B.
NATURAL ACCESSION
§ 52. Natural Accession
[52.1] Four Forms
As discussed in supra §40.2, there are four forms of natural accession:
(1) Alluvion;
(2) Avulsion;
(3) Natural change of course of river; and
(4) Formation of island.
Art. 457. To the owners of lands adjoining the banks of rivers belong
the accretion which they gradually receive from the effects of the
current of the waters.
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.
§53. Alluvion
[53.1] Definition
Alluvium or alluvion has been defined as the gradual and imperceptible
addition to the banks of rivers314 or as the increment which lands abutting rivers
gradually receive as a result of the current of the waters. 315 Alluvium is the soil
deposited on the estate fronting the river bank, while accretion is the process
whereby the soil is deposited.
[53.2] Riparian Owners Distinguished from Littoral Owners
The owner of the estate fronting the river bank is called the riparian owner.
Riparian owners are, strictly speaking, distinct from littoral owners, the latter
being owners of lands bordering the shore of the sea or lakes or other tidal
waters.
[53.3] Rule on Alluvion
The rule on alluvion is embodied in Article 457 of the New Civil Code which
states that “to the owners of lands adjoining the banks of rivers
belong the accretion which they gradually receive from the
effects of the current of the waters.”
The riparian land, or the land adjoining the bank of the river is the principal and
the alluvial deposits accumulated gradually along such riparian land constitute
the accessory. The alluvium, by mandate of Article 457 of the New Civil
Code, is automatically owned by the riparian owner from the moment the soil
deposit can be seen. The same rule applies even if the riparian land was bought
under installment plan, in which case, the benefits of accretion belong to the
purchaser even when said accretion took place before the last installment was
paid.
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.
[53.4] Requisites of Alluvion
Accretion as a mode of acquiring property under Article 457 requires the
concurrence of the following requisites:
(1) that the accumulation of soil or sediment be gradual and imperceptible;
(2) that it be the result of the action of the waters of the river; and
(3) that the land where the accretion takes place is adjacent to the banks of the
river.
These are called the rules on alluvion which if present in a case, give to the
owners of lands adjoining the banks of rivers or streams any accretion gradually
received from the effects of the currents of waters.
[53.4.1] First Requisite
A sudden and forceful action like that of flooding is hardly the alluvial process
contemplated under Article 457 of the New Civil Code.
It is the slow and hardly perceptible accumulation of soil deposits that the law
grants to the riparian owner. This is what distinguishes alluvion from
avulsion. In alluvion, the deposit of soil is gradual and imperceptible;
whereas in avulsion, it is sudden and abrupt.
[53.4.2] Second Requisite
The requirement that the deposit should be due to the effect of the current of the
river is indispensable. This excludes from Article 457 of the New Civil Code
all deposits caused by human intervention. Alluvion must be the exclusive
work of nature.325 Hence, the riparian owner does not acquire the additions to his
land caused by special works expressly intended or designed to bring about
accretion.
[53.4.3] Third Requisite
Under Article 457, the accretion must take place on a land adjacent to the banks
of the river. Note, however, that while Article 457 mentions only of accretions
on the banks of rivers, this must be interpreted in conjunction with Article 84 of
the Spanish Law of Waters which provides:
“Accretions deposited gradually upon land contiguous to creeks, streams,
rivers and lakes, by accessions or sediments from the water thereof, belong
to the owners of such lands.”
But with respect to a creek, it must have regular and continuous current. The
rule does not apply to canals or esteros which are not creeks and have no
current but are simply drainage system.
The Laguna de Bay, on the other hand, is a lake, the accretion on which, by
the express mandate of Article 84 of the Spanish Law of Waters cited above,
belongs to the owners of the land contiguous thereto.
[53.5] Right of Riparian Owner to Alluvium Is Ipso Jure
The right of the owners of the bank adjacent to rivers to the accretion which
they receive by virtue of the action of the waters of the river is ipso jure and
there is no need of an action of the owner of the bank to possess the new
addition since it belongs to him by the very fact of the addition.
