thing would physically deteriorate or be lost
~ made for the preservation of the thing

Useful Expenses
~ those that add value to the property or increase the object’s productivity or useful for the satisfaction of
spiritual or religious yearnings or give rise to all kinds of fruits
~ if only certain or definite possessor would benefit = luxuries
~ if in general, every possessor gains = useful

Luxuries = can increase civil fruits, not the industrial or natural fruits

Art. 550. The costs of litigation over the property shall be borne by every possessor.

Art. 551. Improvements caused by nature or time shall always insure to the benefit of the person who has
succeeded in recovering possession.

Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the thing possessed, except
in cases in which it is proved that he has acted with fraudulent intent or negligence, after the judicial summons.
A possessor in bad faith shall be liable for deterioration or loss in every case, even if caused by a fortuitous
event.

Liability for Loss or Deterioration

1. Possessor in GOOD FAITH
a. BEFORE the receipt of Judicial Summons – NOT liable
b. AFTER Judicial Summons –
 Loss or deterioration thru fortuitous event – NOT liable
 Loss due to fraudulent intent or negligence – LIABLE
2. Possessor in BAD FAITH – LIABLE whether:
a. before or after judicial summons
b. due to fortuitous event or not

Art. 553. One who recovers possession shall not be obliged to pay for improvements which have ceased to exist
at the time he takes possession of the thing.

Art. 554. A present possessor who shows his possession at some previous time, is presumed to have held
possession also during the intermediate period, in the absence of proof to the contrary.

Art. 555. A possessor may lose his possession:

(1) By the abandonment of the thing;
(2) By an assignment made to another either by onerous or gratuitous title;
(3) By the destruction or total loss of the thing, or because it goes out of commerce;
(4) By the possession of another, subject to the provisions of article 537, if the new possession has lasted longer
than one year. But the real right of possession is not lost till after the lapse of ten years.

Ways of Losing Possession

1. Thru the Possessor’s VOLUNTARY WILL or INTENT
a. TOTAL ABANDONMENT
b. ASSIGNMENT
2. AGAINST the Possessor’s Will
a. Possession of another for more than 1 year
b. Final judgment in favor of another
c. Expropriation
d. Prescription in favor of another
e. Recovery or reivindication by the legitimate owner or possessor
3. Because of the OBJECT
a. DESTRUCTION or TOTAL LOSS of the thing
b. Going out of commerce
c. Escaping from possessor’s control of wild animals

Abandonment
1. Definition – The voluntary renunciation of the thing
2. Requisites
a. The abandoner must have been the possessor in the concept of an owner
b. The abandoner must have the capacity to renounce or alienate
c. There must be physical relinquishment of the thing
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d. There must be no more:

 spes recuperendi – expectation to recover
 animus revertendi – intent to return of get back
e. Abandoner must have knowledge of the loss of possession
3. NOTE:
a. After abandonment, the thing is converted to res nullius
 But this does not apply to land
 Much less to registered land
b. In true abandonment both possession de jure and de facto are lost
c. There is no abandonment due to temporary ignorance of the whereabouts of the thing
d. Mere tolerance does NOT constitute abandonment

Assignment
1. Definition – The complete transmission of ownership rights to another person:
a. onerously – as when a thing is sold and delivered
b. gratuitously – as in the case of donation
2. Distinctions:
a. Assignment
 at NO time did the thing NOT have a possessor (for possession merely changed hands or control)
 may in some cases be by onerous title
b. Abandonment
 there was a time, no matter how short, when the object did not have possessor at all
 always gratuitous, otherwise it becomes a virtual assignment
3. NOTE – In assignment – both possession de facto and de jure are lost

Possession of Another
1. If a person is NOT in possession for more than 1 year (but less than 10 years)
a. he loses possession de facto or possession as a fact
b. this means that he can no longer bring an action for:
 forcible entry or
 unlawful detainer
c. since the prescription period is 1 year for such actions
d. constructive possession is also lost
e. but he may still institute an accion publiciana (for a better right of possession) to recover possession de
jure or the real right of possession
2. If a person loses possession for more than 10 years
a. he loses possession de jure or the real right of possession
b. accion publiciana or reivindicatoria is still possible
c. UNLESS prescription has set in

Art. 556. The possession of movables is not deemed lost so long as they remain under the control of the
possessor, even though for the time being he may not know their whereabouts.

Art. 557. The possession of immovables and of real rights is not deemed lost, or transferred for purposes of
prescription to the prejudice of third persons, except in accordance with the provisions of the Mortgage Law and
the Land Registration laws.

Art. 558. Acts relating to possession,

1. executed or agreed to
2. by one who possesses a thing belonging to another as a mere holder
3. to enjoy or keep it, in any character,
4. do not bind or prejudice the owner,
5. unless he
a. gave said holder express authority to do such acts, or
b. ratifies them subsequently.

RULE ON IRREIVINDICABILITY:
Article 559: The possession of movable property acquired in good faith is equivalent to title.
Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from
the person in possession of the same. If the possessor of a movable lost or of which the owner has been
unlawfully deprived, has acquired in good faith at a public sale, the owner cannot obtain its return without
reimbursing the price paid therefore.

Acquired in good faith here means the possessor is of the belief that the person from whom he received the
thing was its owner and could transfer valid title thereto.

Requisites for title:

1. That the possession is in good faith,
2. That the owner has voluntarily parted with the possession of the thing,
3. That the possession is in the concept of an owner
Page 49 of 82

GR: Under this situation, if the (real) owner gets the thing, he must REIMBURSE.

Exceptions to the Rule: (NOTE: here, there is no reimbursement)

1. When the owner has lost the thing;
2. When the owner has been unlawfully deprived of the thing.

Exception to the exception: (this is also equivalent to title)

(Note: Here, the owner of the thing shall REIMBURSE the price paid)
~ When the possessor had acquired the thing in good faith at a public auction sale

Instances where there could be no recovery even if the owner offers reimbursement:
1. if possessor acquired the thing in good faith by purchase from a merchant store or fairs or in MARKETS, in
accordance with the Code of COMMERCE or special laws (Art 1505 NCC; Art 85 of the Code of
Commerce);
2. if owner is by his own conduct precluded from denying the seller’s authority to sell (estoppel; Art 1505
NCC);
3. holders in due course; (Art. 1518, NCC)
4. finders of lost article after a lapse of six (6) months; (Art 719, NCC)
5. acquisitive prescription; [Art 1132, NCC]

Unlawfully deprived, meaning of:

Edca Publishing v. Santos (184 S 614)

F: fake La Salle teacher, Cruz, bought books, on account from Edca. He was issued a receipt. Cruz sold some
of the books to Santos. Cruz could not be found anymore, so Edca went after Santos
H: no unlawful deprivation since there was delivery; unpaid price did not affect the books
Article 1477 of the Civil Code provides that the ownership of the thing sold shall be transferred to the
vendee upon the actual or constructive delivery thereof. Art 1478 provides that the parties may stipulate that
ownership in the thing shall not pass to the purchaser until he has fully paid the price.
It is clear from the above provisions, particularly Art 1478, that ownership in the thing sold shall not pass to
the buyer until full payment of the purchase price only if there is a stipulation to that effect. Otherwise, the rule
is that such ownership shall pass from the vendor to the vendee upon the actual or constructive delivery of the
thing sold even if the purchase price has not yet been paid. Non-payment creates a right to demand payment or
to rescind the contract, or to criminal prosecution in the case of bouncing checks. But absent the stipulation
above noted, delivery of the thing sold will effectively transfer ownership to the buyer who can in turn transfer
it to another.
Actual delivery of the books having been made, Cruz acquired ownership over the books which he could
then validly transfer to the private respondents. The fact that he had not yet paid for them to EDCA was a matter
between him and EDCA and did not impair the title acquired by the private respondents to the books.

Tagactac vs. Jimenez

F: Tagactac sold the car to Feist, who sold it to Sanchez, who sold it to Jimenez. Feist failed to pay, so Tagactac
wants to recover the vehicle from Jimenez on the ground that she had been unlawfully deprived of it by reason
of Feist’s deception.
H: no unlawful deprivation since there was delivery
The point of inquiry is whether plaintiff-appellant Trinidad C. Tagactac has been unlawfully deprived of her
car. At first blush, it would seem that she was unlawfully deprived thereof, considering that she was induced to
part with it by reason of the chicanery practiced on her by Feist. Certainly, swindling, like robber is an illegal
method of deprivation of property. In a manner of speaking, plaintiff-appellant was "illegally deprived' of her
car, for the way by which Feist induced her to part with it is illegal and punishable by law. But does this
“unlawful deprivation” come within the scope of Article 559 of the New Civil Code?
The fraud and deceit practiced by Feist earmarks this sale as a voidable contract (Art 1390). Being a
voidable contract, it is susceptible of either ratification or annulment. If the contract is ratified, the action to
annul it is extinguished (Art 1392) and the contract is cleansed from all its defects (Article 1396, NCC); if the
contract is annulled, the contracting parties are restored to their respective situations before the contract and
mutual restitution follows as a consequence (Art 1398).
However, as long as no action is taken by the party entitled, either that of annulment or of ratification, the
contract of sale remains valid and binding. When plaintiff-appellant Tagactac delivered the car to Feist by virtue
of said voidable contract of sale, the title to the car passed to Feist. Of course, the title that Feist acquired was
defective and voidable. Nevertheless, at the time he sold the car to Felix his title was avoided and he therefore
conferred good title on the latter, provided he bought the car in good faith, for value and without notice of the
defect in Feist’s title (Art 1506).

AZNAR vs. YAPDIANGCO (13 S 486)

F: Buyer Marella was short of P2,000, so asked Santos to allow her to show the registration of the car on her
name. Marella ran off with the registration and sold the car to Aznar. Santos now wants to recover the car from
Aznar. Defense of Aznar:
Page 50 of 82

“Article 1506: Where the seller of goods has a voidable title thereto, but his title has not been voided at the time
of the sale, the buyer acquired a good title to the goods, provided he buys them in good faith, for value and
without notice of the seller’s defect or title.”
H: there is unlawful deprivation since there was no valid transfer
Under Art 1506, it is essential that the seller should have a voidable title at least. It is very inapplicable
where, as in this case, the seller had not title at all.
Marella did not have any title to the property under litigation because the same was never delivered to him.
He sought ownership or acquisition of it by virtue of the contract. Marella could have acquired ownership or
title to the subject matter thereof by the delivery or tradition of the car to him. The car in question was never
delivered to the vendee by the vendor as to complete or consummate the transfer of ownership by virtue of the
contract. It should be recalled that while there was indeed a contract of sale between Santos and Marella, the
latter as the vendee, took possession of the subject matter thereof by stealing the same while it was in the
custody of the former’s son.

Del Rosario vs. Lucena, 8 Phil 535

F: Del Rosario gave her jewelries to Lucena & Verches for consignment. The two pawned the jewelry without
Del Rosario’s consent. They was subsequently convicted of estafa. Del Rosario now wants the jewelry to be
declared as hers but trial court ordered that she should first pay P3,500
H: Del Rosario need not reimburse Verches & Lucena
No. Teresa Verches accepted the jewelries as a pledge constituted by Praxedes Flores in the name of Pia del
Rosario without ascertaining whether the latter had given the former any order or authority to pledge the
jewelries. Teresa Verches must stand the risk arising from her acceptance of the pledge, even if when relying
upon her judgment she was improperly or falsely informed.
Moreover, Teresa did not fall in any of the exceptions wherein she could lawfully refuse to make restitution of
the property without reimbursement of the amount advanced upon the pledge: If the possessors of personal
property lost or stolen have acquired it at
a. public sale or
b. at fairs or markets or
c. from a merchant lawfully engaged in similar business.

For this reason, it is therefore improper to compel Pia to reimburse Teresa in the sum of P3.500 which
Praceses obtained through the commission of an unlawful act, but that it is proper and in accordance with the
law to compel Teresa to return to Pia, absolutely and unconditionally the jewelries in question.

Varela vs. Finnick, 9 Phil 482

F: Varela gave Pascual some jewelries to be sold on commission basis. Pascual pawned them without Varela’s
consent. Pascual was convicted of estafa. Pawnshop refused to return the jewelries to Varela
H: Varela is entitle to the jewelries
Varella lost the said jewelries and was deprived of the same in consequence of a crime (estafa), therefore
entitled to the recovery thereof from the pawnshop of Finnick where they were pledged without reimbursing
Finnick the same.
Here, not only has the ownership and the origin of the jewelries misappropriated been unquestionably proven
but also that Pascual, acting fraudulently and in bad faith, disposed of them and pledged them contrary to
agreement, with no right of ownership, and to the prejudice of Varela who was thereby illegally deprived of said
jewelries.
Therefore, in accordance with Art 464, Varella has an absolute right to recover the jewelries from Finnick in
accordance with the judgment entered in the cause for estafa, wherein Pascual having been found guilty, the
right of Varella to recover the jewelries in question is expressly acknowledged.

Arenas vs. Raynmundo, 19 Phil 46

F: Parello pledged jewelries to Raymundo’s pawnshop. He was subsequently convicted of estafa since Arenas
owns the jewelry. Pawnshop refused to return the jewelries to Arenas
H: jewelries must be returned to Arenas
The Civil Code prescribes as one of the essential requisites of contracts of pledge and of mortgage that the
thing must belong to the person who pledges or mortgages it. The essential requisites for a contract, of pledge
between Perello and Raymundo is absent, as Perello was not the owner. Contract was devoid of value and force,
it cannot confer upon the defendant any right in the pledged jewelry, and no obligation is imposed toward him
on the part of the owner thereof.
The possession of personal property acquired in good faith is equivalent to a title thereto. However, the
person who has lost personal property or has been illegally deprived thereof may recover it from whoever
possesses it.
The owner of things pledged in pawnshops established with the authorization of the government cannot
recover lost things without reimbursing the price paid. This exception is not applicable to the present case
because a pawnshop does not enjoy the privilege established by Article 464, therefore, the plaintiffs who lost
said jewelry and deprived of the same are entitled to the recovery thereof from the pawnshop of Raymundo
where it was pledged. Raymundo cannot lawfully refuse to comply with the provisions of Art 120 of the RPC,
as it is a question of jewelry that have been misappropriated by the commission of a crime of estafa. Good faith
cannot be raised with which the owner of the pawnshop acquired them inasmuch as they were delivered to the
accused, and the accused was not the owner nor authorized to dispose them.

US v. Rey (L-3326; 9/7/1907)

Page 51 of 82

F: Steamer sank – along with money belonging to 3 firms. Rey found the location of the wrecked streamer and
took the money there
H: there is no abandonment in this case
Article 460 of the Civil Code provides how the possessor of property may lose his possession of the
same:
1. By abandonment of the thing.
2. By the transfer to another for a good and valuable consideration.
3. By the destruction of total toss of the thing or by the thing becoming unmarketable,
4. By the possession of another, even against the will of the former possessor, it the new possessor has lasted
more than one year.

