CLASSIFICATION OF PROPERTY
the legal relation. — In real right (e.g., ownership),
A. PRELIMINARY PROVISIONS (Art. 414)
Article 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.
1. Things vs. Property
thing - broader in scope for it includes both
appropriable and non-appropriable objects.
property – when a thing becomes appropriable and
subject to human control
2. Requisites or Characteristics of Property
(a) Utility for the satisfaction of moral or
economic wants
(b) Susceptibility of appropriation
(c) Individuality or substantivity (i.e., it can
exist by itself, and not merely as a part of a whole.
Hence, the human hair becomes property only
when it is detached from the owner.)
3. Classification of Things (According to Appropriability)
(a) res nullius (belonging to no one)
These things belong to no one, and the
reason is that they have not yet been appropriated,
or because they have been abandoned (res
derelictae) by the owner with the intention of no
longer owning them.
(b) res communes (belonging to everyone)
owned by everybody in that their use and
enjoyment are given to all of mankind.
(c) res alicujus (belonging to someone)
These are objects, tangible or intangible,
which are owned privately, either in a collective or
individual capacity.
4. May Rights be considered as Property?
Yes. The word “property’’ is used
sometimes to denote the thing with respect to
which legal relations between persons exist — the
res over which rights (particularly ownership) may
be exercised — and sometimes to the rights with
respect to the thing.
In fact, property may be classified as to
their manifestability to the senses, which are:
(a) Corporeal or tangible;
(b) Incorporeal or intangible (e.g., rights).
5. Real rights vs. personal rights
Real right is the right or interest belonging
to a person over a specific thing without a definite
passive subject against whom such right may be
personally enforced.
Personal right is the right or power of a
person (creditor or obligee) to demand from
another (debtor or obligor) as a definite passive
subject, the fulfillment of the latter’s obligation.
Among the distinctions of real and personal rights are the
following:
(1) By number of persons who take part in
there is a definite active subject who has a right
against all persons generally as an indefinite passive
subject, while in personal right, there is a definite
active subject and a definite passive subject;
(2) By the subject-matter. — In real right,
the object is generally a corporeal thing, while in
personal right, it is always an incorporeal thing,
i.e., the prestation demanded of the debtor;
(3) By the manner in which the will of the
active subject acts. —In real rights, he generally
acts directly, while in personal right, he acts
indirectly through the promise of the obligor;
(4) By the causes of their creation. — Real
rights are created by “mode’’ and “title’’ (see Art.
712.), while personal rights are created merely by
“title’’;
(5) By the modes of their extinction. —
Real right is extinguished by the loss or destruction
of the thing over which it is exercised, while
personal right survives the subject matter; and
(6) By the nature of the actions arising
from the juridical relation. — Real right is directed
against the whole world, giving rise to real actions
(actio in rem) against third persons, while personal
right is binding or enforceable only against a
particular person, i.e., the debtor, giving rise to
personal actions (actio in personam) against such
debtor. (see 3 Sanchez Roman 6-7.)
6. Classification of Property: Real Property and personal
property (Article 414, NCC); Importance
Article 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.
SPANISH: “bienes immuebles’’ and “bienes
muebles.’’ ‘
AMERICAN: “real property’’ and “personal
property’’
(1) Basis of classification. — Article 414
gives the most fundamental juristic classification of
things considered with respect to ownership. It is
based on the nature of the thing itself (Ibid.), that
is, its mobility or immobility.
(2) Manner of classification. — The Civil
Code does not define real and personal property
but goes by way of enumeration. Real properties
are those enumerated in Article 415, and personal
properties are those enumerated in Articles 416
and 417.
(3) No absolute criterion. — The
enumerations are not complete nor do they supply
an absolute criterion on the distinction of property
into real and personal. Generally, however, real
properties are things that are permanently or
intended to be permanently attached or fixed to
another thing, or cannot be transferred from place
to place, or if they can be transferred, the transfer
cannot be done without injury or damage to the
immovable to which they are attached; otherwise,
they are personal properties.
7. Importance of classification
The classification of property into
immovables or movables 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 immovables
and movables.
Examples:
(a) In general, a donation of real property,
like land, must be in a public instrument, otherwise
the alienation will not be valid even as between the
parties to the transaction. (Art. 749). Upon the
other hand, the donation of an Audi automobile,
worth let us say, P1.8 million, needs only to be in a
private instrument. (Art. 748).
(b) The ownership of real property may be
acquired by prescription although there is bad
faith, in thirty (30) years (Art. 1137); whereas,
acquisition in bad faith of personal property needs
only eight (8) years. (Art. 1132).
(c) Generally, to affect third persons,
transactions involving real property must be
recorded in the Registry of Property; this is not so
in the case of personal property.
(d) In private international law, the
general rule is that immovables are governed by
the law of the country in which they are located,
whereas movables are governed by the personal
law of the owner which in some cases is the law of
his nationality and in other cases, the law of his
domicile.
(e) In criminal law, usurpation of property
can take place only with respect to real property.
On the other hand, robbery and theft can be
committed only against personal property.
(f) In procedure, actions concerning real
property (real action) are brought in the regional
trial court where the property or any part thereof
lies, whereas actions involving personal property
are brought in the court where the defendant or
any of its defendants reside or may be found, or
where the plaintiff or any of the plaintiffs resides,
at the election of the plaintiff. The proper forcible
entry and unlawful detainer; if the subject of the
complaint is personal property, the plaintiff may
avail of the provisional remedy of replevin or
manual delivery of personal property.
(g) In contracts, only real property can be
the subject matter of real mortgage and antichresis,
while only personal property can be the subject
matter of simple loan or mutuum, voluntary
deposit, pledge, and chattel mortgage.
8. Mixed property or semi-movables
While the classification of property into real and
personal is the most important, it is not, as already
mentioned, complete, for there are things which are strictly
neither movables nor immovables but partake of the nature
of both. They are thus called mixed, or the semi-movables.
Among them are:
(1) Movables (e.g., machines, paintings)
that are rendered immovable by reason of their
being immobilized by destination or through
attachment to immovables;
(2) Immovables but are treated as
movables because they can be transplanted (e.g.,
plants) or dismantled and moved (e.g., house of
light materials) to another place without impairing
their substance (3 Manresa 12.); and
(3) Animals in animal houses, pigeon
houses, etc. (par. 6.) which are classified as
immovables though transferable from place to
place or they can move by themselves.
B. IMMOVABLE PROPERTY (Art. 415)
Art. 415. The following are immovable property:
(1) Land, buildings, roads, and
constructions of all kinds adhered to the soil;
(2) Trees, plants, and growing fruits,
while they are attached to the land or form an
integral part of an immovable;
(3) Everything attached to an immovable
in a fixed manner, in such a way that it cannot be
separated therefrom without breaking the
material or deterioration of the object;
(4) Statues, reliefs, paintings or other
objects for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it reveals the
intention to attach them permanently to the
tenements;
(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;
(6) Animal houses, pigeon-houses,
beehives, fish ponds 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;
(7) Fertilizer actually used on a piece of
land;
(8) Mines, quarries, and slag dumps,
while the matter thereof forms part of the bed,
and waters either running or stagnant;
(9) Docks and structures which, though
floating, are intended by their nature and object
to remain at a fixed place on a river, lake, or
coast;
(10) Contracts for public works, and
servitudes and other real rights over immovable
property. (334a)
1. Definition of Immovable Property
The law does not define what properties
are immovable; they are merely enumerated.
While it is true that the dictionary defines
immovable property as that which is firmly fixed,
settled, or fastened, and while in general,
immovable property is that which is fixed in a
definite place, still there are many exceptions to
this general criterion. The etymological meaning
should, therefore, yield to the legal or juridical
significance attached to the term by the law. (See 3
Manresa 18). As matter of fact, the enumeration
 given in Art. 415 does not give an absolute
criterion as to which properties are real, and which
are personal. (See Standard Oil Co. of New York v.
Jaranillo, 44 Phil. 630).
2. Classification of Real Properties (NIDA)
They are those enumerated in Article 415. Property is
immovable or real:
(1) By nature, i.e., it cannot be carried
from place to place, like lands, roads, and trees
(pars. 1 and 2.);
(2) By incorporation, i.e., it is attached to
an immovable in a fixed manner to be an integral
part thereof, like buildings, walls or fences, trees,
statues, animal houses (pars. 1, 2, 3, 4, 6.);
(3) By destination, i.e., it is placed in an
immovable for the utility it gives to the activity
carried thereon, such as machinery installed in a
building to meet the needs of an industry in the
building, and docks on a river (pars. 4, 5, 6, 7, 9.);
and
(4) By analogy, i.e., it is so classified by
express provision of law because it is regarded as
united to the immovable property. (par. 10.)
3. Kinds of Real Properties
Paragraph 1: Land, buildings, roads, and
constructions of all kinds adhered to the soil;
Land is the best example of immovable property. It
is immovable by its very nature. And even if land is moved
by an earthquake, an extraordinary happening, the land
should still be considered immovable. A shovelful of land
however, should be considered personal property, since this
no longer adheres to the soil. If land is rented, it is still
immovable.
Buildings are considered immovable provided they
are more or less of a permanent structure, substantially
adhering to the land, and not mere superimpositions on the
land like barong-barongs or quonset fixtures and provided
there is the intent of permanent annexation. (See Salmond,
Jurisprudence, p. 449). Note that the law uses the term
“adhered’’ and not “superimposed.’’