However, such accretion does not automatically become registered land just
because the lot which receives the same is covered by Torrens title. Thus, the
accretion to registered land does not preclude acquisition of the additional area
by another person through prescription.
[53.6] Exception to the Rule on Alluvion
Article 458 of the New Civil Code serves as an exception to the general rule on
alluvion. It is noteworthy that this article refers only to ponds and lagoons but
is not applicable to a lake since with regard to a lake the rule of alluvion is
applicable in accordance with the Spanish Law of Waters.
[54.1] Definition
Avulsion has been defined as the accretion which takes place when the
current of a river, creek or torrent segregates a known portion of land from an
estate on its banks and transfers it to another estate. Or, the accretion taking
place in the estate on the bank of a river caused not by the slow and constant
action of the waters but by the violent and sudden action of a torrent.
Art. 461. River beds which are abandoned through the natural
change in the course of the water’s 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.
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. 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.
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 thing of the greater value shall be so considered,
and as between two things of equal value, that of the 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.
QUIETING OF TITLE (n)
Art. 476. Whenever there is a cloud on title to real property or any
interest therein, by reason of any instrument, record, claim,
encumbrance or proceeding which is apparently valid or effective
but is in truth and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said title, an action may be
brought to remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud from being cast
upon title to real property or any interest therein.

Chapter 4
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 with this obligation, the
administrative authorities may order the demolition of the structure
at the expense of the owner or take measures to insure public
safety.
Title III. CO-OWNERSHIP
Art. 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.
[62.2] Requisites of Co-ownership
There is co-ownership whenever the ownership of an undivided thing or right
belongs to different persons. Hence, in order that a co-ownership may exist the
following requisites must concur:
[62.2.1] Plurality of Subjects
There must be plurality of subjects, who are the co-owners. The regime of co-
ownership exists when ownership of an undivided thing or right belongs to
different persons. Thus, co-ownership is a manifestation of the private right of
dominion, where in lieu of its being exercised by the owner in an inclusive
manner over things or rights, there are two or more owners.
[62.2.2] Unity of the Object
There must be unity of the object (or material indivision), which means that
there is a single object which is not materially divided, and which is the
element which binds the subjects. The juridical concept of co-ownership is
unity of the object or property and plurality of subjects. As a consequence, a co-
owner of an undivided parcel of land is an “owner of the whole, and
over the whole he exercises the right of dominion, but he is at
the same time the owner of a portion which is truly abstract.
“Hence, each co-owner of property which is held pro indiviso exercises his
rights over the whole property and may use and enjoy the same with no other
limitation than that he shall not injure the interests of his co-owners. The
underlying rationale is that until a division is made, the respective share of each
cannot be determined and every co-owner exercise, together with his co-
participants, joint ownership over the pro indiviso property, in addition to his
use and enjoyment of the same. The foregoing being the case, there is no
coownership when the different portions owned by different people are already
concretely determined and separately identifiable, even if not yet technically
described.
[62.2.3] Recognition of Ideal Share
There must be recognition of ideal shares, which determines the rights and
obligations of the co-owners. It is a basic principle in civil law that before a
property owned in common is actually partitioned, all that the co-owner has is
an ideal or abstract quota or proportionate share in the entire property.
[62.7] Sources of Co-ownership
Co-ownership may be created by any of the following causes:
(1) By law: Examples:
(a) Co-ownership will arise if by the will of their owners two things of the
same kind or different kinds are mixed. Co-ownership will likewise
arise if by the will of only one owner, but in good faith, two things of
the same or different kinds are mixed or confused.
(b) When a man and woman who are capacitated to marry each other, live
exclusively with each other as husband and wife without the benefit of
marriage or under a void marriage, the property acquired by both of
them through their work or industry shall be governed by the rules on
co-ownership.39 In cases of cohabitation not falling under Article 147 of
the Family Code, only the properties acquired by both of the parties
though their actual joint contribution of money, property, or industry
shall be owned by them in common in proportion to their respective
contributions.

(2) By contract: An agreement to keep the thing undivided for a certain
period, not exceeding ten years, shall be valid. This term may be extended by a
new agreement.