Can one be charged with the abandonment of his property without even knowing that the same has passed out
of his possession or has been lost? The answer is no. Manresa, in his Commentaries upon the provisions of the
Civil Code, says: "He who has a right may renounce it. This act by which thing is voluntary renounced
constitutes an abandonment. There is no real intention to abandon a property when, as in the casecof a
shipwreck or a fire, things are thrown into the sea upon the highway." Certainly the owner of the property
cannot be held to have abandoned the same until at least he at least has some knowledge of the loss of its
possession or of the loss of the thing. Property can not be considered abandoned under the law and the
possession left vacant for the finder until the spes recuperandi is gone and the animus revertendi is finally given
up.
The mere fact that cargo is sunk with a ship wrecked at the sea by no means deprives the owner of said cargo
of his property therein. The owner certainly still had the right to reclaim such property and to recover the same
if possible. If it should be recovered by others, the real owner would be entitled to recover its value less the
necessary expense of recovering the same and carrying it shore by the most approved appliances for that
purpose by others.

United States v. Sotelo (28 P 147)

If A entrusts money to B who later gives the same to C, an innocent recipient for value, A, cannot recover
the money (or negotiable document) from C since money ordinarily does not bear the earmarks of particular
ownership. BUT if instead of money, the object had been an identifiable one, then recovery can be had for C
had acquired same from someone (B) who had no authority to dispose of the same. And such recovery does not
need reimbursement. C should require the indemnity from B and not A.

Art. 560. Wild animals are possessed only while they are under one's control; domesticated or tamed animals
are considered domestic or tame if they retain the habit of returning to the premises of the possessor.

Art. 561. One who recovers, according to law, possession unjustly lost, shall be deemed for all purposes which
may redound to his benefit, to have enjoyed it without interruption.

USUFRUCT IN GENERAL
Article 562: Usufruct gives a right to enjoy the property of another with the obligation of preserving its forms
and substance, unless the title constituting it or the law otherwise provides.

Rights of Full Owner = DISPOSE + USE + FRUITS

FULL OWNERSHIP = Naked Ownership + Usufruct

Characteristics: (mem)
1. Essential (Usufruct cannot exist without these)
a. Real right;
b. Temporary in nature;
c. Purpose is to enjoy the benefits;
2. Natural (Ordinarily present but may be eliminated by agreement)
a. Obligation to conserve and preserve
3. Accidental (may or may not be present depending upon the stipulation of the parties)

Usufruct Easment
Object may be real or personal property Involves only real property
What can be enjoyed are ALL uses and the fruits Limited to a particular use
of the property
It cannot be constituted on an easement but it can May be constituted in favor of, or burdening, a
be constituted on the land burdened by am piece of land held in usufruct
easement
Usually extinguished by the death of the Not extinguished by the death of the owner of the
usufructuary dominant estate

Art. 563. Usufruct is constituted

1. by law,
2. by the will of private persons expressed
a. in acts inter vivos or
Page 52 of 82

b. in a last will and testament, and

3. by prescription.

How is Usufruct created:

1. by law;
a. Articles 225 and 226 of the Family Code, Art 321 of the Civil Code
b. The property of an emancipated child is owned exclusively by the child and shall be devoted solely for
his support and education. As to the fruits or income of the property, the rights of the parents over the
same shall be limited only to the child's support and collective daily needs of the family.
2. by contract or agreement;
3. by last will and testament.

Rules governing usufruct:

1. Agreement; (or the title giving the usufruct)
2. Civil Code.

Art. 564. Usufruct may be constituted

1. on the whole or a part of the fruits of the thing,
2. in favor of one more persons, simultaneously or successively, and
3. in every case from or to a certain day, purely or conditionally.
It may also be constituted on a right, provided it is not strictly personal or intransmissible.

Art. 565. The rights and obligations of the usufructuary shall be those provided in the title constituting the
usufruct; in default of such title, or in case it is deficient, the provisions contained in the 2 following Chapters
shall be observed.

RIGHTS OF THE USUFRUCTUARY:

1. He is entitled to all natural, industrial and civil fruits if the property but w/ respect to the hidden treasure, he
is a stranger unless he is the finder he gets ½ (Art. 566)
2. To enjoy all the accessions whether natural or artificial – all benefits inherent in the property
3. To enjoy the thing by himself or thru another – he can:
a. appoint an administrator
b. lease the property to another but NOT longer than the term of the usufruct
c. alienate, sell, donate his usufructuary rights (Art. 572)
4. To make use of things included in the usufruct w/c gradually deteriorate thru wear and tear – abnormal
usufruct (Art. 573)
5. To make use of consumable things given in usufruct – quasi- usufruct (Art. 574)
6. To make use of dead tree trunks- special usufruct (Art. 575)
7. To make useful or luxurious improvements for mere pleasure

FIRST:
The usufructuary shall be entitled to all the natural, industrial and civil fruits of the property in usufruct. With
respect to hidden treasure which may be found on the land or tenement, he shall be considered stranger. (Art
566)

Art. 567. Natural or industrial fruits growing at the time the usufruct begins, belong to the usufructuary.
Those growing at the time the usufruct terminates, belong to the owner.
In the preceding cases, the usufructuary, at the beginning of the usufruct, has no obligation to refund to the
owner any expenses incurred; but the owner shall be obliged to reimburse at the termination of the usufruct,
from the proceeds of the growing fruits, the ordinary expenses of cultivation, for seed, and other similar
expenses incurred by the usufructuary.
The provisions of this article shall not prejudice the rights of 3rd persons, acquired either at the beginning or at
the termination of the usufruct.

Art. 568. If the usufructuary has leased the lands or tenements given in usufruct, and the usufruct should expire
before the termination of the lease, he or his heirs and successors shall receive only the proportionate share of
the rent that must be paid by the lessee.

Art. 569. Civil fruits are deemed to accrue daily, and belong to the usufructuary in proportion to the time the
usufruct may last.

Art. 570. Whenever a usufruct is constituted on the right to receive a rent or periodical pension, whether
Page 53 of 82

1. in money or
2. in fruits, or
3. in the interest on bonds or securities payable to bearer
each payment due shall be considered as the proceeds or fruits of such right.
Whenever it consists in the enjoyment of benefits accruing from a participation in any industrial or
commercial enterprise, the date of the distribution of which is not fixed, such benefits shall have the same
character.
In either case they shall be distributed as civil fruits, and shall be applied in the manner prescribed in Art. 569.

Rules:
1. Pending natural or industrial fruits;
a. growing at the time the usufruct begins belong to the usufructuary;
i. Here, the usufructuary has no obligation to refund for the expenses but without prejudice to the right
of third persons.
ii. Thus, if the fruits had been placed by a possessor in good faith, the pending crop expenses and
charges shall be pro-rated between said possessor and the usufructuary (Art 545)
b. Those growing at the time the usufruct terminates, belong to the naked owner (Art 567)
i. Here, the naked owner is obligated to reimburse the expenses incurred for the ordinary cultivation
and seeds and other similar expenses from the proceeds of the fruits.
ii. Hence, the excess of expenses over the proceeds need not be reimbursed.
2. Civil Fruits: (Rents, pensions, benefits, etc.) [Art 570]
a. Stock dividends, cash dividends, and profits of a partnership are civil fruits
b. they shall be deemed to accrue proportionately to the naked owner and usufructuary for the time the
usufruct lasts.

Example: A gave B in usufruct the profits of a certain building for five (5) years. If the usufruct lasts for the
period stipulated, all the profits during the said period will go to B. Suppose however, B died at the end of three
(3) years, and the following were the profits from the building:

Year Profit
1 10,000
2 20,000
3 30,000
4 20,000
5 40,000
Total 120,000

Ratio is 3:2, thus share of B is P72,000 while that of A is P48,000

SECOND.
The usufructuary has the right to the enjoyment of
1. accessions (whether artificial or natural),
2. servitudes and easements;
3. all benefits inherent in property (i.e.: the right to hunt and fish therein; the right to construct rain water
receptacles) (Art 571)

THIRD.
The usufructuary, in addition to the usufruct (as a right) may: (Article 572)
1. enjoy the thing itself or thru another;
2. lease the thing to another (for a period not longer than that of the usufruct) even without the naked owner’s
consent:
3. alienate, sell, donate, bequeath, or devise, sell or pledge the usufructuary right (not the thing itself or future
crops, for crops pending at the termination of the usufruct belong to the naked owner.)

~ Usufruct that cannot be alienated

o a legal usufruct – the usufruct w/c parents have over the property of their unemancipated children (Art
226(2) FC)
o usufruct granted a usufructuary in consideration of his person
o usufruct acquired thru a caucion juratoria – for here the need of the usufructuary himself is the reason
for the enjoyment
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FOURTH.
The usufructuary has the right to MAKE USE of things included in usufruct which gradually deteriorate
without being consumed, through wear and tear, in accordance with the purpose for which they were intended.
(Abnormal Usufruct) (Article 573)

Examples:
Clothes, furniture, vehicles, books etc.

Effect of the deterioration:

1. Because of normal use = the usufructuary is not liable.
a. He can return them in the condition they might be in at the termination of the usufruct.
b. There is no necessity for him to make any repairs to restore them to their former condition.
c. Although there is no express provision on the matter, if the usufructuary does not return the things
upon the expiration of the usufruct, he shall pay an indemnity for the value of the thing at the time of
such expiration.
2. Because of fortuitous event = usufructuary is obliged to make the necessary and ordinary repairs (Art
592).
a. But the deterioration thru normal use does not require the ordinary repairs referred to under Art 592.
3. Because of fraud = the usufructuary is responsible.
a. But such liability may be set off against improvements (Art 580);

FIFTH:
The usufructuary has the right to MAKE USE of consumable things in usufruct (quasi-usufruct) [Art 574]

~ The principle of creditor-debtor relationship applies (bec. the form and substance is not really preserved;
thus, this is really a simple loan)
~ Here, the usufructuary becomes the owner of the things (consumable) in usufruct, such as a sum of money
or a quantity of liquid of grain but he has the obligation
o to pay the current price or
o return the things of the same quantity and quality at the time the usufruct ceases.

SIXTH.
The usufructuary of fruit-bearing trees and shrubs has the right to make use of the dead trunks, and even of
those cut off or uprooted by accident (special usufruct) [Art 575]

Here, the usufructuary is obliged to replace with new plants.

Other SPECIAL USUFRUCTS – OF:

1. Periodical pension, income, dividends (Art. 570)
2. Woodland (Art. 577)
3. Right of action to recover real property, real right or movable property (Art. 578)
4. Part of property owned in common (Art. 582)
5. The entire patrimony of a person (Art. 598)
6. Mortgaged immovable (Art. 600)
7. Flock or herd of livestock (Art. 591)

Art. 576. If in consequence of a calamity or extraordinary event, the trees or shrubs shall have disappeared in
such considerable number that it would not be possible or it would be too burdensome to replace them, the
usufructuary may leave the dead, fallen or uprooted trunks at the disposal of the owner, and demand that the
latter remove them and clear the land.

Art. 577. The usufructuary of woodland may enjoy all the benefits which it may produce according to its nature.
If the woodland is a copse or consists of timber for building, the usufructuary may do such ordinary cutting or
felling as the owner was in the habit of doing, and in default of this, he may do so in accordance with the
custom of the place, as to the manner, amount and season.
In any case the felling or cutting of trees shall be made in such manner as not to prejudice the preservation of
the land.
In nurseries, the usufructuary may make the necessary thinnings in order that the remaining trees may
properly grow.
With the exception of the provisions of the preceding paragraphs, the usufructuary cannot cut down trees
unless it be to restore or improve some of the things in usufruct, and in such case shall first inform the owner of
the necessity for the work.

Art. 578. The usufructuary of an action to recover real property or a real right, or any movable property, has the
right to bring the action and to oblige the owner thereof to give him the authority for this purpose and to furnish
him whatever proof he may have. If in consequence of the enforcement of the action he acquires the thing
claimed, the usufruct shall be limited to the fruits, the dominion remaining with the owner.

SEVENTH:
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The usufructuary has the right to make:

1. useful improvements,
2. luxurious improvements done for mere pleasure. [579]

However:
1. He must not alter the form or substance of the property held in usufruct unless the naked owner consents;
2. He is not entitled to a refund but
a. he may either
i. remove the improvement if no substantial damage to the property is caused (Art 579); or
ii. to set off (compensate) the improvements against damages for which he may be liable (Art 580).
b. His right does not involve an obligation, hence, if the usufructuary does not wish to exercise it, he cannot
be compelled by the naked owner to remove his improvements.
c. The option to remove is granted to the usufructuary.

Art. 580. The usufructuary may set off the improvements he may have made on the property against any
damage to the same.

Rule in case of set off: (Art 580)

a. If damage is greater than the improvement - usufructuary is liable for the excess
b. If improvement is greater than the damage - the naked owner is not liable to refund the excess

Art. 581. The owner of property the usufruct of which is held by another, may alienate it, but he cannot:
1. alter its form or substance, or
2. do anything thereon which may be prejudicial to the usufructuary.

Art. 582. The usufructuary of a part of a thing held in common shall exercise all the rights pertaining to the
owner thereof with respect to the administration and the collection of fruits or interest.
Should the co-ownership cease by reason of the division of the thing held in common, the usufruct of the
part allotted to the co-owner shall belong to the usufructuary.

If a co-owner of a property gives the usufruct of his share to another: (Art 582)
1. The usufructuary takes the co-owner’s place as to:
a. administration or management;
b. collection of fruits or interest
2. but not as to alienation, disposition, or creation of any real right over the property, since these are strict acts
of ownership, unless authorized by the naked owner

Effect of Partition:
1. The usufructuary continues to have the usufruct of the part allotted to the co-owner concerned.
2. The co-owner may partition the property even without the consent of the usufructuaruy and the partition is
binding upon the usufructuary.
a. However, the naked owner (co-owner) must respect the usufructuary.

Obligations of the Usufructuary:

General Obligations of the Usufructuary:

1. BEFORE the usufruct – Make an inventory
2. DURING the usufruct - Take care of the property
3. AFTER the usufruct – Return property and indemnify in proper cases

Art. 583. The usufructuary, before entering upon the enjoyment of the property, is obliged:
1. To make, after notice to the owner or his legitimate representative, an inventory of all the property, which
shall contain an appraisal of the movables and a description of the condition of the immovables;
2. To give security, binding himself to fulfill the obligations imposed upon him in accordance with this
Chapter.

General Rule: The usufructuary BEFORE entering upon the enjoyment of the property is obliged:
1. to make after notice to the owner an inventory of all property which shall contain
a. appraisal of the movables and
b. description of the condition of the immovable:
2. to give SECURITY, binding himself to fulfill the obligations imposed upon him.