May a house built on rented land be the object of a
mortgage? ANS.: Yes, in a real mortgage (real estate
mortgage). It may even be the subject of a chattel mortgage
provided two conditions are present; namely, that the
parties to the contract so agree, and that no innocent third
party will be prejudiced.
Though the law says “constructions of all kinds
adhered to the soil,” it is understood that the attachment
must be more or less permanent. (3 Manresa 18). A wall or a
fence would be a good example of this kind of real property
by incorporation. This is true even if the fence or wall is
built only of stones as long as there is an intent to
permanently annex the same.
Paragraph 2: Trees, plants, and growing fruits,
while they are attached to the land or form an
integral part of an immovable;
No matter what their size may be, trees and plants
are considered real property, by nature if they are the
spontaneous products of the soil, and by incorporation, if
they were planted thru labor. But the moment they are
detached or uprooted from the land, they become personal
property, except in the case of uprooted timber, if the land
is timber land. This is because, although no longer attached,
the timber still forms an “integral part” of the timber land
— immovable. (See 3 Manresa 22). Indeed, trees blown by a
typhoon still remain part of the land upon which they rest,
and should be considered real property. (See Walsh, The
Law on Property, pp. 9-10).
Growing crops, by express codal provisions, are
considered real property by incorporation. Moreover, under
the Rules of Court, growing crops are attached in the same
way as real property. (Rule 57, Sec. 7). However, a sale of
growing crops should be considered a sale of personal
property. (3 Manresa 22). This is because when the crops
are sold, it is understood that they are to be gathered.
Paragraph 3: Everything attached to an immovable
in a fixed manner, in such a way that it cannot be
separated therefrom without breaking the material
or deterioration of the object;
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: A fixed fire escape stairway firmly embedded in
the walls of a house, an aqueduct, or a sewer, or a well.
Distinctions between par. 3 and 4:
Par. 3 Par. 4
Cannot be separated from Can be separated from
immovable without immovable without
breaking or deterioration breaking or deterioration
Need not be placed by the Must be placed by the
owner. (Ladera v. Hodges, owner, or by his agent,
CA, 48 O.G. 5374). express or implied
Real property by Real property by
incorporation incorporation and
destination
Query: Suppose the properties referred to in
paragraph 3 are temporarily removed, but there is an
intention to replace them, should they be considered real or
personal property? ANS.: It is believed that they should be
regarded as personal property inasmuch as the
“incorporation” has ceased. The Partidas contained an
express provision making said property real, but in view of
the elimination in the Code of said provision, we may say
that same should no longer apply, despite a contrary
opinion expressed by a member of the Code Commission.
(Capistrano, 1 Civil Code, p. 338).
Paragraph 4: Statues, reliefs, paintings or other
objects for use or ornamentation, placed in
buildings or on lands by the owner of the
immovable in such a manner that it reveals the
intention to attach them permanently to the
tenements;
 Examples: A fixed statue in the garden of a house, a
permanent painting on the ceiling, a picture embedded in
the concrete walls of a house, a rug or carpet fastened to the
floor, as in the case of wall to wall carpeting.
The objects must be placed by the owner of the
immovable (buildings or lands) and not necessarily by the
owner of the object. Of course, the owner of the building or
land may act thru his agent, or if he be insane, thru his duly
appointed guardian or through a lessee when there is an
agreement that what the lessee attaches will become the
property of the lessor. (See Valdez v. Altagracia, 225 U.S.
58). If placed by a mere tenant, the objects must remain
chattels or personalty for the purposes of the Chattel
Mortgage Law. (Davao Sawmill v. Castillo, 61 Phil. 709).
If during the construction of my house, I request
my neighbor to keep in the meantime a painting (with
frame) which I own and my friend attaches said painting on
his own wall, should the painting be regarded as real or
personal property? ANS.: Personal, in view of the lack of
intent to attach permanently in my neighbor’s house. Note
the word “permanently” in paragraph No. 4.
Paragraph 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;
Essential Requisites
1) The placing must be made by the owner
of the tenement, his agent, or duly authorized legal
representative.
2) The industry or works must be carried
on in the building or on the land. A transportation
business is not carried on in a building or in the
compound. (Mindanao Bus Co. v. City Assessor, L-
17870, Sep. 29, 1962).
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. [Thus, cash registers, typewriters,
calculators, computers, fax machines, etc., usually
found and used in hotels, restaurants, theaters, etc.
are merely incidentals, and not 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. On the other
hand, 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. (Mindanao Bus Co. v. City
Assessor and Treasurer, L-17870, Sep. 29, 1962).
If the machine is still in the building, but is no
longer used in the industry conducted therein, the machine
reverts to the condition of a chattel. Upon the other hand, if
still needed for the industry, but separated from the
tenement temporarily, the property continues to be
immovable, inasmuch as paragraph 5 refers, not to real
property by incorporation, but to real property by
destination or purpose.
When is machinery attached to land or a
tenement considered immovable? [ANS.: Par. 5,
Art. 415].
Give the exception. [ANS.: When placed
on the land or tenement by a tenant.] (Davao
Sawmill v. Castillo, supra).
Give the exception to the exception.
[ANS.: when the tenant had promised to leave the
machinery on the tenement at the end of the lease,
or when he acted only as agent of the owner of the
land.]. (Valdez v. Central, supra).
Paragraph 6: Animal houses, pigeon-houses,
beehives, fish ponds 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;
The “houses” referred to here may already be
deemed included in paragraph 1 when speaking of
“constructions of all kinds adhered to the soil.” (See 3
Manresa 31).
It is submitted that 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 the
case of a homing pigeon. But from the point of view of
criminal law, they must be considered as personal property,
and may properly be the object of theft or robbery.
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 is itself 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.
Paragraph 7: Fertilizer actually used on a piece of
land;
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.
Paragraph 8: Mines, quarries, and slag dumps,
while the matter thereof forms part of the bed, and
waters either running or stagnant;
Mines, including the minerals still attached
thereto, are real properties, but when the minerals have
been extracted, the latter become chattels. (See 40 C.J., pp.
903-904).
“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. (Nordstrom v. Sivertson-Johnson
Min., etc. Co., 5 Alaska 204).
The “waters” referred to are those still attached to
or running thru the soil or ground. But “water” itself as
distinguished from “waters,” is clearly personal property.
Upon the other hand, canals, rivers, lakes, and such part of
the sea as may be the object of appropriation, are classified
as real property.
Paragraph 9: Docks and structures which, though
floating, are intended by their nature and object to
remain at a fixed place on a river, lake, or coast;
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
immovables. 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 journey from place to place, it assumes
the category of a vessel.
Vessels are considered personal property. As a
matter of fact, they are indeed very movable. (See
Philippine Refining Co., Inc. v. Jarque, 61 Phil. 229).
Is the steamship President Cleveland personal or
real property? ANS.: It can be moved from place to
place, hence, it is personal property, although it
PARTAKES THE NATURE of real property in view
of its importance in the world of commerce.
Paragraph 10: Contracts for public works, and
servitudes and other real rights over immovable
property. (334a)
The properties referred to in paragraph 10 are not
material things but rights, which are necessarily intangible.
(See 3 Manresa 11). The piece of paper on which the
contract for public works has been written is necessarily
personal property, but the contract itself, or rather, the
right to the contract, is real property. A servitude or
easement is an encumbrance imposed on an immovable for
the benefit of another immovable belonging to another
owner, or for the benefit of a person, group of persons, or a
community (like the easement of right of way). (Arts. 613-
614). Other real rights over real property include real
mortgage (see Hongkong and Shanghai Bank v. Aldecoa and
Co., 30 Phil. 255), antichresis, possessory retention, usufruct
and leases of real property, when the leases have been
registered in the Registry of Property; or even if not
registered, if their duration is for more than a year.
Upon the other hand, the usufruct of personal
property or a lease of personal property, should be
considered personal property.
C. MOVABLE PROPERTY
1. Classes of movable/personal property (Art. 416, 417)
Art. 416. The following things are deemed to be personal
property:
(1) Those movables susceptible of appropriation
which are not included in the preceding article;
(2) Real property which by any special provision
of law is considered as personalty;
(3) Forces of nature which are brought under
control by science; and
(4) In general, all things which can be transported
from place to place without impairment of the real
property to which they are fixed.
Art. 417. The following are also considered as personal
property:
(1) Obligations and actions which have for their
object movables or demandable sums; and
(2) Shares of stock of agricultural, commercial
and industrial entities, although they may have
real estate.
For Paragraph 1 — a fountain pen; a piano;
animals.
For Paragraph 2 — growing crops for the purposes
of the Chattel Mortgage Law (Sibal v. Valdez, 50 Phil. 512);
machinery placed on a tenement by a tenant who did not
act as the agent of the tenement owner. (Davao Sawmill v.
Castillo, 61 Phil. 709).
For Paragraph 3 — electricity, gas, light, nitrogen.
(See U.S. v. Carlos, 21 Phil. 543)
For Paragraph 4 — machinery not attached to land
nor needed for the carrying on of an industry conducted
therein; portable radio; a laptop computer; a diploma
hanging on the wall.
A patent, a copyright, the right to an invention — these are
intellectual properties which should be considered as
personal property.
2. Consumable / Non-consumables, Fungibles / Non-
fungibles (Art. 418)
Art. 418. Movable property is either consumable or non-
consumable. To the first class belong those movables which
cannot be used in a manner appropriate to their nature
without their being consumed; to the second class belong
all the others.
