Sale/mortgage by a co-owner of the whole property

Since a co-owner is entitled to sell his undivided share a sale of the entire property by one (1) co-owner without the
consent of the other co-owners is not null and void; only the rights of the co-owner/seller are transferred, thereby making the
buyer a co-owner of the property (Mactan-Cebu international Airport Authority v. Unchuan, 791 SCRA 581, 01 June 2016)

A co-owner does not lose his part ownership of a co-owned property when his share is mortgaged by another without
the former’s knowledge and consent ( Inalvez v. Nool, 789 SCRA 489, 18 April 2016)

A person can only sell what he owns, or he is authorized to sell and the buyer can as a consequences acquire no more
than what the seller can legally transfer ( Neri v. Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy, 683 SCRA 553, 10 October
2012)

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 ( Torres, Jr. v. Lapinid 742 SCRA 646, 26 November 2014)

Cases: 1. Republic v. Heirs of Francisca Dignos-Sorono, 549 SCRA 58 [2008]

-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.

- A sale of the entire property by one co-owner without the consent of the other co-owners is not null and void; buyer
is made co-owner of he property

2. Nufable v. Nufable, GR No. 126950, 02 July 1999

- A co-owner does not lose his part ownership of a co-owned property when his share is mortgaged by another co-
owner without the former’s knowledge and consent. It has likewise been ruled that the mortgage of the inherited property is
not binding against co-heirs who never benefited.

Co-owners remedy is an action for partition in case of sale of entire property of undivided portion without their consent

As held in the case of Heirs of Protacio Go, Sr. and Marta Barola v. Servacio 667 SCRA 10 (201)

“it is now settled that the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the
entire property as well as in a sale merely of the undivided shares of some of the co-owners is an action for Partition under Rule
69 of the Revised Rules of Court (Domingo v. Molina, 791 SCRA 47, 20 April 2016)

Effect of sale by a spouse of a conjugal property without the consent of the other spouse

Case: Heirs of Rees v. Mijares, 410 SCRA 97

-Any alienation or encumbranceof conjugal partnership property by he husband and without the consent of the wife,
if made after the Family code took effect, is not only voidable but null and void

Right to sell

Case: Acabal v. Acabal, GR No. 148376, 21 March 2005

-While Villaner owns five-ninths (5/9) if the disputed property, he could not claim title to any definite portion of the
community property until its actual partition by agreement or judicial decree. Prior to partition, all that he has is an ideal or
abstract quota or proportionate share in the property. Villaner however, as a co-owner of the property has the right to sell his
undivided share o\thereof.
 - Thus, every co-owner has absolute ownership of his undivided interest in the co-owned property and is free to
alienate, assign or mortgage his interest except as to purely personal rights. While co-owner has the right to freely sell and
dispose of his undivided interest, nevertheless, as co-owner he cannot alienate the share of his other co-owners—nemo dat qui
non habet

- Villaner, however, sold the entire property without obtaining the consent of the other co-owners. Following the
well-established principle that the binding force of a conract must be reconized as fas as I is legally possible to do so – quando
res non valet ut ago, valeat quantum valere potest – the disposition affects only Villaner’s share pro indiviso, and te transferee
gets only what corresponds to his grantor’s share in the partition of the property in common

A co-owner could enter into a contract to sell a definite portion of the property ( Cabrera v. Ysaac, &40 SCRA 612, 19
November 2014)

Right of redemption (Arts 1620 and 1623)

Case: Avila vs Arabat, 385 SCRA 8, 17 March 2006

As there is no longer co-ownership, the right to redeem any part of the property from any of their former co-owner
was already extinguished. As legal redemption is intended to minimize co-ownership, once a property is subdivided and
distributed among co-owners, the community ceases to exist and there is no more reason to sustain any right of legal
redemption.

Termination of co-ownership

THE LEGAL OR JURIDICAL DOSSILUTION OF CO-OWNERSHIP.