~ The obligation to make inventory and to give security are not necessary in order for the right to the usufruct
begins but are merely required before physical possession and enjoyment of the property can he had.
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EXCEPTION: Inventory is not required when:

1. no one will be injured thereby
a. as in the case of usufruct over a periodical pension or incorporeal right (Art 570),
b. provided the naked owner consents for the law says “may” (Art 585);”
2. in case of waiver by the naked owner; or
3. when there is stipulation (in a will or contract)

Security is not required when:

1. no one will be injured thereby
a. as in the case of usufruct over a periodical pension or incorporeal right (Art 570),
b. provided the naked owner consents for the law says “may" (Art 585);
2. in case of waiver by the naked owner; or when there is stipulation (in a will or contract),
3. When the usufructuary is the donor of the property (who has reserved the usufruct) (The naked owner
should be grateful enough not to acquire the security.)
4. There is a parental usufruct
5. In cases of caucion juratoria (promise under oath) Art 587.

Art. 584. The provisions of No. 2 of the preceding article shall not apply to:
1. the donor who has reserved the usufruct of the property donated, or
2. to the parents who are usufructuaries of their children's property, except when the parents contract a second
marriage.

Art. 585. The usufructuary, whatever may be the title of the usufruct, may be excused from the obligation of
making an inventory or of giving security, when no one will be injured thereby.

Art. 586. Should the usufructuary fail to give security in the cases in which he is bound to give it, the owner
may demand:
1. that the immovables be placed under administration,
2. that the movables be sold,
3. that the public bonds, instruments of credit payable to order or to bearer be converted into registered
certificates or deposited in a bank or public institution, and
4. that the capital or sums in cash and the proceeds of the sale of the movable property be invested in safe
securities.
The interest on the proceeds of the sale of the movables and that on public securities and bonds, and the
proceeds of the property placed under administration, shall belong to the usufructuary.
Furthermore, the owner may, if he so prefers, until the usufructuary gives security or is excused from so
doing, retain in his possession the property in usufruct as administrator, subject to the obligation to deliver to
the usufructuary the net proceeds thereof, after deducting the sums which may be agreed upon or judicially
allowed him for such administration.

Art. 587. If the usufructuary who has not given security claims, by virtue of a promise under oath, the delivery
of the furniture necessary for his use, and that he and his family be allowed to live in a house included in the
usufruct, the court may grant this petition, after due consideration of the facts of the case.
The same rule shall be observed with respect to implements, tools and other movable property necessary for
an industry or vocation in which he is engaged.
If the owner does not wish that certain articles be sold because of their artistic worth or because they have a
sentimental value, he may demand their delivery to him upon his giving security for the payment of the legal
interest on their appraised value.

Caucion Juratoria: (587)

A sworn duty to take good care of the property and return the same at the end of the usufruct.

Caucion Juratoria only applies to:

1. furniture necessary for the use of the usufructuary;
2. house which his family may live;
3. tools or implements and other movables necessary for an industry or vocation which the usufructuary is
engaged, and the usufructuary cannot afford to give the required security, he may file a petition before
the courts to allow him to enjoy possession of the said properties in usufruct and swear under oath to take
good care and return them at the end of the usufruct.

Art. 588. After the security has been given by the usufructuary, he shall have a right to all the proceeds and
benefits from the day on which, in accordance with the title constituting the usufruct, he should have
commenced to receive them. (has retroactive effect)

Art. 589. The usufructuary shall take care of the things given in usufruct as a good father of a family.

Art. 590. A usufructuary who alienates or leases his right of usufruct shall answer for any damage which the
things in usufruct may suffer through the fault or negligence of the person who substitutes him.
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Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary shall be obliged to
replace with the young thereof the animals that die each year from natural causes, or are lost due to the rapacity
of beasts of prey.
If the animals on which the usufruct is constituted should all perish, without the fault of the usufructuary, on
account of some contagious disease or any other uncommon event, the usufructuary shall fulfill his obligation
by delivering to the owner the remains which may have been saved from the misfortune.
Should the herd or flock perish in part, also by accident and without the fault of the usufructuary, the usufruct
shall continue on the part saved.
Should the usufruct be on sterile animals, it shall be considered, with respect to its effects, as though
constituted on fungible things.

RULE ON ORDINARY REPAIRS:

Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct.
By ordinary repairs are understood such as are required by the wear and tear due to the natural use of the thing
and are indispensable for its preservation.
Should the usufructuary fail to make them after demand by the owner, the latter may make them at the
expense of the usufructuary

The usufructuary is obliged to make the ordinary repairs needed by the thing given in usufruct.
These are repairs needed because of an event or an act that endangers the preservation of the thing
(distinguished from deterioration under Article 572).

Conditions for liability:

1. they are required by normal or natural use ;
2. they are needed for preservation,
3. they must have occurred during the usufruct;
4. they must have happened without the fault of the usufructuary

~ If the naked owner had demanded the repair, and the usufructuary still fails to do so, the owner may make
them personally or through another at the expense of the usufructuary.

RULE ON EXTRA-ORDINARY REPAIRS

Art. 593. Extraordinary repairs shall be at the expense of the owner.

The usufructuary is obliged to notify the owner when the need for such repairs is urgent.

Art. 594. If the owner should make the extraordinary repairs, he shall have a right to demand of the usufructuary
the legal interest on the amount expended for the time that the usufruct lasts.
Should he not make them when they are indispensable for the preservation of the thing,
1. the usufructuary may make them;
2. but he shall have a right to demand of the owner,
3. at the termination of the usufruct,
4. the increase in value which the immovable may have acquired by reason of the repairs.

Kinds of Extraordinary Repair & Who Should Pay for Them

Kind of Repair Who Should Pay
Those caused by NATURAL The NAKED OWNER – whether or not he is notified by the usufructuary
USE but NOT NEEDED for 1. BUT he is NOT required to make the repairs
preservation 2. It is ONLY when it is made that the expenses must be borne by the
naked owner
Those caused by The NAKED OWNER – whether or not he is notified by the usufructuary
ABNORMAL or 1. The naked owner CANNOT be compelled to make the repairs
EXCEPTIONAL 2. BUT the usufructuary is allowed to make them with the right:
circumstances and NEEDED a. to get increase in value (regardless of whether the expense is greater
for preservation than the increase)
1. as when an earthquake b. of retention until paid at the termination of usufruct
renders the stairs of the c. PROVIDED:
house unsafe  There was NOTIFICATION, and
2. or when lightning splits a  FAILURE to repair by the naked owner
table into 2
Those caused by The NAKED OWNER – whether or not he is notified by the usufructuary
ABNORMAL or 1. the usufructuary CANNOT compel the naked owner to make them
EXCEPTIONAL 2. NOR is the usufructuary allowed to make them – because there is no
circumstances but are NOT necessity for preservation here
needed for preservation 3. BUT if the naked owner makes the repairs, he can ask for legal interest
w/ respect to the amount spent

NOTE – The naked owner pays for the extraordinary repairs because it is his property
 Page 58 of 82

Rights of the Naked Owner If He Makes the Extraordinary Repairs:

1. He can demand from the usufructuary the legal interest on the amount spent for the duration of the usufruct
2. Reason – because the usufructuary has benefited from the repair, otherwise, the thing may not be properly
used

Requisites Before the Usufructuary is Allowed to Make the Extraordinary Repairs:

1. There must be due notification to the naked owner of the urgency
2. The naked owner failed to make them
3. The repair is needed for preservation

Rights of the Usufructuary Who Has Made the Extraordinary Repairs:

1. He can
a. get an increase in the value of the thing repaired (difference between the value before and the value after
the repair)
b. get reimbursement for expenses
2. He has the right of retention until he is paid (reimbursement is to be made ONLY at the END of the
usufruct)

Art. 595. The owner may

1. construct any works and make any improvements of which the immovable in usufruct is susceptible, or
2. make new plantings thereon if it be rural,
provided that such acts:
1. do not cause a diminution in the value of the usufruct or
2. prejudice the right of the usufructuary.

Art. 596. The payment of annual charges and taxes and of those considered as a lien on the fruits, shall be at the
expense of the usufructuary for all the time that the usufruct lasts.

Rules Regarding Taxes Imposed Directly on Capital: (Art 597)

1. It is the responsibility of the naked owner to pay for them
2. If paid by the naked owner – he can demand legal interest on the amount paid
3. If advanced in the meantime by the usufructuary, said usufructuary
a. should be reimbursed the amount paid – w/o legal interest
 made at the end of the usufruct if the usufructuary paid voluntarily
 made immediately – if the usufructuary had been forced to pay
b. is entitled to retention – until paid

Art. 598. If
598 applies if it 1. the usufruct be constituted on the whole of a patrimony, and
involves a
2. at the time of its constitution the owner has debts,
universal usufruct
the provisions of Art. 758 and 759 relating to donations shall be applied, both with respect to
1. the maintenance of the usufruct and
2. the obligation of the usufructuary to pay such debts.
The same rule shall be applied in case the owner is obliged, at the time the usufruct is constituted, to make
periodical payments, even if there should be no known capital.

Art. 599. The usufructuary may claim any matured credits which form a part of the usufruct if he has given or
gives the proper security. If he has been excused from giving security or has been able to give it, or if that given
is not sufficient, he shall need the authorization of the owner, or of the court in default thereof, to collect such
credits.
The usufructuary who has given security may use the capital he has collected in any manner he may deem
proper.
The usufructuary who has not given security shall invest the said capital at interest upon agreement with the
owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to
preserve the integrity of the capital in usufruct.

Art. 598 applies if:

1. The usufruct is a UNIVERSAL one (constituted on the whole patrimony of the naked owner)
2. The naked owner:
a. has debts, or
b. is obliged to make periodic payments
3. A person donated everything but reserved to himself the usufructuary thereof

Rules governing the payment of debts of the naked owner

1. If there is stipulation to pay the debts of the naked owner: Apply Art. 758
a. to pay only for prior debts and not for debts contracted after the usufruct has been made, unless there is a
declaration to the contrary;
b. pay only for debts up to the value of the property of usufruct unless, the contrary is intended
2. If there is no stipulation to pay the debts of the naked owner, apply Art. 759:
a. As a rule, there is no obligation to pay:
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b. the only exception is that when the usufruct was constituted in fraud of creditors

“in fraud of creditor”

When at the time of the constitution of usufruct, the naked owner did not reserve sufficient property to pay
his debts. This is presumed.

Art. 599. The usufructuary may claim any matured credits which form a part of the usufruct if he has given or
gives the proper security. If he has been excused from giving security or has been able to give it, or if that given
is not sufficient, he shall need the authorization of the owner, or of the court in default thereof, to collect such
credits.
The usufructuary who has given security may use the capital he has collected in any manner he may deem
proper.
The usufructuary who has not given security shall invest the said capital at interest upon agreement with the
owner; in default of such agreement, with judicial authorization; and, in every case, with security sufficient to
preserve the integrity of the capital in usufruct.

Art. 600. The usufructuary of a mortgaged immovable shall not be obliged to pay the debt for the security of
which the mortgage was constituted.
Should the immovable be attached or sold judicially for the payment of the debt, the owner shall be liable to
the usufructuary for whatever the latter may lose by reason thereof.
Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third person, of which he may
have knowledge, that may be prejudicial to the rights of ownership, and he shall be liable should he not do so,
for damages, as if they had been caused through his own fault.

When the Usufructuary is Required to Notify the Naked Owner:

When the Usufructuary is Required to Notify the Effects of Non-Notification
Naked Owner
If a 3rd party commits acts prejudicial to the “rights The usufructuary is liable for damages as if they
of ownership” (both rights of the usufructuary and have been cause by his own fault
the naked owner)
 as in disturbance of to the possession by the
usufructuary

If urgent repairs are needed The usufructuary cannot even make the
extraordinary repairs needed
If an inventory (at the beginning of the usufruct) is The inventory can go on but the naked owner may
made later point out the discrepancies and the omissions in
the inventory

Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct shall be borne by the
usufructuary.

EXTINGUISHMENT OF USUFRUCT

Art. 603. Usufruct is extinguished:

1. By the death of the usufructuary, unless a contrary intention clearly appears;
2. By the
a. expiration of the period for which it was constituted, or
b. fulfillment of any resolutory condition provided in the title creating the usufruct;
3. By merger of the usufruct and ownership in the same person;
4. By renunciation of the usufructuary;
5. By the total loss of the thing in usufruct;
6. By the termination of the right of the person constituting the usufruct;
7. By prescription.

DEATH of the USUFRUCTUARY

1. Extinguishes the usufruct
2. Exceptions:
a. in the case of a multiple usufruct – it ends on the death of the last survivor
b. if there is a period fixed on the number of years that would elapse before a person would reach a certain
age – UNLESS the period was expressly granted in consideration of the existence of such person, in w/c
case it ends as the death of such person
 Example – until X who is now 25 years old will become 40 – where the period is 15 years
c. in case the contrary intention CLEARLY appears
 Example – A was made a usufructuary only in order that he could enable his son B, to get a college
degree
 even if A dies before B graduates
 the usufruct is deemed to continue

OTHER CAUSES for EXTINGUISHMENT of USUFRUCT:

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1. Annulment
2. Rescission
3. Mutual withdrawal
4. Legal causes ending legal usufruct – as when attainment of the age of majority extinguishes parental
usufruct

NOTE:
1. Usufruct is not extinguished:
a. By abuse of misuse of the usufruct, unless by virtue of the abuse or misuse, the thing has been totally lost
b. By non-fulfillment of a suspensive condition for the reason that the usufruct never came into existence

Art. 604. If the thing given in usufruct should be lost only in part, the right shall continue on the remaining part.

Art. 605. Usufruct cannot be constituted in favor of a town, corporation, or association for more than 50 years.
If it has been constituted, and before the expiration of such period the town is abandoned, or the corporation
or association is dissolved, the usufruct shall be extinguished by reason thereof.

Art. 606. A usufruct granted for the time that may elapse before a 3 rd person attains a certain age, shall subsist
for the number of years specified, even if the 3 rd person should die before the period expires, unless such
usufruct has been expressly granted only in consideration of the existence of such person.

Example
1. A gave B his land in usufruct until C becomes 40 years old. A constituted the usufruct when C was 20.
a. This means that the usufruct should last for 20 years
b. Even if C dies before attaining the age of 40
c. If C dies at the age of 30 – the usufruct in B’s favor generally continues
2. Exception – If B was made the usufructuary only because he had to support C
a. It follows that the usufruct was expressly constituted only in consideration of the existence of C
b. Thus on C’s death, the usufruct ends

Art. 607. If the usufruct is constituted on immovable property of which a building forms part, and the latter
should be destroyed in any manner whatsoever, the usufructuary shall have a right to make use of the land and
the materials.
The same rule shall be applied if the usufruct is constituted on a building only and the same should be
destroyed. But in such a case, if the owner should wish to construct another building, he shall have a right to
occupy the land and to make use of the materials, being obliged to pay to the usufructuary, during the
continuance of the usufruct, the interest upon the sum equivalent to the value of the land and of the materials.