(1) Consumable and Non-Consumable Properties
Consumable — this cannot be used according to its
nature without its being consumed.
Non-consumable — any other kind of movable
property
(2) Classification and Examples
(a) According to their nature: consumable and non-
consumable.
(b) According to the intention of the parties:
fungible and non-fungible (res fungibles and res
nec fungibles).
Explanation:
1) If it is agreed that the identical thing be
returned, it is non-fungible, even though by nature
 it is consumable. Hence, if I borrow a sack of rice,
not for consumption but for display or exhibition
merely (ad ostentationem), the rice is considered
non-fungible.
2) If it is agreed that the equivalent be
returned, the property is fungible. Hence, if I
borrow vinegar (to consume) and promise to return
an equivalent amount of the same quality, the
property is not only consumable; it is also fungible.
(See also Arnott v. Kansas Pac. Ry. Co., 19 Kansas
95).
3) In the law of credit transactions, a loan
of rice for consumption is considered a simple loan
or mutuum; while a loan of rice for exhibition is a
commodatum.
[NOTE: The Civil Code, in many instances, uses
the words “consumable’’ and “fungible’’ interchangeably. ].
[NOTE: It is evident, however, that fungibles are
those replaceable by an equal quality and quantity, either
by the nature of things, or by common agreement. If
irreplaceable, because the identical objects must be
returned, they are referred to as non-fungibles.].
D. PROPERTY IN RELATION TO THE PERSON TO
WHOM IT BELONGS
1. Classification of Property according to Ownership (Art.
419)
Art. 419. Property is either of public dominion or of
private ownership.
This article expressly provides that properties are owned
either:
(a) in a public capacity (dominio publico)
Heirs of Proceso Bautistav. Sps. Barza
GR 79167, May 7, 1992
The function of administering and disposing of
lands of the public domain in the manner
prescribed by law is not entrusted to the courts but
to executive officials.
(b) or in a private capacity (propiedad privado)
Regarding the state, it may own properties both in
its public capacity (properties of public dominion)
and in its private capacity (patrimonial property).
2. Property of Public Dominion (Art. 420)
Art. 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 for the development of the national
wealth.
i. Kinds
(a) For public use — like roads, canals
(may be used by ANYBODY).
(b) For public service — like national
government buildings, army rifles, army vessels
(may be used only by duly authorized persons).
(c) For the development of national wealth
— like our natural resources.
ii. Those of similar character
Examples are the following:
(a) Public streams. (Com. v. Meneses, 38
O.G. No. 123, p. 2839).
(b) Natural beds of rivers. (Meneses v.
Commonwealth, 69 Phil. 647).
(c) River channels. (Meneses v.
Commonwealth, supra).
(d) Waters of rivers. (Meneses v.
Commonwealth, supra).
(e) Creeks — because “a creek is no other
than an arm extending from a river.” (Mercado v.
Mun. Pres. of Macabebe, 59 Phil. 592; Samson v.
Dionisio, 11 Phil. 538).
iii. Characteristics
(a) They are outside the commerce of man,
and cannot be leased, donated, sold, or be the
object of any contract (Mun. of Cavite v. Rojas, 30
Phil. 602), except insofar as they may be the object
of repairs or improvements and other incidental
things of similar character.
(b) They cannot be acquired by
prescription; no matter how long the possession of
the properties has been, “there can be no
prescription against the State regarding property of
the public domain.” (Palanca v. Commonwealth, 40
O.G. 6th S, No. 10, p. 148; Meneses v.
Commonwealth, 69 Phil. 505). “Property of the
State or any of its subdivisions not patrimonial in
character shall not be the object of prescription.”
(Art. 1113). Even a city or a municipality cannot
acquire them by prescription as against the State.
(See City of Manila v. Ins. Gov’t., 10 Phil. 327).
(c) They cannot be registered under the
Land Registration Law and be the subject of a
Torrens Title; if erroneously included in a Torrens
Title, the land involved remains property of public
dominion. (See Palanca v. Commonwealth, 69 Phil.
449; see also Bishop of Calbayog v. Director of
Lands, L-23481, June 29, 1972, 45 SCRA 418).
(d) They, as well as their usufruct, cannot
be levied upon by execution, nor can they be
attached. (Tufexis v. Olaguera, 32 Phil. 654; Tan
Toco v. Mun. Council of Iloilo, 49 Phil. 52).
(e) In general, they can be used by
everybody.
 (f) They may be either real or personal
property, for it will be noted that the law here
makes no distinction.
iv. Alienation of Public Agricultural Lands
Under the Constitution, all natural
resources belong to the State. With the exception
of public agricultural lands, they are not subject to
alienation. (Art. XII, Sec. 2 thereof.) Unless public
land is shown to have been reclassified and
alienated by the State to a private person, it
remains part of the inalienable public domain. All
lands not otherwise appearing to be clearly within
private ownership are presumed to belong to the
State. This principle is rooted in the Regalian
doctrine under which the State is the source of any
asserted right to ownership of land.
(1) Before public agricultural lands are
made available for disposition (under the Public
Land Act [C.A. No. 141] as amended.), they are
property of public dominion for the development
of the national wealth. They are not capable of
private appropriation, and possession thereof,
however long, cannot convert them into private
property. After being made so available, they
become patrimonial or private property of the
State; and when acquired by private individuals,
they become private property.
(2) In the hands of a government agency
tasked and authorized to dispose of alienable or
disposable lands of the public domain, these lands
are still public, not private lands. Only when
qualified parties (i.e., individuals; see Constitution,
Art. XII, Sec. 2.) acquire these lands will they
become private lands. (Chavez v. Public Estates
Authority, 384 SCRA 152 [2000].)
v. Patrimonial Property (Art. 421)
Art. 421. All other property of the State, which is not of the
character stated in the preceding article, is patrimonial
property.
a. Definition
Patrimonial property of the State is the
property it owns but which is not devoted to public
use, public service, or the development of the
national wealth. It is wealth owned by the State in
its private, as distinguished from its public,
capacity.
b. Examples
Examples of patrimonial property are:
incomes or rents of the State (Ibid.); vacant lands
without known owner or possessor; property
escheated to the State; property acquired in
execution and tax sales; property donated to the
government; waterworks; slaughter houses;
markets; cemeteries, etc. (see City of Manila v.
Intermediate Appellate Court, 179 SCRA 428
[1990].) It has been held that the San Lazaro Estate
in Manila, disposition of which is governed by Act
No. 2260, as amended (Tipton v. Andueza, 5 Phil.
477 [1906].) and the so-called “friar lands,’’ the
disposition of which is governed by Act No. 1120,
the Friar Lands Act (Jacinto v. Director of Lands, 49
Phil. 853 [1927]; Alonzo v. Cebu Country Club, 417
SCRA 115 [2005].), are patrimonial property of the
State.
c. Conversion of Property of Public Domain to
Patrimonial Property (Art. 422)
Art. 422. Property of public dominion, when no longer
intended for public use or for public service, shall form
part of the patrimonial property of the State.
In Faustino Ignacio v. Dir. of Lands, L-
12958, May 30, 1960, the Supreme Court, citing
Natividad v. Dir. of Lands (CA) (37 O.G., p. 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 or for Coast Guard Service. If no such
declaration has been made by 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 thru the
executive department or the legislature, the parcel
in question continues to be part of the public
domain, and cannot be subject to acquisitive
prescription.
[NOTE: This case involved lands gained by the sea
which thus are considered properties of the public
dominion under Art. 4 of the Spanish Law of
Waters of Aug. 3, 1866.]
vi. Properties of Political Subdivisions (Art. 423,
424)
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, 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,
without prejudice to the provisions of special laws.
The same principles governing property of public
dominion of the State are applicable to property of public
dominion of provinces, cities, and municipalities. (3
Manresa 111.) Article 423 classifies property of political
subdivisions into property for public use and patrimonial
property. All property other than property for public use
enumerated in Article 424 are patrimonial property. Note
that Articles 423 and 424 speak of property for public use,
indicating that property for public service are patrimonial.
On the other hand, property of the State intended for public
service, without being for public use, is property of public
dominion. (See Art. 420[2].)
 Political subdivisions cannot register as their own
any part of the public domain, unless it is first shown that a
grant thereof has been made or possession has been enjoyed
during the period necessary to establish a presumption of
ownership. (see City of Manila v. Insular Government, 10
Phil. 327 [1908]; Catbalogan v. Director of Lands, 17 Phil.
216 [1910].) They have no authority whatsoever to control
or regulate the use of public properties such as roads and
parks unless specific authority is vested upon them by
Congress (e.g., Sec. 21 [closure and opening of roads], Local
Government Code), for they are under the absolute
authority of Congress. (Macasiano v. Diokno, 212 SCRA 464
[1992].)
vii. Properties of Private Ownership (Art. 425)
Art. 425. Property of private ownership, besides
the patrimonial property of the State, provinces,
cities, and municipalities, consists of all property
belonging to private persons, either individually
or collectively. (345a)
They refer to all property belonging to private
persons either individually or collectively and those
belonging to the State and any of its political subdivisions
which are patrimonial in nature. Collective ownership
includes co-ownership and ownership by corporations,
partnerships, and other juridical entities which are allowed
under the law to acquire and possess property of all kinds.