(3) By succession: Where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs, subject to the
payment of debts of the deceased. The testator may likewise prohibit the
partition of the estate among the heirs for a period not to exceed twenty (20)
years.
(4) By fortuitous event or chance: Co-ownership will arise if two things of
the same kind or different kinds are mixed by chance and the things are not
separable without injury.
(5) By occupancy: As when two or more persons catch a wild pig or get forest
products or when a hidden treasure is accidentally discovered by a stranger,
who is not a trespasser, on the land of another.
Art. 487. Any one of the co-owners may bring an action in ejectment.
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. No such waiver shall be made if it is prejudicial to the co-
ownership.
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.
[66.3] Effect of Failure to Comply with the Notice
Requirement
If the giving of notice is practicable and the co-owner who undertook the repair
for preservation failed to previously notify the other co-owners of the necessity
of such repair, will the absence of such notice deprive him of the right to
demand contribution from the other co-owners for the expenses he incurred?
According to Senator Tolentino, such failure does not deprive the co-owner
who incurred the expenses of the right to recover the proportionate shares of the
other co-owners in the expenses. The only effect of such failure is to place upon
the co-owner who incurred the expenses the burden of proving the necessity of
the repairs and the reasonableness of the expenses.
Art. 491. None of the co-owners shall, without the consent of the
others, make alterations in the thing owned in common, even
though benefits for all would result therefrom. However, if the
withholding of the consent by one or more of the co-owners is
clearly prejudicial to the common interest, the courts may afford
adequate relief.
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. There shall be no majority unless the resolution is
approved by the co-owners who represent the controlling interest in
the object of the coownership.
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
provisions shall apply only to the part owned in common.
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.
[70.4] Alienation of Entire Co-owned Property
As a mere part owner, a co-owner cannot alienate the shares of the other co-
owners. The prohibition is premised on the elementary rule that “no one can
give what he does not have” — nemo dat quod non habet. As a person
can sell only what he owns or is authorized to sell, the buyer can as a
consequence acquire no more than what the seller can legally transfer. Based
from this principle, no co-owner has the right to alienate the entire property
owned in common. However, 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, following the well-established principle that the
binding force of a contract must be recognized as far as it is legally possible to
do so — quando res non valet ut ago, valeat quantum valere
potest (when a thing is of no effect as I do it, it shall have effect as far as [or
in whatever way] it can). 166 Since a co-owner is entitled to sell his undivided
share, a sale of the entire property by one co-owner without the consent of the
other co-owners is not null and void. However, only the rights of the co-owner-
seller are transferred, thereby making the buyer a co-owner of the property.
Since the sale is not null and void, the proper action in cases like this is not for
the nullification of the sale. And since such sale had the effect of making the
buyer a co-owner of the property, an action for the recovery of possession of
the thing owned in common from the buyer who substituted the co-owner or
co-owners who alienated their shares is likewise not proper 169 since the
possession by the buyer, being a new co-owner, will not be regarded as adverse
to the other co-owners but is, in fact, beneficial to all of them. It is now settled
that the appropriate recourse of co-owners in cases where their consent was 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. Such partition should result in segregating the
portion belonging to the seller and its delivery to the buyer. Neither recovery of
possession nor restitution can be granted since the buyer is a legitimate
proprietor and possessor in joint ownership of the common property claimed.
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.
§ 72. Extinguishment of Co-ownership
[72.1] Causes of Extinguishment of Co-ownership
Co-ownership may be extinguished or terminated by any of the following
causes:
(1) By the merger in one person of all the interest of the co-ownership;
(2) By prescription of the thing or right in favor of third persons or a co-owner;
(3) By destruction of the thing or loss of the right which is owned in common;
and
(4) By partition of the property owned in common.
[72.2] Merger
Merger, as a mode of terminating the co ownership, takes place when all the
interests in a co-ownership are consolidated in one person. This may happen,
for example, when the shares of the other co-owners are acquired by one co-
owner either by way of purchase or through the exercise of the right of legal
redemption.