Rules when the Bldg is destroyed in any manner before the expiration of the Usufruct (607)
If the usufruct is both on bldg If the usufruct is on the bldg
& land alone
Usufruct on the bldg ends Ends
Usufruct on the land Continues
What the usufructuary can still Use of the: Use of the:
enjoy 1. land; and 1. land; and
2. remaining materials of the 2. remaining materials of the bldg
bldg
If the naked owner wants to Usufructuary – because the land Naked Owner – he has the
rebuild, but the usufructuary is still his for the remaining obligation to pay the usufructuary
refuses, whose decision will period the legal interest upon the sum
perevail? equivalent to the value of the land
and materials

Art. 608. If the usufructuary shares with the owner the insurance of the tenement given in usufruct, the
usufructuary shall, in case of loss, continue in the enjoyment of the new building, should one be constructed, or
shall receive the interest on the insurance indemnity if the owner does not wish to rebuild.
Should the usufructuary have refused to contribute to the insurance, the owner insuring the tenement alone,
the owner shall receive the full amount of the insurance indemnity in case of loss, saving always the right
granted to the usufructuary in the preceding article.

What happens to the Insurance Proceeds after the Bld is Destroyed (608)
Usufructuary contributed to the insurance Only the naked owner paid the insurance
premiums 608 premiums 607
Usufruct is on the bldg Usufruct is on both the Usufruct is on the bldg Usufruct is on both the
alone land and the bldg alone land and the bldg
In case the naked owner wants to rebuild – the The usufruct continues
usufruct continues on the new bldg w/ respect to the land &
materials
If the value of the bldg is: The naked owner is
1. less than the insurance indemnity = usufructuary entitled to the whole
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is entitled to the legal interest as to the proceeds of the

difference insurance indemnity
2. more than the insurance indemnity = naked owner
is not entitled to any interest as to the difference
If the naked owner If the naked owner The naked owner may The naked owner cannot
wants to rebuild and wants to rebuild and rebuild with or w/out the rebuild without the
usufructuary refuses – usufructuary refuses – consent of the consent of the
naked owner prevails usufructuary prevails usufructuary usufructuary
because there was no because the usufruct
usufruct over the land over the land continues should be
w/ or w/o
If the naked owner does In case the naked owner If the naked owner If the naked owner build
not rebuild: does not rebuild: rebuilds = he must pay w/ the consent of the
1. usufructuary is 1. usufructuary is entitled interest on the value of usufructuary:
entitled to interest to interest on the the land and the old 1. there is no usufruct
on the insurance insurance indemnity materials that may have over the new bldg
indemnity 2. naked owner gets the been used 2. BUT the naked owner
2. naked owner gets the insurance indemnity no usufruct over the new is liable to pay the
insurance indemnity 3. the usufruct continues building but usufructuary is usufructuary
entitled to interest on the value
3. usufructuary is w/ respect to the of the land and materials interest over the
entitled to the use of land and materials land and materials
the land

Art. 609. Should the thing in usufruct be expropriated for public use, the owner shall be obliged either to replace
it with another thing of the same value and of similar conditions, or to pay the usufructuary the legal interest on
the amount of the indemnity for the whole period of the usufruct.
If the owner chooses the latter alternative, he shall give security for the payment of the interest.

Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; but if the abuse should cause
considerable injury to the owner, he may demand that the thing be delivered to him, binding himself to pay
annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation
which may be allowed him for its administration.

Art. 611. A usufruct constituted in favor of several persons living at the time of its constitution shall not be
extinguished until death of the last survivor.

Art. 612. Upon the termination of the usufruct, the thing in usufruct shall be delivered to the owner, without
prejudice to the right of retention pertaining to the usufructuary or his heirs for taxes and extraordinary expenses
which should be reimbursed.
After the delivery has been made, the security or mortgage shall be cancelled.

EASEMENTS OR SERVITUDES

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another
immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the dominant estate; that which is
subject thereto, the servient estate.

Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom
the encumbered estate does not belong.

Easement is an encumbrance imposed upon an immovable for the benefit of:

1. community OR one or more persons = personal easement
2. another immovable belonging to a different owner = real easement (Article. 614)

Immovable:
The term “immovable“ must be construed in its common and not legal sense. Hence it refers to immovable
by nature, such as lands, roads, and buildings

Servient estate = is one which is burdened by servitude:

Dominant estate = is one that is benefited as a result of an easement

(VIP) Characteristics of Easement:

1. it is a real right;
2. imposable only against another’s property and never in one’s own property; it can exist only when the
servient estate and the dominant estate belongs two different persons
3. it is a form of limitation on ownership and restriction on the enjoyment of one’s own property
4. it is inseparable and indivisible; it cannot be separated from the tenement to which it belongs or divided
even if there is a division of the tenement (see Art 617 & 618)
5. it is intransmissible (unless the tenement affected is also transmitted or alienated);
6. it is perpetual unless extinguished
Page 62 of 82

Art. 615. Easements may be:

1. continuous or discontinuous,
2. apparent or nonapparent.
Continuous easements are those the use of which is or may be incessant, without the intervention of any act of
man.
Discontinuous easements are those which are used at intervals and depend upon the acts of man.
Apparent easements are those which are made known and are continually kept in view by external signs that
reveal the use and enjoyment of the same.
Nonapparent easements are those which show no external indication of their existence.

Art. 616. Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the servient estate the obligation of allowing
something to be done or of doing it himself.
A negative easement, that which prohibits the owner of the servient estate from doing something which he
could lawfully do if the easement did not exist.

Easements may also be:

I. According to the MANNER they are exercised or used:
1. Continuous easements - are those the use of which is or may be INCESSANT (without any interruption) or
without the intervention of any act of man;
a. Note: Here, for easement to be "continuous” the use does not have to be without interruption; it is enough
that it MAY BE incessant;
b. Note: The distinction between continuous and discontinuous easements refers only to the exercise of the
servitude, but not to the essence, because the servitude exists continuously, whether it is being used or
not.
c. Examples:
i. Easements of drainage = the fact that water flows in it signifies continuous use but the absence of any
flow does not make it non-continuous. It is enough that the flow of water may be without
interruption;
ii. Easements of aqueduct - it is considered as continuous at least for purposes of prescription) even
though the flow of water may not be continuous, or its use depends upon the needs of the dominant
estate, or upon a schedule or alternate days or hours
2. Discontinuous Easements = they are used at intervals and depend upon the acts of man.
a. Example: Easement of right of way because it can be exercised only if a man passes or puts his feet over
somebody else’s land.

II. According to whether or not their EXISTENCE is indicated:

1. APPARENT Easement = those made known and continually kept in view by external signs that reveal the
use and enjoyment of the same
a. The sign need not be seen but should be susceptible of being seen.
b. Example:
i. a dam;
ii. a window in the party wall visible to both owners;
iii. a right of way if there is an alley or a permanent path;
2. NON-APPARENT Easements - they show no external indication of their existence
a. Examples: (in general, negative easements)
i. Easement of building more than certain height;
ii. A right of way if there is no visible path or alley

III. According to PURPOSE of the easement or nature of the limitation:

1. Positive Easement (servitude of sufferance) = Here, the owner of the servient estate as OBLIGED
a. to allow something to be done on his property; or
b. to do something himself on his property.
c. Example:
i. Easement of light and view on openings made on a PARTY WALL
 If one opens a window on a party wall the other owner may close it anytime. However, if he does not
close it, and the other owner acquires the easement by prescription, the other owner can no longer
close it. Therefore, the owner of the servient estate is allowing something to be done on his property.
 Note: Easement of light and view on a party wall: Here, the owners of such wall permit the
encumbrance to burden their common wall.
ii. the owner of the servient estate has the duty to cut off the branches of his tree extending over the
neighboring estate
2. NEGATIVE Easements (servitude of limitation) = Here, the owner of the servient estate is prohibited to do
something which he could lawfully do were it not for the existence of the easement
a. Example: Easement of light and view on openings made on one's OWN WALL
i. When a person makes an opening on his own wall to admit light below the ceiling joist, and he
acquires a servitude to admit such light, the servitude is a negative one, because it imposes upon the
owner of the adjacent tenement the obligation not to construct on his own land in such a manner as
to obstruct the light.
Page 63 of 82

Art. 617. Easements are inseparable from the estate to which they actively or passively belong.

Art. 618. Easements are indivisible. If the servient estate is divided between 2 or more persons, the easement is
not modified, and each of them must bear it on the part which corresponds to him.
If it is the dominant estate that is divided between 2 or more persons, each of them may use the easement in its
entirety, without changing the place of its use, or making it more burdensome in any other way.

How are easements established?

Art 619: Easements are established either by law (legal easements) or by will of the owners (voluntary
easements)

MODES OF ACQUIRING EASEMENTS:

Art 620: Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten
years.

1. Continuous and apparent easements (meaning they are continuous and apparent at the same time) may be
acquired by:
a. Title
i. Does not necessary mean documents
ii. any kind of juridical act or law sufficient to create the encumbrance
iii. such as: contract, donation, testamentary succession
b. Prescription = 10 years whether in good faith or in bad faith
c. Note: Art 1115 – general rules on prescription are not applicable in cases of prescription provided for by
Special or particular provisions
2. Discontinuous and apparent = only by title,
3. Continuous and apparent = only by title;
4. Discontinuous and non-apparent = only by title.

How can continuous and apparent easements be acquired thru prescription:

Art. 621. In order to acquire by prescription the easements referred to in the preceding article, the time of
possession shall be computed thus:
1. in positive easements, from the day on which the owner of the dominant estate, or the person who may
have made use of the easement, commenced to exercise it upon the servient estate; and
2. in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument
acknowledged before a notary public, the owner of the servient estate, from executing an act which would
be lawful without the easement.

Continuous and apparent easement may be either positive or negative depending upon whether or not a
"sufferance" or a ''limitation" is to be made.

1. If easement is POSITIVE = the period of prescription is counted from the day of the dominant estate began
to exercise it:
a. Example: A and B are neighbors and they own a party wall. If A makes an opening or window in the
party wall in 1988, B can close it anytime before 1998. Because if by the time the window is still open,
A has already acquired the easement of light and view by prescription of 10 years, counted from the
opening of the window
b. Note: A window on a party wall is something allowed by a co-owner to be done on his own property and
may therefore give rise to a positive easement of sufferance
2. if the easement is NEGATIVE = the period is counted from the date of NOTARIAL PROHIBITION made
upon the servient estate.
3. Example: A and B are neighbors. On the wall of his building, A opened a window beneath the ceiling joist
to admit light in 1978. Even after 10 years (1988), B may still obstruct the light by constructing on his
own lot a building higher than A’s unless A makes a Notarial Prohibition prohibiting B from making the
obstruction.

If in 1984, A makes a prohibition, may B still make the obstruction?

Ans: Yes, because, it is only in 1994 (ten years after the notarial prohibition) when A may be said to have
acquired the negative easement of light and view. After 1994, B may no longer obstruct.

Why can negative easements be acquired by prescription despite the fact that they are non-apparent?
Because of the notarial prohibition, w/c makes apparent what is really non-apparent

Art. 622. Continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be
acquired only by virtue of a title.

Art. 623. The absence of a document or proof showing the origin of an easement which cannot be acquired by
prescription may be cured by a deed of recognition by the owner of the servient estate or by a final judgment.

Art 624 (Apparent sign of easement)

The existence of an apparent sign of easement between two estates,
1. established or maintained by the owner or both,
Page 64 of 82

2. shall be considered,
3. should either be alienated, as a title
4. in order that the easement may continue actively or passively,
5. unless at the time the ownership of the two estates is divided,
a. the contrary should be provided in the Title of the Conveyance of either of them, or
b. the sign aforesaid should be removed before the execution of the deed.

This provision shall also apply in case of the division of a thing owned in common by two or more persons.

1. Refers not to an existing sign but a sign of an existing easement;

2. It is the servitude between the two tenements which must exist, not the sign

Art. 625. Upon the establishment of an easement, all the rights necessary for its use are considered granted.

Art. 626. The owner of the dominant estate cannot use the easement except for the benefit of the immovable
originally contemplated.
Neither can he exercise the easement in any other manner than that previously established.

Rights and Obligations:

Art. 627. The owner of the dominant estate may make, at his own expense, on the servient state any works
necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient estate, and shall choose the most convenient time
and manner so as to cause the least inconvenience to the owner of the servient estate.

Art. 628. Should there be several dominant estates, the owners of all of them shall be obliged to
1. contribute to the expenses referred to in Art. 627,
2. in proportion to the benefits which each may derive from the work.
Any one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of
the others.
If the owner of the servient estate should make use of the easement in any manner whatsoever, he shall also be
obliged to contribute to the expenses in the proportion stated, saving an agreement to the contrary.

Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the manner established for the use of the
easement,
1. the same
a. should become very inconvenient to the owner of the servient estate, or
b. should prevent him from making any important works, repairs or improvements thereon,
3. it may be changed at his expense,
4. provided he offers another place or manner equally convenient and
5. in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have
a right to the use of the easement.

Art. 630. The owner of the servient estate retains the ownership of the portion on which the easement is
established, and may use the same in such a manner as not to affect the exercise of the easement.