(see Arts. 44-47.)
OWNERSHIP
A. OWNERSHIP IN GENERAL
1. Definition (Art. 427)
Art. 427. Ownership may be exercised over things or
rights.
Ownership is the independent and general right of
a person to control a thing particularly in his possession,
enjoyment, disposition, and recovery, subject to no
restrictions except those imposed by the state or private
persons, without prejudice to the provisions of the law.
2. Kinds of Ownership
(a) Full ownership (dominium or jus in re propia)
— this includes all the rights of an owner.
(b) Naked ownership (nuda proprietas) — this is
ownership where the right to the use and the fruits has
been denied.
[NOTE: 1) Naked ownership plus usufruct equals
full ownership. 2) Usufruct equals full ownership minus
naked ownership. 3) Naked ownership equals full
ownership minus usufruct.].
[NOTE: A usufructuary’s right may be called jus in
re aliena because he possesses a right over a thing owned by
another.].
(c) Sole ownership — where the ownership is
vested in only one person.
(d) Co-ownership (or Tenancy in Common) —
when the ownership is vested in two or more owners.
Manresa says: “The concept of co-ownership is unity of the
property, and plurality of the subjects. Each co-owner,
together with the other co-owners, is the owner of the
whole, and at the same time, the owner of an undivided
aliquot part thereof.” (3 Manresa 368-387; Sison v. Fetalino,
47 O.G. No. 1, 300).
3. Rights of an Owner (Arts. 428-430, 437)
Art. 428. The owner has the right to enjoy and
dispose of a thing, without other limitations than those
established by law.
The owner has also a right of action against the
holder and possessor of the thing in order to recover it.
Art. 430. Every owner may enclose or fence his
land or tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to
servitudes constituted thereon.
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
excavation 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.

i. Use, Possession, Fruits and Disposition
The right to enjoy under Art. 428 includes:
(a) The right to possess
(b) The right to use
(c) The right to the fruits.
The right to dispose includes:
(a) The right to consume or destroy or
abuse
(b) The right to encumber or alienate.
In Roman Law:
(a) Jus possidendi — the right to possess
(b) Jus utendi — the right to use
(c) Jus fruendi — the right to the fruits
(d) Jus abutendi — the right to consume (and also
to transform or abuse)
(e) Jus disponendi — the right to dispose
The right to possess means the right to hold a thing
or to enjoy a right. In either case, it means that the thing or
right is subject to the control of my will.
The right to use includes the right to exclude any
person, as a rule, from the enjoyment and disposal thereof.
For this purpose, the owner-possessor may use such force as
may be reasonably necessary to repel or prevent an actual or
threatened unlawful physical invasion or usurpation of the
property. (Art. 429). Upon the other hand, the owner of a
thing cannot make use thereof in such manner as to injure
the rights of a third person. (Art. 431).
The right to the fruits includes the right to three
kinds of fruits — natural, industrial and civil fruits (such as
rents from buildings). The right to natural fruits extends to
the young of animals. (Art. 441).
In Roman law, jus abutendi did not really mean the
right to abuse, but the right to consume. However, modern
terminology allows both meanings. A person can indeed
burn his own house if in an isolated place, but not where
the burning would endanger the properties of others. A
person can dispose of his wealth, but he must leave enough
for his own support and for those whom he is obliged to
support. (Art. 750). If a person wastes his money for the
purpose of depriving his compulsory heirs of their rightful
legitime, he may be declared a spendthrift or prodigal.
(Martinez v. Martinez, 1 Phil. 182).
The right to dispose includes the right to donate, to
sell, to pledge or mortgage. However, a seller need not be
the owner at the time of perfection of the contract of sale. It
is sufficient that he be the owner at the time of delivery.
(Art. 1459). It is essential in the contract of mortgage or
pledge that the mortgagor or the pledgor be the owner of
the thing mortgaged or pledged, otherwise the contract is
null and void. (Art. 2085; see also Contreras v. China
Banking Corp., [CA] GR 74, May 25, 1946).
ii. Doctrine of Self-Help
Art. 429. The owner or lawful possessor of a
thing has the right to exclude any person from the
enjoyment and disposal thereof. For this purpose, he may
use such force as may be reasonably necessary to repel or
prevent an actual or threatened unlawful physical invasion
or usurpation of his property.
Self-defense is treated of in Art. 11, par. 1 of the
Revised Penal Code, and includes not only defense to a
man’s person but also that of his rights, including the right
to property. Although in a decision of May 7, 1913 of the
Supreme Court of Spain, it was held that force could be used
only when physical harm threatens the owner or protector
of the property, under Art. 429 of the Civil Code, force may
be used even without such threatened bodily danger —
provided that defense, and not vengeance, is involved.
iii. Enclosing and Fencing (Art. 430)
Art. 430. Every owner may enclose or fence his land or
tenements by means of walls, ditches, live or dead hedges,
or by any other means without detriment to servitudes
constituted thereon.
Example: A person may fence off his house and lot
unless he denies others a right of way to which the latter
may be entitled. In one case, the lands of A were being
flooded because B, the owner of certain lands, in order to
maintain a fish pond, closed his (B’s) estate, thus closing the
outlet to the river of water on A’s property. The question
was whether B had the right to so fence his estate.
HELD: No, B had no right to prevent the outflow
of the water from A’s estate. While he had the right to
fence his estate, till he should not impair the servitudes or
burdens constituted thereon. (Lunod v. Meneses, 11 Phil.
128).
iv. Surface Rights of Landowner (Art. 437)
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.
a. Extent
If a person owns a piece of land, it is
understood that he also owns its surface, up to the
boundaries of the land, with the right to make
thereon allowable constructions, plantings, and
excavations.
b. Limitations
The limitations are:
(a) Servitudes or easements
(b) Special laws — like the
Mining Law
(c) Ordinances
(d) The reasonable requirements
of aerial navigation
(e) Principles on human relations
(justice, honesty, good faith) and the
prevention of injury to the rights of third
persons. (Arts. 19 and 431). Example:
 unnecessary obstruction of the light and
view of a neighbor.
Surface right must also be restricted by the
reasonable requirements of underground shelters
and depots with proper state permission, as long as
the surface right is not substantially disturbed. (If
ownership does not extend ad coelum —
indefinitely upwards to the sky, it should not also
extend usque ad internos — indefinitely
downwards). (Observations on the new Civil Code,
15 Lawyer’s Journal, p. 499, Oct. 31, 1950). On this
point, the Code Commission answered that a
special detailed law was needed on the points
touched upon by the Justice. (See Memorandum of
the Code Com., Feb. 17, 1951, p. 2).
4. Recovery of Possession and/or Ownership
i. Actions available to owner
a. Recovery of Personal Property
i. Replevin
1. Definition
Replevin is defined as an action or
provisional remedy where the complainant prays
for the recovery of the possession of personal
property. (Sec. 1, Rule 60, Rules of Court).
[NOTE: Machinery and equipment used
for an industry and indispensable for the carrying
on of such industry, cannot be the subject of
replevin, because under the premises, they are real,
and not personal property. (Machinery and
Engineering Supplies, Inc. v. Court of Appeals, 96
Phil 70).].
At the commencement of the action, or at
any time before the other party answers, the
applicant may apply for an order of the delivery of
such property to him. (See Sec. 1, Rule 60, Rules of
Court).
When he applies for the order, he must
show by his own affidavit or that of some other
person who personally knows of the facts —
1) That the applicant is the owner
of the property claimed, particularly
describing it, or is entitled to the
possession thereof;
2) That the property is wrongfully
detained by the adverse party, alleging the
cause of detention thereof according to his
best knowledge, information and belief;
3) That it has not been distrained
or taken for a tax assessment or fine
pursuant to law or seized under a writ of
execution or preliminary attachment or
otherwise placed under custodia legis or if
so seized, that it is exempt from such
seizure or custody; and
4) The actual market value of the property.
(Sec. 2, Rule 60, Rules of Court).
The applicant must also give a bond,
executed to the adverse party in double the value
of the property as stated in the affidavit
aforementioned, for the return of the property to
the adverse party if such return thereof be
adjudged, and for the payment to the adverse party
of such sum as he may recover from the applicant
in the action. (Sec. 2, Rule 60, Rules of Court).
The court then orders the sheriff to take
such property into his custody. (See Sec. 3, Rule 60,
Rules of Court). Under the old law, it was the clerk
of court who made the order. (Sec. 263, Act 190).
If the property or any part thereof be
concealed in a building or enclosure, and not
delivered upon demand, the sheriff must cause the
building or enclosure to be broken open. He then
takes the property. (See Sec. 4, Rule 60, Rules of
Court).
b. Recovery of Real Property
i. Forcible Entry and Unlawful Detainer 1. Nature of the
action/s
Forcible entry is a summary action to
recover material or physical possession of real
property when a person originally in possession
was deprived thereof by force, intimidation,
strategy, threat, or stealth. (Keyword is FISTS). (See
Rule 70, Sec. 1, Rules of Court).
Unlawful detainer is the action that must
be brought when possession by a landlord, vendor,
vendee or other person of any land or building is
being unlawfully withheld after the expiration or
termination of the right to hold possession, by
virtue of any contract, express or implied. In such a
case, prior physical possession IS NOT required.
(Sps. Benitez v. CA, 77 SCAD 793 [1997]). It is,
however, not the proper remedy if the purpose is
not to recover possession but to exact specific
performance of a contract. (Municipality of
Batangas v. Santos, et al.,
L-4012, June 30, 1952).