[72.3] Destruction of Thing or Lost of Right
A state of co-ownership exists only because there is unity of the object or
property and plurality of subjects. Note that a co-ownership is only a state of
fact which exists so long as the property remains materially undivided. Hence,
the moment that the state of fact no longer exists because the object of the co-
ownership is either destroyed or lost, the co-ownership also ceases.
[72.4] Redemption by One Co-Owner of the Entire Property
The rule in this jurisdiction is that the redemption by one co-heir or co-owner
of the property in its totality does not vest in him ownership over it since
redemption is not a mode of terminating a co-ownership.
A redemption by a co-owner within the period prescribed by law inures to the
benefit of all the other co-owners. In such a situation, therefore, the redemption
made by one co-owner will simply entitle him to collect reimbursement from
the remaining co-owners pursuant to the provisions of Article 488 considering
that redemption entails a necessary expense.
This is exemplified in the case of Adille v. Court of Appeals. In this case,
the land in question originally belonged to one Feliza Alzul as her own private
property. Sometime in 1939, Feliza sold the property in pacto de retro to
certain third persons, the period of repurchase being three years. During the
period of redemption, her son in the first marriage repurchased the subject
property, who thereafter was able to secure title to the property only in his
name. Subsequently, however, the other children of Felisa in her second
marriage fi led an action for partition and accounting claiming that they were
co-owners of the subject property, being heirs. The son of Felisa in the first
marriage contends that the subject property devolved
upon him upon the failure of his co-heirs to join him in its redemption within
the period required by law. Answering this particular contention, the Supreme
Court held —
The right of repurchase may be exercised by a co-owner with aspect to his
share alone. While the records show that the petitioner redeemed the property
in its entirety, shouldering the expenses therefor, that did not make him the
owner of all of it. In other words, it did not put to end the existing state of co-
ownership.
Necessary expenses may be incurred by one co-owner, subject to his right to
collect reimbursement from the remaining co-owners. There is no doubt that
redemption of property entails a necessary expense. Under the Civil Code:
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.
No such waiver shall be made if it is prejudicial to the coownership. The result
is that the property remains to be in a condition of co-ownership. While a
vendee a retro, under Article 1613 of the Code, “may not be compelled to
consent to a partial redemption,” the redemption by one co-heir or co-owner of
the property in its totality does not vest in him ownership over it. Failure on the
part of all the co-owners to redeem it entitles the vendee a retro to retain the
property and consolidate title thereto in his name. But the provision does not
give to the redeeming co-owner the right to the entire property. It does not
provide for a mode of terminating a co-ownership.
Neither does the fact that the petitioner had succeeded in securing title over the
parcel in his name terminate the existing co-ownership. While his half-brothers
and sisters are, as we said, liable to him for reimbursement as and for their
shares in redemption expenses, he cannot claim exclusive right to the property
owned in common. Registration of property is not a means of acquiring
ownership. It operates as a mere notice of existing title, that is, if there is one.
The petitioner must then be said to be a trustee of the property on behalf of the
private respondents. The Civil Code states:
ART. 1456. If property is acquired through mistake or fraud, the person
obtaining it is, by force of law, considered a trustee of an implied trust for the
benefit of the person from whom the property comes.
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.
§ 74. Partition
[74.1] Definition
Partition, in general, is the separation, division and assignment of a thing held
in common among those to whom it may belong. The thing itself may be
divided, or its value.
[74.5] When Partition Not Available
The action for partition will not be available in the following instances:
(1) When there is an agreement among the owners to keep the thing
undivided. However, such agreement must not exceed ten years. Where
the parties stipulate a definite period of indivision which exceeds the
maximum allowed by law, said stipulation shall be void only as to the
period beyond such maximum. However, the period of ten years may be
extended by a new agreement.
(2) When the donor or testator prohibits partition for a period which shall
not exceed twenty (20) years. Although the Civil Code is silent as to the
 effect of the indivision of a property for more than twenty years, it
would be contrary to public policy to sanction co- ownership beyond
the period set by the law. Otherwise, the 20-year limitation expressly
mandated by the Civil Code would be rendered meaningless.