RIGHTS of the DOMINANT Estate

1. To EXERCISE the easement and all necessary rights for its use including accessory easement (625)
2. To MAKE on the servient estate all works necessary for the use and preservation of the easement, BUT
a. this must be at his own expense
b. he must notify the servient owner
c. he must select a convenient time and manner
d. he must NOT
 alter the easement, or
 render it more burdensome
3. To ASK for a mandatory injunction to prevent impairment or obstruction in the exercise of the easement
a. as when the owner of the dominant estate obstructs the right of way w/ a building or fence (Rasolme v.
Lazo 27 P 416)
4. To Totally RENOUNCE the easement if he desires an exemption from contribution of expenses (628)

OBLIGATIONS of the DOMINANT Estate

1. He cannot ALTER the easement (627)
2. He CANNOT make it more burdensome
a. He cannot use the easement except for movables originally contemplated (626)
b. In right of way, he cannot increase the agreed width of the path nor deposit soil or materials outside the
boundaries agreed upon (for these acts would be increasing the burden) BUT he may allow others to use
the path (this really does not increase the burden) except of the contrary has been stipulated
 BUT in the case of Encarnacion vs. CA – the SC ruled that the dominant estate may increase the width
of the easement because it is the need of the dominant estate that determines the width of the easement
Page 65 of 82

3. If there are several dominant estates, each must CONTRIBUTE to the necessary repairs and expenses
a. in proportion to the BENEFIT received by each estate
b. and NOT to the value of each estate

RIGHT of the SERVIENT Estate

1. To RETAIN ownership of the portion of his land affected by the easement
a. even if indemnity for right of way is given
b. unless the contrary has been stipulated
2. To make USE of the easement
a. unless deprived by stipulation
b. provided that
 the exercise of the easement is not adversely affected
 he contributes to the expenses in proportion to the benefit received
 unless there is a contrary stipulation
3. to change the location of a very inconvenient easement provided that an equally convenient substitute is
made, without injury to the dominant estate (629(2))

OBLIGATIONS of the SERVIENT Estate

1. He cannot IMPAIR the use of the easement
2. He must CONTRIBUTE to the expenses in case he uses the easement, unless there is a contrary stipulation
3. In case of impairment, RESTORE conditions to the status quo at his expense
a. In case of obstruction, as when he fences the original right of way and offers an inconvenient substitute
way, which is farther and requires turning at a sharp angle, he may be restrained by injuction
4. To PAY for expenses incurred for the change of location or form of easement

Rasolme v. Lazo (27 P 416)

F: landowner built a fence thus Rasolme had to use a less convenient means of passage
H: Rasolme has a claim on the old right of way
The trial court correctly sustained the plaintiff's claim to the old right of way. However there is nothing in the
record to justify a finding that the defendant was charged with the duty of maintaining or constructing a road
across his land. So far as the record disclosed his only obligation in regard to this right of way over his land is a
negative one, that is to say, not to obstruct or hinder the free passage over it of any person entitled to make use
of it. The trial court should have granted a permanent injunction prohibiting the defendant from obstructing, by
maintenance of fences, the plaintiff’s passage over the ancient right of way.

Encarnacion v. CA (3/11/1991)
F: Encarnacion wants to widen the path because his jeep could not pass through. Magsino turned down
Encarnacion’s offer saying Encarnacion could instead use a dried up river bed – 80 m away
H: Encarnacion has a right to widen the path
While there is a dried up river bed less than 100 m away from the dominant tenement, such access is grossly
inadequate. Passage is very difficult, if not, impossible. Generally a right of way may be demanded:
1. where there is absolutely no access to a public highway
2. when even if there is one, it is difficult and dangerous to use or is grossly insufficient
3. where a private property has no access to a public road, it has the right of easement over adjacent servient
estates as a matter of law.

Art 651 NCC provides that it is the needs of the dominant property which ultimately determines the width of
passage. Those needs may vary from time to time. Also Art 649 provides that an easement which is of
continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the amount
of damage caused by the servient estate. Thus, petitioner is entitled to an additional easement of right of way of
25 meters long and by 1 ½ meter wide over the servient estate after payment of proper indemnity.

Modes of Extinguishment of Easements

Art. 631. Easements are extinguished:
1. By merger in the same person of the ownership of the dominant and servient estates;
2. By nonuser for 10 years; with respect to
a. discontinuous easements, this period shall be computed from the day on which they ceased to be used;
and,
b. continuous easements, from the day on which an act contrary to the same took place;
3. When either or both of the estates fall into such condition that the easement cannot be used; but it shall
revive if the subsequent condition of the estates or either of them should again permit its use, unless when
the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of
the preceding number;
4. By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;
5. By the renunciation of the owner of the dominant estate;
6. By the redemption agreed upon between the owners of the dominant and servient estates.
Page 66 of 82

[1]
MERGER

The merger must be:

1. absolute – no condition
2. complete – not partial
3. permanent – not temporary

Thus, if the owner of the servient buys the whole portion affected, the merger is complete and the easement is
extinguished. But if the portion bought is not the portion affected, the easement naturally remains.

Examples:
Temporary Merger: A the dominant owner, sold a retro, his estate to B, the servient owner
~ The easement is NOT extinguished
~ It is only suspended because the merger is only temporary
~ It revives when the property is redeemed

Conditional Merger: The dominant estate was donated to the servient estate but it was stipulated that if the
servient owner marries X, the property reverts to the dominant owner
~ pending the resolutory condition – the merger can be considered temporary
~ when the servient owner marries X, the easement is revived
~ if no marriage takes place as when X dies, the merger is permanent and the easement is thus extinguished

[2]
NON-USER for 10 Years
1. Refers to an easement that has once been used because one cannot discontinue using what has never been
used
2. Non-user means voluntary abstention and not due to fortuitous event, because the basis of this cause is
presumptive renunciation

From what time to compute:

1. discontinuous easements - from the day on which they ceased to be used
 when a right of way is no longer used
2. continuous easements, from the day on which an act contrary to the same took place
 when an aqueduct is blocked
 thus the erection of works incompatible with the exercise of the easement or totally obstructing the
servitude agreed to by the owner of the dominant estate, amounts to a tacit renunciation and
extinguishes the servitude

[3]
By IMPOSSIBILITY OF USE or BAD CONDITION of the tenement

~ The impossibility of using the easement, which arises from the condition of the tenements, only suspends the
servitude, until such lime when it can be used again.
~ Example: The flooding of the servient tenement over which a right of way exists, unless, extinguishment is
caused by the necessary period for non-user.

[4]
BY EXPIRATION of the term or FULFILLMENT of the condition

Example: An easement was agreed upon to last till the owner of the dominant estate becomes a lawyer. When
the condition is fulfilled the easement is extinguished

[5]
WAIVER or RENUNCIATION of the dominant estate

As a general rule, the renunciation must be express, clear and specific (otherwise it may be confused with
none-user). However, it may be tacit for as long as there are acts which clearly reveal it beyond doubt.

[6]
REDEMPTION agreed upon

This is voluntary redemption, existing because of a stipulation. Stipulations may provide conditions under
which the easement would be extinguished

[7]
Page 67 of 82

OTHER causes:
1. Expropriation of the servient estate,
2. Annulment, recession or cancellation of the title that constituted the easement;
3. Abandonment of the servient estate;
4. Resolution of the right of the grantor to create the easement (as when there is redemption of the property
sold a retro because of the exercise of the right of conventional redemption);

Art. 632. The form or manner of using the easement may prescribe as the easement itself, and in the same way.

Art. 633. If the dominant estate belongs to several persons in common, the use of the easement by any one of
them prevents prescription with respect to the others.

LEGAL EASEMENTS
Art 634: Easements imposed by law have for their object either public use or the interest of private persons.

Legal easements - those imposed by law and which have for their object either
1. public use - governed by special laws (i.e. Law on Waters; Irrigation Law; Water Code)
2. the interest of private persons - governed by the
a. provisions of the Civil Code;
b. agreement between the parties;
c. general or local laws.

Different kinds of legal easements

1. easement relating to waters;
a. natural drainage of lands (Article 637)
b. natural drainage of buildings (Article 674)
c. easement on riparian banks for navigation; floatage and salvage (Article 638)
d. easement of a dam (Articles 639, 647)
e. easement for drawing water or for watering animals (Articles 640-641)
f. easement of aqueduct (Articles 643-646)
g. easement for the construction of a stop lock or sluice gate.
2. right of way;
3. party wall;
4. light and view;
5. drainage;
6. intermediate distance,
7. easement against nuisance
8. lateral and subjacent support

EASEMENT OF RIGHT OF WAY

Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is
entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use may be continuous for all the needs of the
dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied
and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by
others and for the gathering of its crops through the servient estate without a permanent way, the indemnity
shall consist in the payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.

Definition
The easement or privilege by which one person or a particular class of persons is allowed to pass over
another’s land, usually through one particular path or line. The term right of way may either refer to the
easement itself or the strip of land over which passage can be done.

Requisites:
1. The property is surrounded by the estates of others,
2. There is no adequate outlet to a public highway.
a. If outlet is through the water, like a river or sea, under Spanish law, the easement cannot be demanded
for there exists an adequate outlet
b. it is believed that in the Philippines, a distinction must be made, depending on danger, convenience and
cost.),
3. There must be payment of proper indemnity, (but later on, the amount may be refunded when the easement
ends, (Art 655));
4. It must be established at a point least prejudicial to the servient estate (This is generally but not necessarily
the shortest distance);
5. The isolation must not be due to the proprietor's own acts (as when he has built enclosing walls (Art 649))
6. Demandable only by the owner or one with a real right like a usufructuary (The lessee should ask the lessor
to demand the easement from adjoining estates.)
Page 68 of 82

Note:
1. The onus or the burden of proof is upon the owner of the dominant estate to show the specific averments in
his complaint the existence of the requisites or preconditions enumerated
2. In Rivera vs. IAC. 169 SCRA 307, it was held that mere convenience for the dominant estate is not a
sufficient basis for the grant of easement of right of way. There must be real and not a fictitious or
artificial necessity for it.
3. In Costabela vs. CA, 193 S 333, it was held that the gauge for the grant is adequacy and not convenience
4. In Encarnacion vs. CA, 195 S 74, it was held that it is the needs of the dominant property which ultimately
determines the width of the passage.

Sta. Maria v. CA (285 S 351_)

F: there are several estates surrounding Fajardo’s lot. They chose to establish an easement of right of way with
Sta. Maria
H: Easement can be established
Requisites for an estate to be entitled to a compulsory servitude of right of way:
1. the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway;
2. there is payment of proper indemnity;
3. the isolation is not due to the acts of the proprietor of the dominant estate;
4. the right way claimed is at the point less prejudicial to the servient estate; and
5. insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be
the shortest.

Where there are several tenements surrounding the dominant estate, and the estate may be established on
any of them, the one where the route is shortest and will cause the “least damage” will be where the easement is
established.

Bel Air v. Dionisio (3854; 6/30/1989)

F: landowners of Bel Air are automatic member of their association; one member refused to pay the association
fees
H: he must pay
Purchasers of a registered land are bound by the annotation found at the back of the certificate of title
covering the subject parcel of land.
When the petitioner voluntarily bought the subject parcel of land, it was understood that he took the same
free of all encumbrances except notations at the back of the certificate of title, among them, that he
automatically becomes a member of the respondent association. One of the obligations of a member of the
respondent association is to pay certain amount for the operation and activities of the association which is being
collected by the Board of Governors. The dues collected are intended for garbage collection, salary of security
guards, cleaning and maintenance of streets and streetlights and establishments of parks. The amount to be paid
by each lot owner is computed o the basis of the area per sq m of the lot owned by every member.

Costabella v. CA (198 S 333)

F: Costabella closed passageway when it constructed hotel. Pvt. Resp. claimed right over it saying the ancient
road right of way has been existing since WWII
H: discontinuous easement cannot be acquired through prescription
Easement of right of way is discontinuous and as such cannot be acquired by prescription.
The convenience of the dominant estate has never been the gauge for the grant of compulsory right of way.
To be sure, the true standard for the grant of the legal right is adequacy. Hence, where there is already an
existing adequate outlet from the dominant estate to the public highway, even if the said outlet, for one reason
or another be inconvenient, the need to put up another servitude is entirely unjustified.

Ortigas v. FEATI (94 S 533)

F: Contracts stipulate only residential bldg can be constructed, but municipal ordinance was subsequently
issued converting said area into commercial
H: area is commercial
The subject restrictions were subordinate to the Municipal Resolution. While non-impairment of contracts is
no constitutionally guaranteed, the rule is not absolute since it has to be reconciled with the legitimate exercise
of police power. The resolution was passed to safeguard or promote the health, safety, peace, good order and
general welfare of the people in the locality.

NUISANCE

Why is nuisance a modification of ownership?

Ans: Because if your property becomes a nuisance, you can be deprived of its enjoyment and even be
deprived of its ownership. So, if your house is about to collapse and would cause injury to others, then you can
be compelled to demolish your house

NUISANCE (Art 694):

A nuisance is any act, omission, establishment, condition of property or anything else which
1. Injures or endangers the health or safety of the others, or
Page 69 of 82

a. Example: house in danger of falling; explosive factory;

2. Annoys or offends the senses; or
a. Example: too much noise or horn blowing; a chimney which renders a house uninhabitable due to
excessive smoke
3. Shocks, defies or disregards decency or morality, or
a. Note: The standard of morality changes. So what was immoral 20 years ago may not be immoral
today. The third instance then depends on time, place and standard of morality of countries and
people.
b. Example: public exhibition of a naked person, strip-teasing; public display of nude posters
4. Obstructs or interferes with the free passage of any public highway or streets, or any body of water, or
a. Example: houses erected on public streets.
5. Hinders or impairs the use of property.
a. Example: illegal constructions on another's land.

What are the different kinds of nuisance?

Ans: Public or private nuisance (Article 695)

1. Public nuisance = the doing of or the failure to do something that injuriously affects safety, health or morals
of the public, or works some substantial annoyance, inconvenience or injury to the public.
a. It affects a community or neighborhood or any considerable number of persons
b. although the extent of the annoyance, danger or damage upon individuals may be unequal
2. Private nuisance = One which violates only private rights and produces damage to but one or few persons
and cannot be said to be public.
3. Nuisance per se = a nuisance at all times and under all circumstances or conditions.
4. Nuisance per accidens = a nuisance only under certain circumstances or condition.
5. Attractive nuisance = This is any contrivance which is very attractive to children but very dangerous to
them.

~ An attractive nuisance is not illegal. It may be legal or legitimate thing but because of its nature it can
easily injure children. That is why it is called an attractive nuisance. (Example: firearm)
~ If one is an owner of an attractive nuisance, he is required to exercise the highest degree of diligence to
prevent it from being played by children

HIDALGO ENTERPRISES vs. BALANDAN (91 Phil 488)

F: 8-yr old boy drowned in a tank maintained by an ice-plant factory; parents of the boy filed an action for
damages against the factory alleging that the tank full of water was an attractive nuisance and yet the factory did
not provide any precaution.
H: tank was not an attractive nuisance
Water in any form is not an attractive nuisance. Nature in itself created streams, lakes, and pools which
attract children. Lurking in their waters is always the danger of drowning. Against this danger, children are to
know the danger.
The tanks filled with water is not an attractive nuisance. Any imitation of nature, like a swimming pool, is
not an attractive nuisance. So, if the owner of a private property creates an artificial pool on his own property,
merely duplicating the work of nature without adding any new danger, he is not liable.
The factory owner need not exercise the highest degree of diligence since it is not an attractive nuisance.

Who can be liable for damages for the nuisance caused?

The owner or possessor who originally caused the nuisance and the subsequent owner or possessor of the
property is jointly and severally liable.

Article 696: Every successive owner or possessor of property who fails or refuses to abate a nuisance in that
property started by a former owner or possessor is liable therefore in the same manner as the one who created it.

Who are liable? In general:

1. One who creates,
2. All who participate;
3. One who adopts;
4. One who continues a previously existing nuisance;
5. One who refuses to abate nuisance.

If a property which has already caused nuisance is removed, is it a defense?