Forcible entry and unlawful detainer must
be filed in the MTC and not the RTC regardless of
the assessed value of the property.
[NOTE: To make out a case of unlawful detainer,
the complaint must show that the withholding of
possession, or the refusal to vacate, is UNLAWFUL.
Thus, where the complaint shows prior possession
by the defendant, but does NOT allege that the
right of possession had terminated, and that
occupancy was being unlawfully withheld from the
plaintiff, there is NO case of unlawful detainer.
However, the precise terminology of the law does
not necessarily have to be employed. (Valderrama
Lumber Manufacturers’ Co. v. L.S. Sarmiento Co.,
L-18535, May 30, 1962).].
[NOTE: A person or squatter who occupies the
land of another at the latter’s tolerance or
permission, without any contract between them, is
necessarily bound by an implied promise that he
will vacate upon demand, failing which, a
summary action for ejectment or unlawful detainer
is the proper remedy against him. (Yu v. De Lara,
et al., L-16084, Nov. 30, 1962).].
2. Prescriptive Period
In forcible entry, the action must be
brought within one year from the dispossession.
However, in case of strategy or stealth, it would
seem that the better rule would be to count the
period of one year from the time of DISCOVERY
of such strategy or stealth.
In unlawful detainer, the action must be
brought within one year from the time possession
becomes unlawful, thus —
1) If there is a fixed period for the
termination of the lease, the lease ends
automatically without need of any
demand; hence, the one-year period
begins from the expiration of the lease.
2) If the reason for ejectment is non-
payment of rent or the non-fulfillment of
the conditions of the lease, then the one-
year period must be counted from the date
of demand to vacate.
(Thus, if the demand to vacate comes only
3 years from the time tenant had begun not to pay
the rents, the landlord still has a period of one year
to be counted from the date of such demand.)
[NOTE: The demand to vacate must be absolute,
not conditional. Moreover, the complaint must
state WHEN the demand was made, and the fact
that such demand had been served personally, or
by serving written notice, or by posting such
notice. (Gallarde v. Moran, L-19572, July 30, 1965).
The demand must be made at least 5 days
(building) or 15 days (land) before the action is
brought. (Ibid., citing Sec. 2, Rule 70, Rules of
Court).].
[NOTE: If several demands had been made, the
period of one year must be counted 5 days or 15
days as the case may be from the time of the
LATEST demand, unless in the meantime an accion
publiciana has been brought. (Calubayan v.
Pascual, L-22645, Sep. 18, 1967).].
3. Issues involved
The issue involved is mere physical
possession (possession de facto) and not juridical
possession (possession de jure) nor ownership. (See
Maddammu v. Court, 74 Phil. 230; Mercado v. Go
Bio, 78 Phil. 279; Masallo v. Cesar, 39 Phil. 134).
However, issues of ownership may be tackled if it
is determinative of the case.
[NOTE: If the defendants in a case are evidently
possessors and sales applicants in good faith of
public land, and the case does not involve the
failure of a tenant to pay rent, the action is one
involving the right of ownership and possession,
and is not one of unlawful detainer. (Garcia v.
Muñoz, L-11613, 1958).].
ii. Accion Publiciana and Accion Reivindicatoria
The accion publiciana is intended for the recovery
of the better right to possess, and is a plenary action in an
ordinary civil proceeding and must be brought within a
period of ten years from the time of the dispossession,
otherwise, the real right of possession is lost. (See Art. 555,
No. 4). It must be filed in the MTC if the assessed value of
the property is less than 20 000; otherwise, in the RTC.
There are two (2) kinds of accion publiciana:
1) That where the entry was not obtained thru
FISTS (fraud, intimidation, stealth, threat, or
strategy). (This can be brought as soon as the
dispossession takes place, without waiting for the
lapse of one year).
2) That where the one (1)-year period for bringing
forcible entry or unlawful detainer has already
expired.
The accion reivindicatoria or reivindicatory action
is defined as an action to recover ownership over real
property. It must be filed in the MTC if the assessed value of
the property is less than 20 000; otherwise, in the RTC. It
must be brought within 10 years or 30 years as the case may
be (depending on whether the other party seeks to obtain
ownership by ordinary or extraordinary prescription). It is
imprescriptible if the plaintiff has a Torrens title because
prescription does not lie to registered lands.
In the reivindicatory action, the issue involved is
ownership, and for this purpose, evidence of title or mode
may be introduced. On this point of ownership, the action
differs from accion publiciana where the issue is the better
right of possession (possession de jure); and from “forcible
entry” or “unlawful detainer,” where the issue is material
possession (possession de facto). All three actions however,
though involving real property, are actions in personam,
and are therefore binding only upon the parties and privies
thereto.
1. Prescriptive Period
Accion Publiciana must be brought within
a period of 10 years from the date when possession
is lost.
Accion Reivindicatoria must be brought
within 10 years or 30 years as the case may be
(depending on whether the other party seeks to
obtain ownership by ordinary or extraordinary
prescription). It is imprescriptible if the plaintiff
has a torrens title because prescription does not lie
to registered lands.
2. Issues involved
 The issue in Accion Publiciana is
possession while in Accion Reivindicatoria is
ownership.
3. Nature of the action
Accion publiciana is an action in personam
while Accion Reivindicatoria is an action in rem.
a. Distinguished from action to recover title
or ownership
iii. Action to Recover is based on Ownership
In De Guzman v. Court of Appeals, the Court held
that "[t]he essence of an action for reconveyance is that the
decree of registration is respected as incontrovertible but
what is sought instead is the transfer of the property which
has been wrongfully or erroneously registered in another
person’s name, to its rightful owner or to one with a better
right." Indeed, in an action for reconveyance filed by a
private individual, the property does not go back to the
State.
It must be remembered that reconveyance is a
remedy of those whose property has been wrongfully or
erroneously registered in the name of another. Such
recourse, however, cannot be availed of once the property
has passed to an innocent purchaser for value. For an action
for reconveyance to prosper, the property should not have
passed into the hands of an innocent purchaser for value.
The action prescribes after 4 years from the time
the property was wrongfully registered to another person. If
based on constructive trust, the action prescribes in 10
years. However, if the plaintiff is in possession of the
property, the action is imprescriptible.
iv. Other Actions for Recovery of Possession
1. Injunction
Injunction – judicial process whereby a person is
required to do or refrain from doing a particular
thing
Requisites:
1. There must be a clear and positive right
over the property in question which should be
judicially protected through a writ
2. the acts against which the injunction is
to be directed are violative of such right
When is it allowed:
1. in actions for forcible entry, the
dispossessed plaintiff may file, within 10 days from
filing the complaint, a motion for preliminary
mandatory injunction to restore him in possession
2. in ejectment cases where the appeal is
taken, the lessor is given the same remedy
3. where the actual possessor of the
property who is admittedly the owner, seeks
protection from repeated or further intrusions into
his property.
4. when there is a clear finding of a right
of ownership and possession of a land in favor of
the party whose claims the subject property in
possession of another is the undisputed owner as
where the property is covered by a Torrens title
pointing to the party as the owner
5. when urgency, expediency, and
necessity require immediate possession as where
material and irreparable injury will be done which
cannot be compensated by damages.
A preliminary injunction or temporary restraining
order may be granted only when, among other things, the
applicant, not explicitly exempted, files with the court,
where the action or proceeding is pending, a bond executed
to the party or person enjoined, in an amount to be fixed by
the court, to the effect that the applicant will pay such party
or person all damages which he may sustain by reason of
the injunction or temporary restraining order if the court
should finally decide that the applicant was not entitled
thereto. Upon approval of the requisite bond, a writ of
preliminary injunction shall be issued. Thus, the posting of
a bond is a condition sine qua non for a writ of preliminary
injunction to be issued.
-The injunction bond is intended as a security for
damages in case it is finally decided that the injunction
ought not to have been granted. Its principal purpose is to
protect the enjoined party against loss or damage by reason
of the injunction, and the bond is usually conditioned
accordingly.
2. Writ of Possession
A writ of possession used in connection
with the Land Registration Law is an order
directing the sheriff to place a successful registrant
under the Torrens system in possession of the
property covered by a decree of the Court. (See Sec.
17, Act 496 as amended by Sec. 6 of Act 680). Thus,
it is NOT essential for the successful litigant to
institute another action for the precise purpose of
obtaining possession of the land, otherwise there
would be multiplicity of suits. (Marcelo v. Mencias,
L-15609, Apr. 29, 1960).
A writ of possession shall issue only in the
following instances:
(1) land registration proceedings;
(2) extrajudicial foreclosure of mortgage of
real property;
(3) judicial foreclosure of property
provided that the mortgagor has possession and no
third party has intervened, and
(4) execution sales.
And even if the decree of registration is
attacked in another case as being fraudulent, the
mere pendency of this ordinary action is not a bar
to the issuance of the writ of possession applied for
by the registered owner. (See Sorongon v.
Makalintal, 80 Phil. 259). If the writ of possession
cannot be issued to the successful registrant, and he
would be compelled to institute other actions for
the recovery of his property, we may well say that
he cannot enjoy the fruits of his victory. (Pasay
Estate Co. v. Del Rosario, 11 Phil. 39; Manlapas v.
Llorente, 48 Phil. 298).