(3) When the law prohibits partition such as when the origin or juridical
nature of co ownership prevents partition:
Examples:
(a) The spouses, who are governed by a regime of absolute community,
cannot agree to partition the community property without a judicial
order.
(b) The heirs cannot partition the family home upon the death of the
person or persons who constituted the same unless the court finds
compelling reasons therefore. Upon the death of the person or persons
who constituted the family home and there are two or more heirs, the
whole estate of the decedent (including the family home) is, before its
partition, owned in common by such heirs, subject to the payment of
the debts of the deceased. As a rule, any one of the co-owners may
demand partition at any time. However, so long as the family home
continues as such pursuant to the provisions of Article 159 of the
Family Code, the heirs are prohibited from partitioning the family
home unless the court finds compelling reason therefore.
(4) When partition would render the thing unserviceable for the use for which
it is intended.
Title V. POSSESSION
POSSESSION AND THE KINDS THEREOF
Art. 523. Possession is the holding of a thing or the enjoyment of a
right.
Art. 526. He is deemed a possessor in good faith who is not aware
that there exists in his title or mode of acquisition any flaw which
invalidates it.
He is deemed a possessor in bad faith who possesses in any case
contrary to the foregoing.
Mistake upon a doubtful or difficult question of law may be the basis
of good faith.
ACQUISITION OF POSSESSION
Art. 531. Possession is acquired by the material occupation of a
thing or the exercise of a right, or by the fact that it is subject to the
action of our will, or by the proper acts and legal formalities
established for acquiring such right.
Art. 532. Possession may be acquired by the same person who is to
enjoy it, by his legal representative, by his agent, or by any person
without any power whatever; but in the last case, the possession
shall not be considered as acquired until the person in whose name
the act of possession was executed has ratified the same, without
prejudice to the juridical consequences of negotiorum gestio in a
proper case.
§ 84. Acquisition of Possession
[84.1] Modes of Acquiring Possession
Possession is acquired in any of the following ways:
(1) By material occupation of a thing or the exercise of a right;
(2) By subjecting the thing or right to the action of our will; and
(3) By the proper acts and legal formalities established for the acquisition of
such right.
The first appears to be an original mode of acquisition while the others refer to
derivative modes.
[84.2] Requisites for acquisition of possession
As discussed in supra § 80.2, the acquisition of possession presupposes the
existence of two essential elements:
(1) the corpus; and
(2) the animus possidendi.
The first refers refer to the material holding of the thing or the exercise of the
right which may be acquired through any of the modes mentioned in this
article. The second, on the other hand, refers to the intent to possess the thing or
right. In other words, possession is not acquired in law in the absence of intent
to possess it although there is physical holding of the thing. For example, if
stolen goods are placed in the bag of a person by another without the former’s
knowledge and consent, the former is not considered a possessor in law because
of the absence of intent to possess the goods.

[84.3] Material Occupation
The term “material occupation” in Article 531 of the New Civil Code is used in
its ordinary grammatical meaning, to mean “actual physical possession” or
“material apprehension.” Obviously, this mode applies only to corporeal
objects and does not find application to acquisition of possession over a right.
In this sense, the term “material occupation” in Article 531 is synonymous to
“occupation” as a mode of acquiring ownership under Article 712 of the New
Civil Code because both involve the material apprehension of things corporeal.
They differ, however, in the following respects:
(1) the term “occupation” in Article 531 is used in its ordinary grammatical
meaning whereas the term “occupation” in Article 712 is used in a juridical and
technical meaning;
(2) in Article 531, occupation is a mode of acquiring possession; whereas, in
Article 712, occupation is a mode of acquiring ownership;
(3) in Article 531, the occupation must be coupled with intent to possess;
whereas, in Article 712, what is required is intent to own or appropriate;
(4) in Article 531, occupation as a mode of acquiring possession applies
whether the property is with an owner or not; in Article 712, however,
occupation can take place only with respect to property without an owner;
(5) in Article 531, occupation as a mode of acquiring possession can have as its
object a parcel of land; in occupation as a mode of acquiring ownership under
Article 712, it cannot have as its object a parcel of land.