 When the thing owned in common is essentially indivisible or physically indivisible, the property may be allotted to
one of the co-owners who shall indemnify the other, or be sold at public auction and the proceeds distributed among the co-
owners.

Partition/termination of co-ownership

As held in the case of Heirs of Protacio Go, Sr. and Marta Barola v. Servacio 667 SCRA 10 (201)“it is now settled that
the appropriate recourse of co-owners in cases where their consent were not secured in a sale of the entire property as well as
in a sale merely of the undivided shares of some of the co-owners is an action for Partition under Rule 69 of the Revised Rules
of Court (Domingo v. Molina, 791 SCRA 47, 20 April 2016)

Prior to partition, a sale of a definie portion of common property requires the consent of all co-owners because it operates to
partition the land with respect to the co-owners selling his or her share ( Cabrera v. Ysaac, 740 SCRA 612, 19 November 2014)

Cases: 1.Avila v. Arabat, 485 SCRA 8, 17 March 2006

- The purpose of partition is to separate, divide and assign a thing held in common among those to whom it belongs.
Thus, when the co-owners/heirs segregated and took possession of their respective shares in the lot, their respective shares
were therefore physically determined, clearly identifiable and no longer ideal. Co-ownership had been legally dissolved.

2. Cruz v. CA 456 SCRA 165 (2005)

- Co-ownership is terminated upon judicial or extrajudicial partition of the properties owned in common. Partition in
general is the separation, division and assignment of a thing held in common among those whom it may belong. Every
act which is intended to put an end to indivision among co-heirs and legatees or devisees it deemed to be a patition,
although it should purport to be a sale, an exchange, a compromise or any transaction.

3.Cabal v. Cabal 497 SCRA 301 )2006)

- Elementary is the rule that there is no co-ownership where the portion owned is concretely determined and
identifiable, though no technically described, or that said portion is still embraced in one and the same certificate of
title does not make said portion less determinable or identifiable, or distinguishable, one from the other, nor that
dominion over each portion les exclusive in their respective owners.

Under Article 1082 of the Civil Code, every act which is intended to put an end to indivison among co-heirs is deemed
to be a partition though it should purport to be a sale, an exchange, or any other transaction. Partition may thus be inferred
from circumstances sufficiently strong to support the presumption ( MAglucot-Aw. Magluco, GR No. 132518, 28 March 2000,
329 SCRA 78; Notarte v. Notarte, 679 SCRA 78; 378 29 August 2012)

The validity of oral petition is already well-settled. It is not required that the partition agreement be registered or
annotated. After exercising acts of ownership over their respective portions of the contested estate, petitioners are estopped
from denying the existence of an oral partition ( Notarte v. Notarte, 679 SCRA 378, 29 August 2012 ; MAglucot-aq v. Maglucot
GR no. 132518, 28 March 200, 329 SCRA 78; Crucillo v. IAC GR No. 65416, 26 October 1999 317 SCRA 351)

Prescription does not run against a co-owner as a rule

As a rule, prescription does not run in favor of a cheir or co-owner as long as he expressly or impliedly recognizes the
co-ownership; and he cannot acquire by prescription the hare of the other co-owners absent a clear repudiation of the co-
ownership (Hers of Feliciano Yambao v Heirs of Hermogenes Yambao, 789 SCRA 361 13 April 2016)

Repudiation of Co-ownership
Case: 1. Salvador v. CA 243 SCRA 239 (1995)

-The possession of a co-owner is like that of a trustee and shall not be regarded as adverse to the other co-owners but
infact as a beneficial to all of them. Acts which may be considered adverse to strangers may not be considered adverse insofar
as co-owners are concerned. A mere silent possession by a co-owner, his receipts of rents, fruits or profits from the property,
the erection of buildings and fences and the planting of trees thereon, and the payment of land taxes, cannot serve as proof of
executive ownership, if it is not borne out by clear and convincing evidence that he exercised acts of possession which is
unequivocal constituted an ouster or deprivation of the rights of the co-owners.