If the writ of possession implies the
delivery of possession of the land to the successful
litigant therein, a writ of DEMOLITION must
likewise issue, otherwise, the writ of possession
may be ineffective. (Marcelo v. Mencias, L-15609,
Apr. 29, 1960). Indeed, a writ of demolition is
merely a complement of a writ of possession.
(Lucero v. Loot, L-16995, Oct. 28, 1968).
The right to demand the writ of possession
never prescribes. The reason given by the court
being the provision of Sec. 46 of Act 496 that lands
with a Torrens title cannot be acquired by
prescription (Manlapas and Tolentino v. Dorente,
48 Phil. 298), nor will laches or neglect defeat the
right to recovery. (J.M. Tuason and Co. v.
Macalingdong, L-15398, Dec. 29, 1962). If the writ
of possession has been issued once, it will not be
issued again. (Locsin and De Guzman v. Diaz, 42
Phil. 22).
Nor will a writ of possession ever be issued
against a person who began to possess the land only
after the land had already been registered.
(Sorongon, et al. v. Makalintal, et al., 45 O.G. 9, p.
3820, Sep. 1, 1949). Indeed such subsequent
possessors cannot be summarily ousted merely by a
motion for a writ of possession, regardless of the
title or right which they claim to have. (Maglasang
v. Maceren, et al., 46 O.G. 11, p. 90, Supp., Nov.
1950). The remedy for the registered owner would
thus be only forcible entry, unlawful detainer,
accion publiciana or accion reivindicatoria.
(Manuel v. Rosauro, 56 Phil. 365).
NOTA BENE: The issuance of the writ of
possession is SUMMARY IN NATURE, hence, the
same cannot be considered a judgment on the
merits which is defined as “one rendered after a
determination of which party is RIGHT, as
distinguished from a judgment rendered upon some
preliminary or formal technical point.’’ (A.G.
Development Corp. v. NLRC, 88 SCAD 518 [1997]).
5. Real Action vs. Personal Action
In a real action, the plaintiff seeks the recovery of
real property, or, as indicated in section 2(a) of Rule 4, a real
action is an action affecting title to real property or for the
recovery of possession, or for partition or condemnation of,
or foreclosure of a mortgage on, real property.
In a personal action, the plaintiff seeks the
recovery of personal property, the enforcement of a
contract or the recovery of damages. (Hernandez v. Rural
Bank of Lucena, Inc., GR No. L-29791, 10 January 1978, 81
SCRA 75, 84-85
It is important to determine whether an action is
real or personal in order to determine venue.
6. Action in Personam vs. Action in Rem
A proceeding in personam is a proceeding to
enforce personal rights and obligations brought against the
person and is based on the jurisdiction of the person,
although it may involve his right to, or the exercise of
ownership of, specific property, or seek to compel him to
control or dispose of it in accordance with the mandate of
the court. The purpose of a proceeding in personam is to
impose, through the judgment of a court, some
responsibility or liability directly upon the person of the
defendant. Of this character are suits to compel a defendant
to specifically perform some act or actions to fasten a
pecuniary liability on him. An action in personam is said to
be one which has for its object a judgment against the
person, as distinguished from a judgment against the
propriety (sic) to determine its state. It has been held that
an action in personam is a proceeding to enforce personal
rights or obligations; such action is brought against the
person.
On the other hand, a proceeding in rem is one brought
against the whole world and there is not particular
defendant in order to adjudicate the right of the plaintiff
over a property. An example of which is an application for
registration, partition of inheritance, etc. The judgment in
an action in rem is binding against the whole world.
7. Obligations of an Owner (Arts. 431-432)
Art. 431. The owner of a thing cannot make use thereof in
such manner as to injure the rights of a third person.
No Injury to Rights of Third Persons
This is one of the fundamental bases of
police power, and constitutes a just restriction on
the right of ownership.
Art. 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.
State of Necessity
This Article refers to a state of necessity as
distinguished from the principle of self-help
enunciated in Art. 429.
Rule Under Criminal Law
Under the Revised Penal Code, the state of
necessity is considered a justifying circumstance.
Any person who, in order to avoid an evil or
injury, does an act which causes damage to another does not
incur criminal liability provided that the following
requisites are present:
(a) That the evil sought to be avoided
actually exists;
(b) That the injury feared be greater than
that done to avoid it;
(c) That there be no other practical and
less harmful means of preventing it. (Art. 11, par. 4,
Rev. Penal Code).
7. Presumption of Ownership (Art. 433)

Art. 433. Actual possession under claim of ownership
raises a disputable presumption of ownership. The true
owner must resort to judicial process for the recovery of
the property.
i. Nature
The presumption is only disputable. Art.
433 applies to both immovable and movable
property.
ii. Requisites
Two requirements to raise a disputable
(rebuttable) presumption of ownership:
(a) actual possession; and
(b) claim of ownership.
Thus, a tenant, who admits his tenancy, cannot be
presumed to be the owner. Moreover, just because a person
works on a parcel of land does not necessarily mean that he
is the owner thereof, particularly if he has not expressed the
concept in which the land was being worked upon by him.
(Alano, et al. v. Ignacio, et al., L-16434, Feb. 28, 1962).
iii. Resort to Judicial Process
The true owner has to resort to judicial
process to recover his property, only if the
possessor does not want to surrender the property
to him, after proper request or demand has been
made. Judicial process must then be had to prevent
disturbances of the peace. (Supia v. Quintero, 59
Phil. 312).
9. Action to Recover
i. Requisites (Art. 434)
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 claim.
Requisites in an Action to Recover
(a) Property must be identified
(b) Reliance on title of the plaintiff (and
not on the weakness of defendant’s title or claim).
(This is because it is possible that neither the
plaintiff nor the defendant is the true owner of the
property in question.)
[NOTE: These requisites are based on the doctrines
enunciated by our Supreme Court in Del Valle v.
Meralco, 34 Phil. 963. These requisites in turn are
based on the proposition that the burden of proof
lies on the party who substantially asserts the
affirmative of an issue. For he who relies upon the
existence of a fact should be called upon to prove
that fact. (See Ramcar, Inc. v. Garcia, L-16997, Apr.
25, 1962)]
[NOTE: One who desires to recover land as owner from
another person upon the theory that the deeds held by the
other party are null and void, must first ask that such
alleged fraudulent deeds be set aside. He cannot have such
documents annulled in a subsidiary action. (Dacer v.
Muñoz, 12 Phil. 328)]
First Requisite: Identity of the Property
The boundaries of the land sought must be proved,
so that if a person fails to specify which portion of a parcel
of land is the portion he is supposed to have inherited, his
action to recover the property will necessarily fail. (Santiago
v. Santos, 48 Phil. 567). What is true in an ordinary action
to recover property is also true in the case of an application
for the registration of land under the Land Registration Act,
because the claimant must also prove in an unquestionable
manner, his ownership and identity of the property
claimed. (Oligan v. Mejia, 17 Phil. 494). In cases of doubt as
to the land’s identity, the lower court should require each
party to present plans prepared by some competent person.
(Baloloy v. Edu, 20 Phil. 360). The description should be so
definite that an officer of the court might go to the locality
where the land is situated and definitely locate it.
(Sambrano v. Arzaga and Longboy, 22 Phil. 130)
Second Requisite: Strength of Plaintiff’s Title
If the claims of both plaintiff and defendant are weak,
judgment must be for the defendant, for the latter, being in
possession, is presumed to be the owner, and cannot be
obliged to show or prove a better title. (Santos v. Espinosa,
26 Phil. 398).
ii. Evidence to Prove Ownership
Among the evidence which may be presented by
plaintiff to show ownership are the following:
(a) Torrens certificate. (Reyes v. Borbon,
50 Phil. 791)
(b) Titles granted by the Spanish
Government, like those effected by royal cedula
(Guido v. De Borja, 12 Phil. 718) and “titulo de
composicion.’’ (Escario v. Regis, 31 Phil. 618)
(c) Long and actual possession. (Nolan v.
Jalandoni, 23 Phil. 292)
(d) Occupation of a building for a long
time without paying rentals therefor. (Gatdula v.
Santos, 29 Phil. 1)
(e) Testimony of adverse and exclusive
possession of ownership corroborated by tax
declaration of properties, payment of taxes, and
deeds of mortgage (but not the mere fact of
working over the land without expressing the
concept in which the land was being worked).
(Consorcia Alano, et al. v. Carmen Ignacio, et al.,
L-16434, Feb. 28, 1962)
[NOTE: These pieces of evidence, though
admissible, do not necessarily mean that they are conclusive
proof of ownership. They may therefore still be defeated or
rebutted.]
[NOTE: It has been held that in the absence of
evidence of ownership, the mere fact that a map in the
city’s possession showed that the property involved was a
portion of a street does NOT prove dominium by the State.
(Acuña v. City of Manila, 9 Phil. 225).]
[NOTE: If land is registered under the Land
Registration Law in the name of “M.R. married to R.L.,” it is
evident that prima facie the land belongs to “M.R.” (the
wife), alone as her paraphernal property, for if it were
conjugal, the title should have been issued in the name of
both. The words “married to R.L.,” written after the name
of M.R., are merely descriptive of the civil status of M.R.,
the registered owner of the property covered by the title.