The term “material occupation” in Article 531 includes two forms of
constructive delivery:
(1) tradicion brevi manu and
(2) tradicion constitutum possessorium.
Note that in these kinds of constructive delivery, material occupation is
involved.82 But for those kinds of constructive delivery where material
occupation is not involved, such as tradicion symbolica and tradicion
longa manu, the mode of acquisition of possession is by subjecting the thing
to the action of our will and not material occupation.
[84.4] Doctrine of Constructive Possession
The doctrine of constructive possession applies when the possession is under
title calling for the whole. As a rule, the possession and cultivation of a portion
of a tract under claim of ownership of all is a constructive possession of all, if
the remainder is not in the adverse possession of another. 84 Stated otherwise, the
actual possession of part of the property is deemed to extend to the whole
because possession in the eyes of the law does not mean that a man has to have
his feet on every square meter of ground before it can be said that he is in
possession.
For this doctrine to apply the following requisites must be present:
(1) the alleged possessor must be in actual possession of a portion or part
of the property;
(2) he is claiming ownership of the whole area;
(3) the remainder of the area must not be in the adverse possession of
another person; and
(4) the area claimed must be reasonable.
[84.5] Subjection to Action of Will
This particular mode does not involve any material apprehension to distinguish
it from the first mode (material occupation). It connotes, however, a degree of
control over the thing sufficient to subject the same to the action of one’s will.
What is important in this mode is the intention to possess manifested by certain
facts which are present. Included in this mode are the two forms of constructive
delivery known as tradicion simbolica and tradicion longa manu.
Tradicion simbolica takes place through delivery of symbols or
some object which represent those to be delivered thus placing the thing under
the control of the transferee. Through this mode, the delivery of the keys to a
warehouse is sufficient to transfer possession.
[84.6] Proper Acts and Legal Formalities
This third mode of acquiring possession refers to any juridical act by which
possession is acquired or to which the law gives the force of acts of
possession.96 Examples of these juridical acts are donations, intestate and testate
succession, writs of possession, judicial or administrative possession and
execution of public instruments. In the case of Muyco v. Montilla, et al.,
the possession given by the sheriff to the assignees of the original purchasers of
the hacienda, in compliance with the order of the court in an action brought
against the former owners of said hacienda was viewed by the Supreme Court
as constituting the proper acts and legal formalities referred to in Article 531 of
the New Civil Code.
[84.7] Acquisition of Possession Over Rights
As discussed in supra § 84.3, material occupation is not available as a mode
of acquiring possession over rights since the same requires actual physical
possession and applies only to corporeal objects. With respect to rights,
possession over it is acquired through any of the following means:
(1) by exercise of such right;
(2) by subjecting it to the action of our will; and
(3) by proper acts and legal formalities.
[84.8] By Whom Possession Acquired
In the same way that possession may be exercised by the owner or holder either
personally or through an agent, its acquisition may likewise be made personally
by the person who is to enjoy it or through his agent or legal representative. 99 It
may even be acquired by any person, for and on behalf of the person who is to
enjoy it, even in the absence of any authority from the latter. Of course, the
“agent” referred to in Article 532 of the New Civil Code is someone who has
been authorized to acquire possession by the person who is to enjoy it. In other
words, he is acquiring possession not for himself but for his principal. In such a
situation, possession is considered acquired by the principal from the time that
the same is acquired by the agent.
If a person has not been authorized by the intended principal but possession is
nonetheless acquired by the former only in representation of the latter, the
intended principal may or may not ratify the act of possession in his name. In
the event that the intended principal ratifies the act of possession done in his
name, the possession shall be considered acquired by him only upon such
ratification.
The rule above, however, is without prejudice to the juridical consequences of
negotiorum gestio in a proper case. According to Senator Tolentino, when
a person voluntarily manages the affairs of another (negotiorum gestio),
the ratification by the person for whom the thing was acquired will retroact to
the time of apprehension by the gestor, and the possession of the former must
be deemed to have been acquired from that moment.