- In order that a co-owner’s possession may be deemed adverse to the cestui que trust or the other co-owners, the
following elements must concur; (1) that he has performed un-equivocal acts of repudiation amounting to an ouster of the
cestui que trust or the other co-owners; (2) that such positive acts of repudiation have been known to the cestui que trust or
the oher co-owners and (3) that the evidence thereon must be clear and convincing.

2. Gicano v Gegato, 157 SCRA 140 (1998)

- An action to recover an immovable from a defendant allegedly holding it under constructive trust prescribes in ten
years, counted from the issuance of the title to said defendant.

Possession (Arts. 523-561)

The Holding of a thing or the enjoyment of a right (art. 523)

Possession in the eyes of the law does not mean that man has to have his feet on every square meter of the ground
before it can said that he is in possession (Mangaser v. Ugay, 744 SCRA 13. 03 Dec. 2014)

Only things and rights which are susceptible of being appropriated may be the object of possession. The following
cannot be appropriated and hence, cannot be possessed ; property of the public dominion common things (res communes )
such as sunlight and air, and the things specifically prohibited by law (Republic v cortez, Sr, 769 SCRA 267, 07 Sept 2015)

Nature and concept

Cases: 1. Somodio v. CA 235 SCRA 307 (1994)

- Possession in the eyes of the law does not mean that man has to have his feet on every square meter of the ground
before it can said that he is in possession. It is sufficient that one was able to subject the property o acion of his will.

2. Republic rep. by SSS v. Jerry V. David, GR No. 155634, 16 Aug. 2004)

- Actual possession is not the same as occupancy

3.Pico v. Adalim-Salcedo 602 SCRA 21 , 02 Oct 2009

- Property covered by Torrens Tile cannot be acquired by possession-possession no matter how long could not ripen
into ownership.

Owner may possess through another

It is not necessary that the owner of a parcel of land should himself occupy the property as someone in his name may
perform the act (heirs of Rogelio Isip Sr. v. Quintos 678 SCRA 104, 01 Aug. 2012)

Squatters have no possessory rights

 Squatters have no possessory rights over the land intruded upon. The length of time that they may have physically
occupied the land is immaterial; they are deemed to have enetered the same in bad faith, such that the nature of their
possession is presumed to have retained the same character throughout their occupancy ( Pillar Dev;t Corp v. Dumadag 693
SCRA 96, 11 Mar.2013)

Possession vs Occupation

Case: Mistica v Republic, 599 SCRA 401, 11 Sept. 2009

-Possession alon is not suffiecient to acquire title to alienable lands of the public domain because the law requires
possession and occupation-since these words are separated by the conjunction “and” he clear intention of the law is
not to make one synonymous with he oher b.

Possession is broader than occupation because it includes constructive possession—when the law adds the
word occupation, it seeks to delimit the all-encompassing effect of constructive possession.

Rights of possessor

Possessor in good Faith

Case: Heirs of the late Joaquin Limense v. vda de Ramos 604 SCRA 599, 28 Oct 2009)

-The essence of good faith lies in an honest belief in he validity of one’s right ignorance of a superior claim, and
absence of intention to overreach another. Applied to possession, one is considered in good faith if he is not aware that there
exists in his title or mode of acquisition any flaw which invalidates it.

Delivery of possession

Cases: 1. Dulay Enterprises, Inc. v. CA, 225 SCRA 678, 1993

-The mere execution of a deed of sale in a public document is equivalent o the delivery of the property

2. APT v. TJ Enterprises, 587 SCRA 481, 08 May 2009

-As a general rule, when the sale is made through a public instrume, the execution thereof shall be equivalent to the
delivery of the thing which is the object of the contract, if from the deed, the contrary does not appear or cannot clearly be
inferred.

- In order for the execution of a public instrument to effect tradition, the purchaser must be placed in control of the
thing sold.