(Litam, et al. v. Espiritu, et al., L-7644-45, Nov. 27, 1956;
Florentina Mata de Stuart v. Hon. Nicasio Yatco, et al., L-
16467, Apr. 27, 1962)]
iii. Quantum of Proof
The general rule in civil cases is that the party
having the burden of proof must establish his case by a
“preponderance of evidence’’ by which is meant that the
evidence as a whole adduced by one side is superior to that
of the other.
Where there is an “equiponderance of evidence,’’
meaning that there is nothing in the evidence which shall
incline it to one side or the other, the court will find for the
defendant. Under this principle, the plaintiff must rely on
the strength of his evidence and not on the weakness of the
defendant’s claim. Even if the evidence of the plaintiff may
be stronger than that of the defendant, there is no
preponderance of evidence on his side if such evidence is
insufficient in itself to establish his cause of action. (Sapu-an
v. Court of Appeals, 214 SCRA 701 [1992])
10. Deprivation of Property by Competent Authority (Art.
435, 436)
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 with, the
courts shall protect and, in a proper case, restore the
owner in his possession.
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.
i. As an exercise of the power of Eminent Domain
a. Requisites
Essential Requisites of Eminent Domain
(a) Taking by competent authority
(b) Observance of due process of law
(c) Taking for public use
(d) Payment of just compensation. (See
Republic v. Juan, L-24740, July 30, 1979).
Competent Authority
(a) Authority as of right — the State.
(b) Authority by virtue of a grant —
persons or corporations offering public
services.
More specifically, the following are examples of
competent authority:
(a) National Government (thru the
President of the Philippines) (CA 20 as amended by
CA 260).
(b) City of Manila (thru the Municipal
Board with the Mayor’s approval) (Rep. Act 267).
(c) Provinces (thru the Provincial Board,
with the approval of the Executive Secretary of the
President) (See Sec. 2106[f], Revised Adm. Code).
(d) Municipalities (thru the municipal councils
with the approval of the Executive Secretary of the
President) (See Sec. 2245[b], Revised Adm. Code).
(e) Other public corporations (thru the
Board of Directors, provided there is prior
government approval) (See Act 1459, par. 86[1]).
(f) The Manila Railroad Co. (Act 1510, Sec.
1, par. 26, as amended by Act 2373; see also MRR v.
Hacienda Benito, 37 O.G. 1957).
[NOTE: The right to expropriate is not an inherent
power in a municipal corporation, and before it can
exercise the right, some law must exist conferring
the power upon it. If a law grants it, whether
wisely or not, it must be given effect, provided that
all other requirements of the law are complied
with (City of Manila v. Chinese Community, 40
Phil. 349).The validity of a statute directing the
expropriation of certain property is a judicial
question. (NARRA v. Francisco, L-14111, Oct. 24,
1960)]
Due Process of Law
Under the Constitution, no person may be
deprived of property without due process of law.
(Art. III, Sec. 1, 1987 Constitution). In connection
with expropriation, it has been held that there is
due process of law when there has been a
substantial compliance with the procedure laid
down under Rule 69 — Expropriation — of the
Rules of Court (now Rule 67). (See Visayan
Refining Co. v. Camus, 40 Phil. 550). In other
words, there must be proper expropriation
proceedings. (Santos v. Director of Lands, 22 Phil.
424). Such proceedings must include:
1) A notice to the owner of the property;
2) A full opportunity to present his side on
whether or not the purpose of the taking is public;
or whether or not the government reasonably
needs the property;
3) And such other procedural requisites as
may be prescribed under the law. (Black,
Constitutional Law; see also Secs. 1-14, Rule 67,
Rules of Court)
[NOTE: The mere notice of the intention
of the state to expropriate the land in the future
cannot prevent the landowner from alienating the
property, for after all, the condemnation
proceedings may not even be instituted. Moreover,
even while proceedings have already begun, it is
possible that a sale to a person willing to assume
the risk of expropriation may be considered valid.
(Rep. v. Baylosis, 61 O.G. 722).]
Strict construction: Whenever an entity is
granted the right to expropriate, the grant must be
strictly construed, and when the right is sought to
expropriate private property that is not really
needed, the right should be denied. (See Manila
Railroad Co. v. Hacienda Benito, 37 O.G. 1957)
Estoppel: It is true that before there can be
expropriation, there must first be instituted proper
proceedings in court. Therefore, an entity can be
held liable for damages for unlawful trespass if the
proper procedure has not been first resorted to.
(See City of Manila v. Chinese Community, 40
Phil. 349). But the ruling will not apply if the
owner of the property is guilty of estoppel, i.e., if
he allowed the entity to make use of the land, and
incur expenses thereon without making any
objection to the unauthorized taking. In such a
case, he cannot complain against the expropriation,
although of course, he would still be entitled to just
compensation for the land, inasmuch as he can no
longer recover the same. (See Manila Railroad Co.
v. Paredes, 32 Phil. 534). Moreover, he will have to
be paid not only for the part of the land actually
taken, but also for the remaining portions, if by
virtue of the improvements introduced thereon by
the entity, the remaining land has become useless
for him. (See Tenorio v. Manila Railroad Co., 22
Phil. 411)
Abandonment of proceedings: When in
the course of the expropriation proceedings it is
realized that there is no more need for the property
sought, it is permissible to abandon the
proceedings, but the landowner must be
indemnified for all losses or prejudice caused him,
in case the land had been in the meantime
possessed by the plaintiff. (City of Manila v.
Ruyman, 37 Phil. 421)
Public Use
The question as to whether or not any
specific or particular use is a public one is
ultimately a judicial question. Of course, if
Congress has specifically allowed expropriation of
realty for a designated or specified public purpose,
the courts of justice are not allowed to inquire into
the necessity of such purpose. If, however, the
grant has been merely a general one, that is,
authority to expropriate land for public use, courts
have jurisdiction to decide whether the taking is
indeed for a public use. In such case, the issue is a
question of fact, and the Court should inquire into
and hear proof upon the question.
Just Compensation
In eminent domain proceedings, just
compensation means a fair and full equivalent
value of the loss sustained. (MRR v. Velasquez, 32
Phil. 286). Indeed, it must be “just” not only to the
individual whose property is taken, but also to the
public which is to pay for it. (Rep. v. Lara, 50 O.G.
5778). More specifically, it is the market value (the
price that the property will bring when it is offered
for sale by one who desires, but is not obliged to
sell it, and is bought by one who is under no
necessity of having it) PLUS the consequential
damages, if any, MINUS the consequential benefits,
if any. (City of Manila v. Corrales, 32 Phil. 85;
MRR v. Velasquez, supra)
However, the incidental or consequential benefits may be
set off only against the consequential damages, and not
against the basic value of the property taken. Otherwise,
there is a possibility that the property may be taken without
any compensation at all, when it is alleged for instance that
the consequential benefits are equal to or greater than the
consequential damages and basic value combined. Thus, the
law expressly provides that “in no case shall the
consequential benefits assessed exceed the consequential
damages assessed, or the owner be deprived of the actual
value of his property so taken.” (Sec. 6, Rule 67, Rules of
Court)
ii. As an exercise of Police Power
Art. 436 is based on police power, which
in turn is based on the maxim that “the welfare of
the people is the supreme law of the land.’’
Unlike eminent domain which requires
the giving of just compensation, police power
needs no giving of a financial return before it can
be exercised. This is therefore one instance when
property may be seized or condemned by the
government without any financial compensation.
Police power can refer not merely to
condemnation and seizure, but also to total
destruction itself, provided that (a) the public
interest is served and (b) the means used are not
unduly harsh, abusive, or oppressive. (See U.S. v.
Toribio, 15 Phil. 85). Thus, nuisances can be
abated; and rotting canned goods may be
destroyed. If the condemnation, seizure, or
destruction is unjustified, the owner is entitled to
compensation. (See Art. 436).
A State, in the exercise of police power,
may abate nuisances, whether public or private,
whether per se or per accidens. (See Homeowners’
Association of El Deposito v. Lood, L-31864, Sep.
29, 1972)
[NOTE:
(a) Public nuisance — that which affects a
community or a considerable number of persons.
(Art. 695)
(b) Private nuisance — that which is not
public. (Art. 695)
(c) Nuisance per se — that which is a
nuisance under all circumstances
(d) Nuisance per accidens — that which is
a nuisance only under certain circumstances, like a
factory, situated in a residential district]
11. Hidden Treasure (Art. 438, 439)
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 or 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.
NOTES:
For the finder to be entitled to one-half,
the discovery on another’s property must be “by
chance.” This means according to Spanish
commentators that there must be no purpose or
intent to look for the treasure. (2 Navarro Amandi
71). Dean Francisco Capistrano and Dean Vicente
Francisco are however, of the opinion that the
phrase “by chance” was intended by the Code
Commission to mean “by good luck,” implying that
one who intentionally looks for the treasure is
embraced in the provision. If, however, discovery
is on another’s property, permission must be
sought, otherwise the finder will be considered a
trespasser. It would have avoided confusion had
the Code Commission therefor used the phrase “by
good luck.” The author is of the opinion that “by
chance” really means “by good luck,” whether
there was a deliberate search for the treasure or not
but there was no prior agreement on how the
treasure, if found, would be divided. The reason is
evident: it is extremely difficult to find hidden
treasure without looking for it deliberately, for in
many instances, the treasure is buried, that is,
“hidden,” sometimes many feet under the ground.
A treasure hunt is an express search for hidden treasure. An
owner of land may for example contract with a group of
men who would look for the treasure. Should discovery be
made, the actual finders will not necessarily be entitled to
half. Instead, they will be given what has been stipulated in
the contract.