Ans: (Art 697) No, the abatement of a nuisance does not preclude the right of any person injured to recover
damages for its past existence

May an action for abatement of a nuisance prescribe?

Ans: No, an action for abatement of a nuisance is one which is imprescriptible. A nuisance can be abated
anytime.

Art 698: Lapse of time cannot legalize any nuisance whether public or private.

Art 1143, 2nd par: an action to abate a public or private nuisance is not extinguished by prescription
Page 70 of 82

Art. 699. The remedies against a public nuisance are:

1. A prosecution under the Penal Code or any local ordinance: or
2. A civil action; or
3. Abatement, without judicial proceedings.

Art. 700. The district health officer shall take care that one or all of the remedies against a public nuisance are
availed of.

Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.

Art. 702. The district health officer shall determine whether or not abatement, without judicial proceedings, is
the best remedy against a public nuisance.

What are the remedies against a nuisance?

Ans: It depends on whether it is a public or private nuisance.

1. If it is a PUBLIC NUISANCE, there are 3 possible remedies:

a. CRIMINAL PROSECUTION under the Penal Code or any local ordinance;
i. Note: This remedy is instituted by public officers (ordinarily the mayor)
b. CIVIL ACTION;
c. EXTRA JUDICIAL ABATEMENT (abatement without judicial proceedings) (Article 699);
i. Note: The remedies of civil action and extra-judicial abatement above may be brought by any
private individual if the nuisance is specially injurious to himself
2. If it is a PRIVATE NUISANCE, there are 2 possible remedies:
a. a civil action, or
b. abatement, without judicial proceedings (Article 705)

Art. 703. A private person may file an action on account of a public nuisance, if it is specially injurious to
himself.

Art. 704. Any private person may abate a public nuisance which is specially injurious to him by removing, or if
necessary, by destroying the thing which constitutes the same, without committing a breach of the peace, or
doing unnecessary injury. But it is necessary:
1. That demand be first made upon the owner or possessor of the property to abate the nuisance;
2. That such demand has been rejected;
3. That the abatement be approved by the district health officer and executed with the assistance of the local
police; and
4. That the value of the destruction does not exceed P3,000.

What are the requisites for the abatement of nuisance, whether public or private, without judicial
proceedings? (Art 703 and 704)
Ans: The requisites are the following
1. there must be showing that the nuisance is specially injurious to the person seeking the abatement of
nuisance (Article 703),
2. that demand be first made upon the owner or possessor of the property to abate the nuisance;
3. that such demand has been rejected or ignored;
4. that the abatement must be approved by the City Engineer in Manila and other chartered cities, and in the
provinces, by the Provincial Health Officer and executed with the assistance of or attended by a member
of the local police force;
5. that the abatement must be done in such a way that it does not breach public peace, or do unnecessary
injury; and
6. that the value of the thing to be abated does not exceed P3,000

~ Criminal prosecution is not mentioned. However, if a crime has been committed as defined in the Revised
Penal Code, criminal prosecution can proceed.
~ If the nuisance to be abated is more than P3,000, it cannot be abated without judicial proceedings. It can be
abated only through a criminal or civil action in court as the case may be.

Art. 705. The remedies against a private nuisance are:

1. Civil action; or
2. Abatement, without judicial proceedings.

Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary, by destroying the
thing which constitutes the nuisance, without committing a breach of the peace or doing unnecessary injury.
However, it is indispensable that the procedure for extrajudicial abatement of a public nuisance by a private
person be followed.

Art. 707. A private person or a public official extrajudicially abating a nuisance shall be liable for damages:
1. If he causes unnecessary injury; or
2. If an alleged nuisance is later declared by the courts to be not a real.
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When may a private person or a public officer extra judicially abating a nuisance liable for damages?
Ans: Art 707 provides that a private person or public officer extra-judicially abating a nuisance is liable for
damages in these instances:
1. If he causes unnecessary injury: or.
2. If an alleged nuisance is later declared by the courts to be not a real nuisance

PP vs. de Guzman, et. al., 90 Phil. 132

F: lumber yard owners question the constitutionality of an ordinance which converted their area into a
residential one – compelling them to move their establishments
H: ordinance is valid
The passage of the ordinance was prompted by a desire to abate nuisances resulting from the operation of
lumber yards within the residential zones and this falls under legitimate exercise of police power of the
municipal council. The restricted zone is admittedly in the center of the poblacion of Lucena and it is just to
assume that the lumberyards may exist therein without necessarily coming very near residential areas.

Espiritu vs. Municipal Council, 102 Phil 867

F: Bec. the market was destroyed by war, market vendors built makeshifts stalls in the town plaza. Market was
subsequently restored, but these vendors refused to leave the plaza
H: vendors are considered nuisance
The town plaza cannot be used for the construction of market stalls, specially of residences and that such
structures constitutes a nuisance subject to abatement according to law. Town plazas are property of public
dominion to be devoted for public use and to be made available to the public in general. While in cases of war
or during an emergency, town plaza may be occupied temporarily by private individuals; as in this case when
the emergency has ceased, the temporary occupation or use must be kept in open to the public and free from
encumbrance as in illegal private construction.

Iloilo Cold Storage vs. Mun. Council, 24 Phil. 471

F: smoke emitted by the ice plant is injurious to health, thus the municipal council declared the ice plant a
nuisance
H: Authority to decide when a nuisance exists is a judicial function.
A nuisance which affects the immediate safety of persons or property, or which constitutes an obstruction to
the streets and highways under circumstances presenting an emergency, may be summarily abated under the
undefined law of necessity. But in any case, the declaration of the municipal council that the thing or act is
nuisance is not conclusive. The owner of the alleged nuisance has the right to test the validity of the action of
the council in a court of law.
If no compelling necessity requires the summary abatement of a nuisance, the municipal authorities, under
their power to declare and abate nuisances, do not have the right to compel the abatement of a particular thing
ordered as a nuisance without reasonable notice to the person alleged to be maintaining or doing the same of the
time and place of hearing before a tribunal authorized to decide whether such a thing or act does in law
constitute a nuisance.
A city cannot burden the property of a citizen with the cost of abating a nuisance per accidens without a
judicial hearing and judgment as to its existence. Injunction lies to restrain a city from proceeding with the
abatement of a nuisance per accidens before it has been judicially declared to be such.

Canlas vs. de Aquino, 2 SCRA 814

F: Tayag wants to construct a rice mill in front of Canlas Clinic. Canlas filed a preliminary injunction to enjoin
the construction of the rice mill. Tayag maintains that he can fully compensate Canlas for any damages, thus,
upon the filing of P2T bond, the court cancelled the writ of injunction.
H: closing of the hospital cannot be fully compensated by Tayag
It is obvious that the operation of a hospital is a matter that, not only concerns its owners or operators, but
also, if not more particularly, affects the health and welfare of the community, and that the damage sustained by
the latter, in consequence, either of the obstruction to the proper operation of said hospital or of its closing, can
not possibly be compensated in full. The main action filed by the petitioners is for the purpose of enjoining and
prohibiting Tayag from constructing a rice mill, so that, upon the construction thereof, said action would
become futile.

San Rafael vs. City of Manila, 46 SCRA 40

F: civic groups filed an injunction to enjoin municipal from bidding for an incinerator-thermal plant (for
garbage disposal)
H: axn is premature since it is not year clear that pollution will result
The injunction will not prosper. It is entirely pointless to go into an academic discussion of the relative
merits of the composting and the incineration methods of garbage and refuse disposal for purposes of deciding
whether or not at this stage, prohibition should issue to stop the bidding called for by the respondents.
The instant petition for that purpose is premature. These will not substitute its judgment for the city officials
even before the bidding is begun and on a purely theoretical basis. Rule is that the bids submitted should not be
opened, or if opened should not be accepted, because not one of the plants therein offered to be established
would serve the purpose envisaged and because, if so established, it would so pollute the environment as to
Page 72 of 82

constitute a nuisance. If and when such result becomes a reality, or at least an imminent threat, that will be the
time the petitioners may come to court.

Velasco vs. Manila Electric, 40 SCRA 342

F: a substation was constructed beside Velasco’s house. He contended that it is a nuisance because of the noise
coming from it and asked damages
H: sound constitutes an actionable nuisance
The sound in this case constitutes an actionable nuisance. The general rule is that everyone is bound to bear
the habitual or customary inconveniences that result from the proximity of others. It becomes actionable when
the noise which affects injuriously the health or comfort of ordinary people in the vicinity to an unreasonable
extent. What those limits are cannot be fixed by any definite measure of quantity or quality. They depend upon
the circumstances of the particular case.
The test is wether rights of property, or health or of comfort are so injuriously affected by the noise in
question that the sufferer is subjected to a loss which goes beyond the reasonable limiits imposed upon him by
the condition of living, of holding property, in a particular locality in fact devoted to uses which involve the
emission of noise although ordinary care is taken to confine it within reasonable bounds.

Ramcar vs Millar, 6 SCRA 517

F: ordinance allows the construction of “garage” within the area but Ramcar also maintains an auto repair and
body building shop. Residents around the area asked that such be declared nuisance. CA held that the
establishment was a nuisance per se
H: the shop was not a nuisance per se
It is only on account of its location that it is a public nuisance. The operation of a car shop violated the city
ordinance. A car body-building shop is not within the purview of "garage", which designates a shop for storing,
repairing, and servicing motor vehicles, the "garage" being merely a modern substitute for the ancient livery
stable. The term "repair" presupposes decay, dilapidation, injury, or partial destruction of the repaired element;
that is, bringing back broken or damged parts of a structural whole to their original condition. It cannot apply to
the building or remodeling of bodies or structures. To abate it however, it is not necessary, as the appealed
decision decrees, to remove all buildings and structures built in the place where it is presently located, as these,
or parts thereof, may be utilized for pursuits that are not forbidden by law or ordinance.

DIFFERENT MODES OF ACQUIRING OWNERSHIP:

Art. 712. Ownership is acquired by:

1. occupation and
2. intellectual creation.
Ownership and other real rights over property are acquired and transmitted:
1. by law
2. by donation
3. by estate and intestate succession, and
4. in consequence of certain contracts, by tradition.
They may also be acquired by means of prescription.

Modes of acquiring ownership:

1. Original modes (ownership is acquiring for the first time ),
a. Occupation (hunting, fishing, hidden treasure);
b. Intellectual Creation (books, copy rights, patents, letters ):

2. Derivative mode (there is merely a transfer of ownership; somebody else was the owner before):
a. Succession;
b. Donation,
c. Prescription; (Art 1106 )
d. Law (Arts. 158. 445, 461, 465, 466, 681,1434,1456 - NCC )
e. tradition (meaning: legal delivery actual/ constructive) as a consequence of certain contracts (i.e.: sale,
barter, assignment, simple loan or mutuum)

Mode
The process of acquiring or transferring ownership

Title
That which is not ordinarily sufficient to convey ownership, but which gives a juridical justification for a
mode, that is, it provides the cause for the acquisition of ownership.

Example:
If A sells to B a specific car for a specific amount, the sale is the title, by virtue of such title, A should now
deliver the property to B. It is the delivery or tradition that makes B the owner, it is the tradition that is the
mode.

OCCUPATION
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Art. 713. Things appropriable by nature which are without an owner, such as animals that are the object of
hunting and fishing, hidden treasure and abandoned movables, are acquired by occupation.

Occupation
The acquisition of ownership by SEIZING corporeal things that have no owner, made with the intention of
acquiring them, and accomplished according to legal rules.

Occupation Possession
can take place only with respect to property without can refer to all kinds of property whether with or
an owner without an owner
in itself when proper confers ownership does not by itself give rise to ownership

Requisites for occupation:

1. There must be a seizure or apprehension (the material holding is not required as long as there is right of
disposition)
2. The property seized must be corporeal (personal) properly,
3. The property seized must be susceptible of appropriation (either unowned or abandoned property),
4. There must be intent to appropriate;
5. The requisites or conditions of the law must be complied with (i.e. good faith; proper title; legal period of
time)

Art 714: The ownership of a piece of land cannot be acquired by occupation

Reasons:
1. because a land that is not shown to belong to anyone is presumed to be a public land;
2. occupation as a mode of acquiring ownership refers to movable which are either considered as res nullius
or res derelicta

Finding of lost movable:

Art. 719. Whoever finds a movable, which is not treasure, must return it to its previous possessor. If the latter is
unknown, the finder shall immediately deposit it with the mayor of the city or municipality where the finding
has taken place.
The finding shall be publicly announced by the mayor for 2 consecutive weeks in the way he deems best.
If the movable cannot be kept without deterioration, or without expenses which considerably diminish its
value, it shall be sold at public auction 8 days after the publication.
6 months from the publication having elapsed without the owner having appeared, the thing found, or its
value, shall be awarded to the finder. The finder and the owner shall be obliged, as the case may be, to
reimburse the expenses.

Art. 720. If the owner should appear in time, he shall be obliged to pay, as a reward to the finder, 1/10 of the
sum or of the price of the thing found.

INTELLECTUAL CREATION:

Intellectual creation
The product of mental labor embodied in writing or some other material form.

Art 721. By intellectual creation, the following persons acquire ownership:

1. The author with regard to his literary, dramatic, historical, legal, philosophical, scientific, or other work;
2. The composer, as to his musical composition;
3. The painter, sculptor, or other artist, with respect to the product of his art;
4. The scientist or technologist or any other person with regard to his discovery or invention.

Art. 722.
1. The author and the composer, shall have the ownership of their creations even before the publication of
the same. Once their works are published, their rights are governed by the Copyright laws.
2. The painter, sculptor or other artist shall have dominion over the product of his art even before it is
copyrighted.
The scientist or technologist has the ownership of his discovery or invention even before it is patented.

~ Ownership before publication - exclusive;

~ Ownership after publication = no more exclusive right except when work is copyrighted.
~ Note: Mere circulation among close friends and associates however, is not considered publication

Art 723: Letters and other communications in writing are owned by the person to whom they are addressed and
delivered, but they cannot be published or disseminated without the consent of the writer or his heirs. However,
the court may authorize their publication or dissemination if the public good or the interest of justice so
requires.

Rules
1. The physical or material object is owned by the person to whom it has been sent;
Page 74 of 82

2. The thoughts, ideas and form of expression contained in the letter belong to the sender or author of the
letter
3. The recipient cannot publish or disseminate the letter, unless
(a) the writer or the writer’s heirs consent;
(b) the public good or the interest of justice so requires as when the:
(1) the publication is necessary for the vindication of the character of the person to whom the letter is
addressed,
(2) letter is produced as evidence in court, in the course of the administration of justice, except when the
letter constitutes a privileged communication and cannot be admitted in evidence without the
consent of the writer.

Copyright:

Nature of Copyright:
1. It is the exclusive right secured by law to an author or his assigns to multiply and dispose of copies of an
intellectual or artistic creation
2. It is an incorporeal right to print and publish, and exist independent of the corporeal property out of which
it arises.