- A person who does not have actual possession of the thing sold cannot transfer constructive possession by the
execution and delivery of public instrument ( also Villamar v. Mangaoil, 669 SCRA 426, 11 April 2012)

Tacking(of possession)

The Term is applied especially to the process of establishing title to land by adverse possession when the present
occupant and claimant has not been in possession for the full statutory period, but adds or “tacks” to his own possession hat of
previous occupants under whom he claims. That doctrine which permits an adverse possessor to add his period of possession
to that of a prior adverse possessor in order to establish a continuous possession for the statutory period.
 The term is also used in a number of other connections, as possessions, disabilities, or items in accounts or other
dealings. In these several cases the purpose of the proposed tacking is to avoid the bar of stature of limitations. (Black’s Law
Dictionary, 6th ed.)

Possession by tolerance

Petitioner was able to establish that respondents’ possession was by tolerance of his predecessors. As such, they are
necessarily bound by an implied promise that they will vacate upon demand failing which a summary vacation for ejectment is
the proper remedy against them (Perez v. Rosaceña, 806 SCRA 171, 17 Oct. 2016)

Professor Tolentino defines and characterizes “tolerance” in the following manner . […] acts merely tolerated are
those which by reason of neighborliness or familiarity, the owner of property allows his neighbor or another person to do on
the property; they are generally those particular services or benefits which one’s property can give to another without material
injury or prejudice to the owner, who permits out of friendship or courtesy )Reyes, Sr. v. Heirs of Dergracias Forlales, 794 SCRA
13, 20 June 2016)

Expenses (Arts 546-548)

The different kinds of expenses

a) Necessary expenses – Expences for the preservation, prevention of waste, deterioration or loss of the thing (Ar.
546)

Necessary expenses are those made for the proper preservation of the land and the improvements
introduced, or those expenses without which the land and the improvements would have been lost; Useful
expenses are the expenses incuredto give greater utility or productivity to the land and its improvements (
Hacienda Luisita , Inc. v. PARC, 670 SCRA 392, 24 April 2012)

b) Useful expenses—Expenses that add value to a thing o argument is income (Art 546)
c) Luxurious expenses—Expenses only for embellishment, convenience or enjoyment of particular possessors (Art.
548)

The Doctrine of irrevindicability (Art. 559)

The possession of a movable property acquired in good faith is equivalent to a title (Art. 559)

Article 559 of the Civil Code. It reads thus ; The possession of a movable property acquired in good faith is equivalent
to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof may recover it from the person
in possession of the same. If the possessor of a movable lost or of which the owner has been unlawfully deprived has acquired
it in good faith at a public sale. The owner cannot obtain its return without reimbursing the price paid herefore. The only
exception the law allows is when there is acquisition in good faith of the possessor at a public sale, in which case the owner
cannot obtain its return without reimbursing the price ( Dizon v. Suntay , 47 SCRA 160 GR. No. L-30817 Sept. 29, 1972**)

May a possessor who lost or was unlawfully deprived of a movable recover the same?

One who has lost or was unlawfully deprived of a movable property may recover it from the person in possession of
the same (Art. 559)

If said movable was acquired in good faith at a public sale, the owner or possessor cannot obtain it without
reimbursing the price paid thereof.
 HOWEVER, the owner can no longer recover the movable property if such was acquired from a merchant’s stores,
fairs or markets (Art. 1505).

Unlawful deprivation

Case: EDCA v. Santo, 184 SCRA 614 (1990)**

-There is no “unlawful deprivation” and the provision of Article 559 shall not apply when the seller was paid by a
check that was dishonored/bounced by an imposter buyer.

Prescription/recovery of movables

Case Calatagan Gold Club, Inc. v. Clemente, Jr. , 585 SCRA 300, 16 April 2009 **

-Neither Article 1146 nor Article 149 is applicable but Art. 1140 of the Civil Code which provides that an action to
recover movable shall prescribe in eight (8) years.