[84.9] Capacity to Acquire Possession
The rule with respect to the requirement of capacity to act in relation to
acquisition of possession is embodied in Article 535 of the New Civil Code
which reads:
“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.”
It is clear from this article that it is applicable only to acquisition of possession
by minors and incapacitated person over things but not over rights. As
explained in supra § 84.7, possession over rights may only be acquired
through any of the modes therein discussed. Note that in any of said modes,
capacity to act is necessary for the acquisition of possession.
With respect to acquisition of possession over things, Article 535 contemplates
principally of acquisition through “material occupation” since this mode does
not require capacity to act. However, the law likewise contemplates of other
means of acquisition for which the minor or other incapacitated persons has the
necessary capacity, such as pure or simple donations and succession, whether
testate or intestate.
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, the
present possessor shall be preferred; if there are two possessors,
the one longer in possession; if the dates of the possession are the
same, the one who presents a title; and if all these conditions are
equal, the thing shall be placed in judicial deposit pending
determination of its possession or ownership through proper
proceedings.
Art. 540. Only the possession acquired and enjoyed in the concept of
owner can serve as a title for acquiring dominion.
§ 89. Possession in the Concept of Owner
The following are the effects of possession in the concept of owner:
(1) It raises a disputable presumption of ownership (Art. 433, NCC).
(2) It creates a disputable presumption that the possessor has just title and he
cannot be obliged to show it. (Art. 541, NCC)
(3) It can ripen into ownership through acquisitive prescription (Art. 540,
NCC), subject to the additional requirements under Article 1118 of the Civil
Code.
[89.1] Presumption of Just Title
Actual possession under claim of ownership raises a disputable presumption of
ownership. In addition, the possessor in the concept of owner (en concepto
de dueño) has in his favor the legal presumption that he possesses with a just
title and he cannot be obliged to show it. This presumption can be availed of by
the possessor in cases where another person claims a better right over the
property. In action reivindicatoria, for example, the person who claims
that he has a better right to the property has the burden of proving his title, in
addition to proving the identity of the land claimed. In other words, the plaintiff
must rely on the strength of his own title, not on the weakness of the
defendant’s title because the latter enjoys the presumption of just title which he
cannot be obliged to show. The presumption, however, is disputable and may
be rebutted by proof to the contrary. So long as the person claiming a better
right is unable to prove his own title, the presumption prevails in favor of the
possessor en concepto de dueño. Hence, the latter is not even required to
prove his title. If such other person, however, prevails in overthrowing the
presumption by proving the existence of his title upon which the claim is based,
the possessor is now obliged to show and prove his title.
The presumption of the existence of a just title in favor of the possessor en
concepto de dueño may not be availed by him for the purpose of acquiring
ownership through acquisitive prescription. For the latter purpose, the law
requires that the just title of the possessor must be proved:
“Art. 1131. For the purposes of prescription, just title must be proved; it is
never presumed.” (New Civil Code)
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. 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.
Art. 559. The possession of movable property acquired in good faith
is equivalent to a title. Nevertheless, one who has lost any movable
or has been unlawfully deprived thereof, may recover it from the
person in possession of the same. If the possessor of a movable lost
or 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 therefor.
[101.3] Cases Where There Is No Recovery
There are cases where the owner may no longer recover the movable property
even if he has lost the same or he has been unlawfully deprived thereof. In the
following cases, the owner of a movable property who has lost it or has been
unlawfully deprived of it may no longer recover the thing from the possessor:
(1) If the possessor acquired the thing at a merchant’s store, or in fairs, or in
markets in accordance with the Code of Commerce and special laws;
(2) Where the possessor acquired the thing by sale under statutory power of
sale or under the order of a court of competent jurisdiction;
(3) When the possessor is a holder in due course of a negotiable document of
title to goods or where the owner is barred by the principle of negotiable
instruments;
(4) Where the owner is barred by reason of his own acts or neglect from
denying the seller’s title; and
(5) Where the owner can no longer recover the thing from the possessor by
reason of prescription.