Objectives of copyright:
1. to encourage individuals to intellectual labor by assuring them of just rewards.
2. to secure the society of the larger benefit of their products

What may be copyrighted?

Ans: Sec 2 PD 49
1. Literary and Artistic Works (Original Intellectual Creations)
a. They are protected by the mere fact of their creation, irrespective of:
 the mode or form of expression
 purpose, content or quality
b. Ownership exclusively belongs to the author of the original intellectual creation
2. Derivative Works
 Alterations of original works
a. Conditions for the Copyrighting of Derivative Works
 If a copyright is existing for the original work, the new copyright must not alter any subsisting rights
under the original copyright
 The new work shall not be construed to imply any right to such use of the original works
 It does not extend the life of the original copyright – period of the original copyright must expire

Right of a copyright owner:

1. to print, reprint, publish, copy, distribute, multiply, sell and make photographic illustration of the
copyrighted work;
2. to make translations or other versions or extracts or arrangements or adaptations thereof.
3. to exhibit, perform, represent produce or reproduce the copyright work,
4. to make any other use or disposition of the copyrighted work.

Extent of the protection:

~ Concepts, theories, speculations, abstracts of ideas however original they may be are not covered by the
protection, because there is no monopoly of theories and speculations of an author.
o He may transfer these theories of ideas into intellectual products as books, letters or any form of
writing or illustration.
o These are exclusively his.
~ But once caused to be published, his exclusive right over the same ceases, except when copyrighted.
o But the protection extends only in so far as the form, language or style of the production are concerned
and not theories or the ideas themselves.
o So that when one copies the form, style and language, there is infringement.
o It should be a copy of the original but similarity alone is not sufficient, what is important though is the
copy is so near to the original as to give to every person seeing it the idea created by the original.
~ Copyright does not extend to the general concept or format of a dating game show.

JOAQUIN vs. DRILON |G R. No 108946, January 28, 1999]

F: Joaguin holds a Certificate of Copyright of a TV dating game show, “Rhoda and Me.” RPN copied the
format and style thereof in its show, "It's a Date.”
H: the format of a show is not copyrightable
The format or mechanics of a television show is not included in the list of protected works in Sec 2 of P.D.
No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.
Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted
by the statute, and not simply a pre-existing right regulated by the statute. Being a statutory grant, the rights are
only such as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the
persons, and on terms and conditions specified in the statute.
P.D No. 49, S2, in enumerating what are subject to copyright, refers to finished works and not to concepts.
The copyright does not extend to an idea, procedure, process, and system, method of operation, concept,
Page 75 of 82

principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in
such work
Thus, the new INTELLECTUAL PROPFRTY CODE OF THE PHlLlPPINES provides: SECTION 175.
Unprotected Subject Matter - Notwithstanding the provisions of Section 172 and 173, no protection shall
extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or
mere data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the days
and other miscellaneous facts having the character of mere items of press information; or any official text of a
legislative, administrative or legal nature, as well as any official translation thereof.
Cinematographic works and works produced by a process analogous to cinematography or any process for
making audio-visual recordings…“

The copyright does not extend to the general concept or format of its dating game show. Accordingly by the
very nature of the subject of petitioner BJPI’s copyright, the investigating prosecutor should have the
opportunity to compare the videotapes of the two shows.
Mere description by words of the general format of the two dating game shows in insufficient the
presentation of the master videotape in evidence was indispensable to the determination of the existence of
probable cause. As aptly observed by respondent Secretary of Justice: A television show includes more than
mere words to describe it because it involves a whole spectrum of visuals and effects, video and audio, such that
no similarity or dissimilarity may be found by merely describing the general copyright/ format of both dating
game shows.

Remedies in case of infringement:

1. damages;
2. injunction;

Effect of expiration:
On the final expiration of the copyright term, the whole work falls into the public domain and becomes free
and unrestricted.

TRADEMARKS

1. “Mark" - any visible sign capable of distinguishing the goods (trademark) or services (service mark) of an
enterprise and shall include a stamped or marked container of goods;
a. including holograms, although they are not so visible but still the can be seen
2. "Collective mark" - any visible sign designated as such in the application for registration and capable of
distinguishing the origin or any other common characteristic, including the quality of goods or services of
different enterprises which use the sign under the control of the registered owner of the collective mark;
a.1 company w/ many products
3. "Trade name" - the name or designation identifying or distinguishing an enterprise;
4. Trademark – name or symbol of goods made or manufactured
5. Trade name – name of symbol of a store, business or occupation
6. Service mark – name or symbol of business rendered

SIMILARITY TEST:
To determine whether a trademark has been infringed, the mark as a whole must be considered and not as
dissected. If the buyer is deceived, it is attributable to the marks as a totality, not usually to any part of it [Del
Monte Corporation vs. Court of Appeals,181 SCRA410]

DISSIMILARITY TEST [or the so-called "visible difference test"]:

In the case of Asia Brewery vs. CA (224 SCRA 437), the SC applied the "dissimilarity test or "visible
difference test" in determining whether or not there exists unfair competition.

Asia Brewery vs. CA (224 SCRA 437)

F: San Miguel filed an infringement case against Beer na Bear
H: no infringement
While the Supreme Court did not abandon the "similarity test", it nevertheless, qualified the same when it
applied the "visible difference test" especially so when the dissimilarities abound.
Besides the dissimilarity in their names, the following other dissimilarities in the trade dress or appearance
of the competing brands abound:
1. The SAN MIGUEL PALE PILSEN bottle has a slender tapered neck. The BEER PALE PILSEN bottle has
a fat, bulging neck.
2. The words "pale pilscn on SMC's label are printed in bold and laced letters along a diagonal band, whereas
the words "pale pilsen" on ABI’s bottle are half the size and printed in slender block letters on a straight
horizontal band;
3. The names of the manufacturers arc prominently printed on their respective bottles. SAN MIGUEL PALE
PILSEN is "Bottled by San Miguel Brewery Philippines," whereas BEER PALE PILSEN is "Especially
brewed and bottled by Asia Brewery Incorporation, Philippines;
4. On the back of ABI’s bottle is printed in big, bold letters, under a row of flower buds and leaves, its
copyrighted slogan: “BEER NA BEER!” Whereas SMC's bottle carries no slogan;
5. the back of the SAN MIGUEL PALE PILSEN bottle carries the SMC logo, whereas the BEER PALE
PILSEN bottle has no logo;
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6. The SAN MIGUEL PALE PILSEN bottle cap is stamped with a coat of arms and the words "San Miguel
Brewery Philippines" encircling the same. The BEER PALE PILSEN bottle cap is stamped with the
name "BEER" in the center, surrounded with the words "Asia Brewery Incorporated Philippines;
7. Finally, there is a substantial price difference between BEER PALE PILSEN (currently at P4.25 per bottle)
and SAN MIGUEL PALE PILSEN (currently at P7.00 per bottle). One who pays only P4.25 for a bottle
of beer cannot expect to receive San Miguel Pale Pilsen from the storekeeper or bartender."

The Supreme Court deviating from the Del Monte ruling, further said : “The ruling may not apply to all
kinds of products. In resolving cases of infringement and unfair competition, the courts should take into
consideration several factors which would affect its conclusion, to wit: the age, training and education of the
usual purchaser, the nature and cost of the article, whether the article is bought for immediate consumption and
also the conditions under which it is usually purchased.
The Del Monte case involved catsup, a common household item which is bought off the store shelves by
housewives and house help who, if they are illiterate and cannot identify the product by name or brand, would
very likely identify the product by mere recollection of its appearance. Since the competitor, Sunshine Sauce
Mfg. Industries, not only used recycled Del Monte bottles for its catsup (despite the warning embossed on the
bottles “Del Monte Corporation. Not to be refilled”) but also used labels which were a 'colorable imitation’ of
Del Monte's label, we held that there was infringement of Del Monte’s trademark and unfair competition by
Sunshine.
Our ruling in Del Monte would not apply to beer which is not usually picked up from the store shelf but
ordered by brand by the beer drinker himself from the storekeeper or waiter in a pub or restaurant."

Doctrine of Secondary Meaning

A word or phrase originally incapable of exclusive appropriation may be registered by a manufacturer if it
has been used so long and so exclusively by one producer with reference to his article, that in that trade and to
that branch of the purchasing public, the word or phrase has come to mean that the article was his product.

Unfair Competition
~ Passing off one’s goods as those made by another contrary to good faith
~ TEST: imitation or similarity such that average customer may be deceived

Infringement of Trademark = use of a mark without the consent

Ang v. Teodoro (48226; 12/14/1942)

F: Teodoro used “Ang Tibay” as trademark and tradename for his slippers, shoes. Ang used “Ang Tibay” for
pants. Ang contends that Teodoro cannot register “Ang Tibay” since it is a descriptive phrase
H: doctrine of secondary meaning; Teodoro has exclusive use of words “Ang Tibay”
An inquiry into the etymology and meaning of “Ang Tibay” shows that the phrase is never used adjectively
to define or describe an object. It is therefore, not a descriptive term within the meaning of the Trade-mark Law
but rather a fanciful or coined phrase which may properly and legally be appropriated as a trade-mark or trade-
name.
The function of a trademark is to point distinctively either by its own meaning or by association, to the
origin or ownership of the wares to which it is applied.
The test employed by the courts to determine whether non-competing goods are or are not of the same class
is confusion as to the origin of the goods of the second user. Although two non-competing articles may be
classified under two different classes by the Patent Office because they are deemed not to possess the same
descriptive properties, they would nevertheless be held by the courts to belong to the same class if the
simultaneous use on them of identical or closely similar trademarks would be likely to cause confusion as to the
origin, or personal source, of the second user’s goods. They would be considered as not falling under the same
class only if they are so dissimilar or so foreign to each other as to make it unlikely that the purchaser would
think the first user made the second user’s goods.

Hang and Dee v. Wellington Dept Store (L-4531; 1/10/1953)

F: Chua registered “Wellington” as his company’s name – Wellington Dept Store, Inc. Hang objected as he is
using the same word for his shirts, pants, etc. manufacture by him
H: “Wellington” cannot be registered
No confusion or deception can possible result or arise from such similarity because the latter is a “dept
store” while the former does not purport to be so.
Mere geographical name are ordinarily regarded as common property, and it is a general rule that the same
cannot be appropriated as the subject of an exclusive trademark or trade name. Even if Wellington were a
surname, it cannot be validly registered as a trade name, it not being the name of the plaintiffs.
As the term cannot be appropriated as a trademark or a trade name, no action for violation thereof can be
maintained as none is grated by the statute in such cases. The right to damages and for an injunction for
infringement of a trademark or a trade name is granted only to those entitled to the exclusive use of a registered
trademark or trade name.

Lim Hoa vs. Director of Patents (100 Phil. 214) in relation to Etepha vs Director, 16 SCRA 495
The court differentiated food seasoning product, a kitchen article of daily consumption, from commodities
or articles of relatively great value, such as radio and television sets, air-conditioning units, machinery, etc.,
where the prospective buyer generally the head of a family or a businessman, before making the purchase, reads
the pamphlets and all literature available, describing the article he is planning to buy and perhaps even makes
comparisons with similar articles in the market. He is not likely to be deceived by similarity in the trademarks
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because he makes a more or less study of the same and may even consult his friends about the relative merit and
performance of the article or machinery, as compared to others also for sale.

DONATIONS
Article 725: Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor
of another who accepts it.

Essential requisites:
1. the reduction in the patrimony of the donor;
2. the increase in the patrimony of the donee;
3. the intent to do an act of liberality.

~ When a person gets a life insurance and names a third person as his beneficiary, and the insurance becomes
payable by the death of the insured, there is a donation in favor of the beneficiary – not in the sum
received by him from the insurer, but in the total amount of premiums that have been paid by the insured.
This is the only amount that leaves the patrimony.
~ If the amount of premiums, however, exceeds the insurance, there is donation only to the extent of the
insurance. This is the only amount that is added to the patrimony of the donee.

Art. 726. When a person gives to another a thing or right

1. on account of the latter's merits or
2. of the services rendered by him to the donor,
3. provided they do not constitute a demandable debt, or
4. when the gift imposes upon the donee a burden which is less than the value of the thing given,
there is also a donation.

Classification of donations:
1. simple - the cause is pure liberality (no strings attached);
2. remuneratory (to reward past services which do not constitute demandable debt)
3. Conditional or Modal when the donation imposes upon the donee an obligaton in favor of the donor himself
or a third person or even the public.

Example #2:
~ a donation to one who saved the donor's life
~ The phrase "they do not constitute a demandable debt" (Article 726) means that the service which was
rendered did not produce an obligation demandable against the donor, or if it had, such obligation has
been renounced in favor of the donor.
~ A agreed to review B for the bar examinations for a fee of P10,000. Later, B passes the bar examination,
and as a gratitude gives A a parcel of land worth P20,000. The remuneratory donation here is only with
respect to the excess of P10,000 because, the services of A constitute a demandable debt, unless, A in the
meantime renounces his fees and in such case, there is donation to the extent of P20,000.

Example #3:
A piece of land is donated to the city in order that it may be converted into a park or public market.

Form to be followed:
~ in simple / remuneratory donations - form of donations
~ onerous donations – contracts

Art. 727. Illegal or impossible conditions in simple and remuneratory donations shall be considered as not
imposed.

~ It is supposed to be simple (no string attached), why is there a need to have a condition, much less,
impossible?
~ If the condition is not void, then the donation is not really simple, for it has a burden imposed upon the
donee.
~ What is voided here is the impossible condition and not the donation itself.

Art. 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary
provisions, and shall be governed by the rules established in the Title on Succession.

Art. 729. When the donor intends that the donation shall take effect during the lifetime of the donor, though the
property shall not be delivered till after the donor's death, this shall be a donation inter vivos. The fruits of the
property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides
otherwise.
As to: Donations Inter Vivos Donations Mortis Cause
The time it takes effect During the lifetime of the donor After the death of the donor

Formalities Must follow the formalities of Must follow the formalities of wills or
donations (if ordinary and simple) codicils (holographic or notarial)
Whether it can be No, except for grounds provided by Yes, at anytime for any reason while
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revoked law the donor is alive

When the legitime is Preferred over a donations mortis
impaired causa (priority in time is priority in
right)
Whether the donee can Yes, the right of disposition is
dispose of the donation completely transferred to the donee,
although certain reservations such
usufruct may be made
Acceptance Acceptance by the donee must be
done during the lifetime of the donor
Reduced ahead of a donation inter
vivos since it is really a legacy or
devise
NO, the right of disposition is NOT
transferred to the donee while the
donor is alive
Acceptance by the donee can only be
done after the donor’s death and any
prior acceptance is void

Effect of the fulfillment of the suspensive condition beyond the lifetime of the donor.
Art. 730. The fixing of an event or the imposition of a suspensive condition, which may take place beyond
the natural expectation of life of the donor, does not destroy the nature of the act as a donation inter vivos,
unless a contrary intention appears.

Example:
A donates a piece of land to B on the condition that X, A’s son becomes a lawyer. The fulfillment of the
condition even after the death of the donor does not affect the nature of the donation as inter vivos. The
fulfillment retroacts to the time of the donation.

Article 731: When a person donates something, subject to the resolutory condition of the donor’s survival,
there is donation inter-vivos.

Note: Fulfillment of a resolutory condition, its effect.

Example: A was about to undergo a delicate operation. He donated to B a parcel of land subject to the
condition that if A survives the operation, B’s ownership over the land would terminate, and the same would
revert to A. But if A dies, there is donation inter vivos not mortis causa.

WHEN DONATION IS PERFECTED:

Article 734: The donation is perfected from the moment the donor knows of the acceptance by the donee:

Article 746: Acceptance must be made during the lifetime of the donor and the donee.

WHO MAY DONATE:

Art 735. All persons who may contract and dispose of their property may make a donation.

Art 737: The donor's capacity shall be determined as of the time of the making of the donation.

~ The phrase "as of the time of the making of the donation” should really mean "as of the time of the
perfection of the donation.” So that, a physically incapacitated person (i.e. unemancipated minors
or insane) may still donate provided that at the time of his knowledge of the acceptance by the
donee, the incapacity is not present. Although, it is submitted that the donation is voidable
following the law on contracts which are suppletory to simple donation – as in vitiated consent.
~ The capacity of the donee is determined at the time of the perfection of the donation (at the time he
makes known to the donor his acceptance of the donation).

Capacity of the Husband or the Wife:

Husbands or wives may donate their own capital or paraphernal properties without the consent of the
other. But with respect to conjugal or community property, they cannot make donations without the consent
of the other, except, moderate donations for charity or on occasion of family rejoicing or family distress (Art
98 and 125; 113-115 FC)

May husbands and wives donate to each other?

Ans: Art 87 of the Family Code: Every donation or grant of gratuitous advantage, direct or indirect,
between the spouses during the marriage shall be void, except moderate gifts which the spouses may give
each other on the occasion of any family rejoicing. The prohibition shall also apply to person living together
as husband and wife without a valid marriage.

~ Reason: To protect the creditors and the weaker spouse from the dominance of the other.
~ What is moderate is relative. This may be determined based on the financial status of the family.

Capacity of a minor:
For purposes of marriage, a person may contract marriage at the age of 18 years.

May he enter into a marriage settlement wherein he may dispose of his future property in favor of his
prospective spouse without the intervention of the parents?
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Ans: Art 78 (in relation to Art. 234 and 236) of the Family Code which requires that the parents are
required to be made parties to the marriage settlements was impliedly repealed by RA 6809 wherein the
marriage settlements may now be entered by the child personally even without the intervention of the
parents.

Read also: Donations by reason of marriage - Arts. 82, 87, Family Code

What may be donated:

Art 750: The donation may comprehend all present property of the donor, or part thereof; provided he
reserves in full ownership or in usufruct, sufficient means for the support of himself, and all of relatives who
at the time of the acceptance of the donation, are by law entitled to be supported by the donor. Without such
reservation, the donation shall be reduced on petition of any person affected.

~ The donation may comprehend all present property, meaning that which the donor can dispose of at the
time of the donation but in all instances, the donor cannot give more than what he can give by will
(meaning, a person cannot give more than what the giver can give by virtue of a will). Otherwise, the
donation is considered inofficious.
~ The sufficiency can be determined by the court in accordance with the prudence and the exercise of
reasonable discretion.
~ Excessive or inofficious donation is not void but merely reducible.
~ Donations cannot comprehend future property (Article 751), because he cannot give what he does not
have, except in case of contractual succession and donations by reason of marriage (Art 84, FC)

Art. 751. Donations cannot comprehend future property.

By future property is understood anything which the donor cannot dispose of at the time of the donation.

FORMALITIES OF A DONATION:

Art. 749. In order that the donation of an immovable may be valid, it must be made in a public document,
specifying therein the property donated and the value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall
not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form,
and this step shall be noted in both instruments.

With respect to IMMOVABLE property (Art 749 )

1. the donation must be in a PUBLIC DOCUMENT;
2. the acceptance must also be in a PUBLIC DOCUMENT

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

An oral donation requires the simultaneous delivery of the thing or of the document representing the right
donated.
If the value of the personal property donated exceeds P5,000, the donation and the acceptance shall be
made in writing, otherwise, the donation shall be void.

With respect to MOVABLE property:

1. if value of the thing is more than P5,000;
a. must always be in writing, so with the acceptance
2. if the value of the thing is P5,000 or less:
a. may be oral but simultaneous delivery of the thing and the document representing the right donated is
required;
b. may be in writing;
3. in both instances (where the donation is either oral or written), the acceptance may be made orally
(express or implied ) or in writing

Art. 739. The following donations shall be void:

1. Those made between persons who were guilty of adultery or concubinage at the time of the donation;
2. Those made between persons found guilty of the same criminal offense, in consideration thereof;
3. Those made to a public officer or his wife, descendants and ascendants, by reason of his office.
In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the
donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the
same action.

(impt) SPECIAL DISQUALIFICATION: (Art 739 and 740)

1. Those made between persons who are guilty of adultery or concubinage at the time of the donation
a. this refers to donations between paramours:
b. there is no necessity of proving the guilt in a criminal proceedings, it is enough that the guilt may be
proven by a preponderance of evidence in a civil action for the declaration of nullity of the
donation
c. the commission of the adultery or concubinage must be at the time of the donation and not after;
Page 80 of 82

d. when the purpose of the donation is to initiate, continue, resume or compensate the illicit relations
between the paramours, the donation is void. But if the intention is to indemnify the damage caused
to the other at the time of separation, the donation is valid.
2. Those made between persons found guilty of the same offense, in consideration thereof;
a. If a person agrees to kill another in consideration of a donation to be made in his favor, the donation
is void. Here, since the consideration is illegal, the donation must necessarily be void; there must
be a conviction;
3. Those made to a public officer or his spouse, descendants or ascendants by reason of his office
a. The purpose for the rule is to prevent bribery; the donation is void by reason of public policy

Article 740: Incapacity to succeed by will shall be applicable to donations inter-vivos. (relative incapacity)

The following persons are disqualified:

1. the priest who heard the confession of the donor during his last illness, or the minister of the gospel who
extended spiritual aid to him during the same period;
2. the relatives of such priest or minister of the gospel within the 4th civil degree, the church, the order,
chapter, community, organization, or institution to which such priest or minister belongs;
3. a guardian with respect to donations made by a ward in his favor before the final accounts of the
guardianship have been approved, even if the donor should die after the approval thereof;
a. nevertheless any donation made by the ward in favor of the guardian when the latter is his
ascendant, descendant, brother, sister, or spouse, shall be valid;
4. any physician surgeon, nurse, health officer, or druggist who took care of the donor during his last
illness,
5. individuals, associations and corporations not permitted by law to receive donations.

~ The incapacity to inherit by reason of unworthiness provided in Article 1032 is not included within the
scope of the above article.
~ A donation made to a person who falls under the provisions of said article would be valid, because a
testamentary provision made in favor of such person after the testator has knowledge of the act of
unworthiness would constitute pardon under Article 1033.
~ On the other hand, if the donation has already been made when the cause of unworthiness occurs, the
donation is not revoked only by the causes mentioned in Articles 760, 764 and 765.

RULES IN CASES OF DOUBLE DONATIONS: (Apply the rule on double sales, Art 1544, NCC)
1. movable property = the ownership shall be transferred to the donee who have first taken possession
thereof in good faith;
2. immovable property = the ownership shall belong to the donee who first recorded it in the registry of
property.
3. if there he be inscription, the ownership shall pertain to the donee who in good faith was the first in the
possession; and in the absence thereof, to the donee who presents the oldest title, provided there is
good faith.

REVOCATION AND REDUCTION OF DONATIONS:

Article 760: Every donation inter-vivos made by a person having no children or descendants, legitimate or
legitimated by subsequent marriage, or illegitimate, may be revoked or reduced by the happening of any of
these events:
1. If the donor, after the donation, should have legitimate or legitimated children, even though they are
posthumous,
2. If the child of the donor whom the latter believed to be dead when he made the donation, should turn out
to be living;
3. If the donor should subsequently adopt a minor child.

When the revocation should take effect:

1. The donation is revoked or reduced by the happening of any of the events enumerated in Article 760. In
other words, the revocation or reduction takes place ipso jure.
a. No action is necessary to revoke or reduce the donation winch is already considered by law as
revoked.
b. Court action is necessary however, when the donee refuses to return the property. In such case, the
decision of the court will be merely declaratory of the revocation - it will not be a revocatory act.
2. Birth, reappearance and adoption (BRA) as causes for the revocation or reduction.
a. The article seeks to protect the presumptive legitimate or the expected legitime of the heir
3. The value of the estate is to be considered at the time of the birth, reappearance or adoption;
4. The action to reduce must be brought within 4 years. (Art 763) This action cannot be renounced.
5. The article applies only to donation inter vivos and not only to;
a. donations propter nuptias (which can be revoked only for causes enumerated by law);
b. onerous donations (for these are really contracts);
c. mortis cause (for this is revocable for any or no cause ).

Art. 763. The action for revocation or reduction on the grounds set forth in Art. 760 shall prescribe after 4
years:
1. from the birth of the first child, or
2. from his legitimation, recognition or adoption, or
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3. from the judicial declaration of filiation, or

4. from the time information was received regarding the existence of the child believed dead.
This action cannot be renounced, and is transmitted, upon the death of the donor, to his legitimate and
illegitimate children and descendants.

ILLUSTRATION:
X has no child. At the time he gave the donation of P10,000, he had P100,000. Therefore, after the
donation, he had P90,000 left. Later, he adopted a minor child. At the same time he made the adoption he
had only P5,000 left. Should the donation be reduced? If so, how much?

Note: The value of the estate is to be considered at the time of the birth, reappearance, or adoption:

Donation 10,000
Property left at the time of adoption 5,000
Total value of estate 15,000

Legitimate = P 15,000 x ½ = P7,500.00

Since the value of the estate is only P5,000, the donation must be reduced by P2,500.00.

Cruz vs. CA, 140 SCRA 245

F: Cruz, a childless widow executed a donation of a residential lot to her grandnieces. She subsequently
adopted a child and tried to revoke the donation. The grandnieces opposed
H: donation cannot be revoked bec. the complaint for annulment does not allege that the donation impairs
the legitime of the adopted child
In the case of the subsequent adoption of a minor by one who had previously donated some or all of his
properties to another, the donor may sue for the annulment or reduction of the donation within 4 years from
the date of the adoption, if the donation impairs the legitime of the adopted, taking into account the whole
estate of the donor at the time of the adoption of the child. The burden of proof is on the donor, who must
allege and establish the requirement or reduction of the donation that can be adjudged.

Art. 764. The donation shall be revoked at the instance of the donor, when the donee fails to comply with
any of the conditions which the former imposed upon the latter.
In this case, the property donated shall be returned to the donor, the alienations made by the donee and the
mortgages imposed thereon by him being void, with the limitations established, with regard to third persons,
by the Mortgage Law and the Land Registration laws.
This action shall prescribe after 4 years from the noncompliance with the condition, may be:
1. transmitted to the heirs of the donor, and
2. exercised against the donee's heirs.

~ A donation may also be revoked at the instance of the donor when the donee fails to comply with any of
the conditions which the former imposed upon the latter.
~ Exception: when the condition is immoral, illegal, or impossible.
~ Effect of non-fulfillment:
o the donor has the choice of enforcing the condition by action for specific performance. The donee
having bound himself to carry out the condition imposed by accepting the donation may be
compelled with what has been stipulated.
~ A court action is necessary if the donee refuses to return the property

Art 765: The donation may also be revoked at the instance of the donor, by reason of ingratitude in the
following cases:
1. If the donee should commit some offense against the person, the honor, or the property of the donor or
of his wife or children under his parental authority
2. if the donee impute to the donor any criminal offense, , or any act involving moral turpitude, even
though he should prove it, unless the crime or the act has been committed against the donee himself,
his wife or children under his authority;
3. If he unduly refuses him support when the donee is legally or morally bound to give support to the
donor.

Note #2:
Offense does not mean a criminal offense, it may also include non-criminal offenses.
No criminal conviction is necessary, and proof of the of the offense by mere preponderance of evidence
in a suit for revocation is sufficient;

Notes #3:
a. there is legal or moral ground;
b. the refusal to support must be "made" or "unjustified"
c. it is understood that the support given periodically should not exceed the value of the thing donated.
The moment this amount is reached, the duty to support also ends.

Art. 769. The action granted to the donor by reason of ingratitude cannot be renounced in advance.
This action prescribes within 1 year, to be counted from the time:
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1. the donor had knowledge of the fact and

2. it was possible for him to bring the action.

Prescriptive period for revocation by reason of ingratitude shall be one (1) year from the time the donor
had knowledge of the fact and it was possible for him to bring the action.

Art. 770. This action shall not be transmitted to the heirs of the donor, if donor did not institute the same,
although he could have done so, and even if he should die before the expiration of 1 year.
Neither can this action be brought against the heir of the donee, unless upon the donee's death the
complaint has been filed.

~ The action for revocation is not transmitted to the heirs of the donor.
o Reason: Because the grounds for revocation are purely personal to the donor.
~ Exceptions:
o when the action was already instituted but the donor subsequently died
o when the donor is killed by the donee:
o the donor died without knowing the act of ingratitude

Inofficious donations:
Art. 771. Donations which in accordance with Art. 752, are inofficious, bearing in mind the estimated net
value of the donor's property at the time of his death, shall be reduced with regard to the excess; but this
reduction shall not prevent the donations from taking effect during the life of the donor, nor shall it bar the
donee from appropriating the fruits.
For the reduction of donations the provisions of this Chapter and of Art. 911 and 912 of this Code shall
govern.

~ The value of the estate at the time of the donor's death:

o Net Estate plus properly left at the time of death less debts and charges plus value of donations.
~ The donation may be considered inofficious, only in so far as it may affect the legitime of the heirs.
~ Since the inofficiousness of the donation cannot he determined till after the donor’s death, it follows
that in the meantime, the donation is valid and ownership is transmitted to the donee during the
donor’s lifetime.
~ Prescriptive period:
o The action to reduce or revoke may be brought within a period of 5 years from the time of the
donor’s death (Art 1149 NCC)
~ Who may bring the action to reduce?
o compulsory heirs of the donor;
o heirs and successors-in-interests of the compulsory heirs.