Requisites in the Definition of Hidden Treasure
(a) Hidden and unknown deposit (such that finding
it would indeed be a discovery)
(b) Consists of money, jewelry or other precious
objects
(c) Their lawful ownership does not appear
RIGHT OF ACCESSION (ART. 440)
Art. 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.
1. General Provisions
i. Definition
Accession is the right of a property owner
to everything which is:
(a) Produced thereby (accession discreta);
(b) Or which is incorporated or attached
thereto
ii. Accession vs. Accessory
The term “accession’’ is also used and
defined with reference to the thing over which the
right is exercised as distinguished from accessory as
follows:
(1) Accession are the fruits of, or additions
to, or improvements upon, a thing (the principal).
On the other hand, accessories are things joined to,
or included with, the principal thing for the latter’s
embellishment, better use, or completion (e.g., key
of a house; frame of a picture; bracelet of a watch;
machinery in a factory; bow of a violin).
(2) While accessions are not necessary to
the principal thing, the accessory and the principal
thing must go together.
iii. Nature
In Book III of the Civil Code, which deals
with “different modes of acquiring ownership,’’ the
different modes are enumerated, namely:
(a) Occupation
(b) Intellectual creation
(c) Law
(d) Donation
(e) Succession
(f) Tradition, as a consequence of certain
contracts
(g) Prescription
It will be noted that accession is not one of
those listed therein. It is therefore safe to conclude
 that accession is not a mode of acquiring
ownership. The reason is simple: accession
presupposes a previously existing ownership by the
owner over the principal. This is not necessarily so
in the other modes of acquiring ownership.
Therefore, fundamentally and in the last analysis,
accession is a right implicitly included in
ownership, without which it will have no basis or
existence. Truly, it is one of the attributes or
characteristics which will make up the concept of
dominion or ownership. (Manresa, 6th Ed., Vol. 3,
p. 116; 180-182). We can of course refer to
acquisition by accession as acquisition by LAW (for
the law itself gives the right).
iv. Kinds of Accession
There are two kinds of accession.
(1) Accession discreta is the extension of
the right of ownership of a person to the
products of a thing which belongs to such
person. It is based on the principle of
justice for it is just that the owner of a
thing should also own its fruits (discreta).
Under the Civil Code, it takes place with
respect to: (a) natural fruits; (b) industrial
fruits; and (c) civil fruits. (Art. 441.)
(2) Accession continua is the extension of
the right of ownership of a person to that
which is incorporated or attached to a
thing which belongs to such person. It is
based on convenience and necessity for it
is more practical that the owner of the
principal should also own the accessory
(continua) instead of establishing a co-
ownership. Under the Civil Code, this
kind of accession may take place.
(a) With respect to real property.
— It may be either:
1) Accession industrial
(building, planting or sowing; or
2) Accession natural
(alluvion, avulsion, change of
river course, and formation of
islands); and
(b) With respect to personal
property. — It may be:
1) Conjunction or
adjunction (which may take place
by inclusion or engraftment,
soldadura or attachment, tejido or
weaving, pintura or painting, and
escritura or writing);
2) Mixture or
Commixtion or confusion; or
3) Specification. (infra.)
v. Right of Owner to the Fruits (Arts. 441-442, 444)
Art. 441. To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The civil fruits. (354)
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. (355a)
Art. 444. Only such as are 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. (357)
NOTES:
There are exceptions to the rule in Article 441. In the
following cases, a person, other than the owner of a
property, owns the fruits thereof:
(a) Possession in good faith by another, in
which case, the possessor in good faith is entitled to
the fruits received before the possession is legally
interrupted (Art. 546.);
(b) Usufruct, in which case the
usufructuary is entitled to all the fruits of the
property on usufruct (Art. 566.);
(c) Lease of rural lands, in which case the
lessee is likewise entitled to the fruits of the land
(Art. 1680.) with the owner, of course, getting the
civil fruits in the form of rents paid by the lessee
(Art. 1654.);
(d) Pledge, in which case, the pledgee is
entitled to receive the fruits, income, dividends, or
interests which the pledge earns or produces but
with the obligation to compensate or set-off what
he receives with those which are owing him (Art.
2102, par. 7.); and
(e) Antichresis, in which case the creditor
acquires the right to receive the fruits of an
immovable of his debtor, but with the obligation to
apply them, first, to the interest if owing, and then
to the principal amount of the credit. (Art. 2132.)
The following illustrations have been given to serve as
guide in determining the existence of natural and industrial
fruits:
(1) With respect to plants which produce
only one crop and then perish (e.g., rice, corn,
sugar), they should be deemed manifest or existing
from the time the seedlings appear from the
ground;
(2) As to plants and trees which live for
years and give periodic fruits (e.g., mangoes,
coconuts, oranges), the fruits are not deemed
existing until they actually appear on the plants or
trees;
(3) As regards animals, they are deemed
existing at the beginning of the maximum ordinary
period of gestation (when there can be no doubt
that they are already in the womb of the mother),
this being the surest criterion of their existence in
the mother’s womb; and
(4) With respect to fowls, by analogy, the
fact of appearance of the chicks should retroact to
the beginning of incubation. (3 Manresa 190-191.)
While products of the soil are considered natural or
industrial fruits only if manifest or visible, the
 young of animals are considered natural fruits only
if existing in the womb of the mother, though
unborn. Thus, the second paragraph of Article 444
is an exception or qualification to the first
paragraph thereof.
To whom does the offspring of animals belong
when the male and female belong to different owners?
ANS.: This point is not covered either by the old or the new
Civil Code. However, under the Partidas, the owner of the
female was considered also the owner of the young, unless
there is a contrary custom or speculation. This maxim is
based on two good reasons:
(a) First, oftentimes, it is not known who
the male is
(b) Second, during the pregnancy of the
female, its owner is greatly burdened by the
consequential expenses and virtual uselessness of
the animal, and it is only fair that when the young
is born, the owner should gain, or at least recover
his loss. (See Blackstone Comm. 390)
a. Kinds of Fruits
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. (355a)
NOTES:
There are two kinds of natural fruits:
(a) The spontaneous products of the soil
(that is, human labor does not intervene). Examples
— herbs, common grass (See 3 Manresa 182).
(b) The young and other products of
animals. (See Art. 442, par. 1). Examples — chicks
and chicken eggs
Whether brought about by scientific means or not,
it would seem that the young of animals should be
considered as “natural” fruits, since the law makes no
distinction.
The distinction between natural fruits and
industrial fruits is not always easily determined for it is
sometimes difficult to ascertain that part of the product
which corresponds to the forces of nature and that part
which corresponds to the industry of man. (3 Manresa 182)
Thus:
(1) Grass, as the zacate for horse, is
ordinarily a natural fruit but is considered an
industrial fruit when it is cultivated as food for
horses.
(2) Wild mushrooms are natural fruits but
cultivated mushrooms are industrial fruits.
(3) Standing trees are not fruits although
they produce fruits themselves but they may be
considered as industrial fruits when they are
cultivated or exploited to carry on an industry. (3
Manresa 183)
vi. Obligation of Recipient of Fruits (Art. 443)
Art. 443. He who receives the fruits has the obligation to
pay the expenses made by a third person in their
production, gathering, and preservation. (356)
Examples:
A is the owner of a piece of land upon which fruits
were grown, raised, harvested, and gathered by B in bad
faith. Who should be considered the owner of the fruits?
ANS.: A should be considered the owner of the fruits, since
he is the owner of the land, and B is a planter in bad faith
but he must reimburse B for the expenses for production,
gathering, and preservation. The reason for reimbursing B
even though he is in bad faith, is that were it not for the
said necessary cultivation expenses, there would not be any
fruits grown at all, or left or preserved. Thus, this article is
merely in consonance with the principle that no one may
enrich himself unjustly at another’s expense. (3 Manresa,
pp. 181-183)
Art. 443 does not apply when the planter is in good
faith, because in this case, he is entitled to the fruits already
received, hence, there is no necessity of reimbursing him.
(See Art. 544).
Characteristic of the Expenses Referred to in Art. 44:
(a) They must have been used for
production, gathering, or preservation, not for the
improvement of the property.
(b) They must have been necessary, and
not luxurious or excessive. Indeed, they must be
commensurate with those ordinarily necessitated
by the product. (See 3 Manresa 187-188)
Suppose the expenses exceed the value of the fruits
(as when, for example, typhoons have damaged the crops)
must there still be a reimbursement for the expenses? ANS.:
Yes, if the owner insists on being entitled to the fruits. This
is because:
(a) The law makes no exception or
distinction;
(b) The same thing would have happened
had the owner been also the planter;
(c) He who gets expected advantages must
be prepared to shoulder losses.
It is understood, of course, that if the fruits had not
yet been gathered, no indemnity is required. (See 3 Manresa
187- 188; Art. 449)
2. Right of Accesion with Respect to Immovable Property
i. General Rule (Art. 445 and 446)
Art. 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 of
the following articles.
Art. 446. All works, sowing, and planting are presumed
made by the owner and at his expense, unless the contrary
is proved.
ii. Basic Principles
 Basic Principles of Accession Continua
(Accession Industrial)
(a) To the owner of the principal (the land
for example) must belong also the accessions, in
accordance with the principle that “the accessory
follows the principal’’ (“accesio cedit principali’’).
(b) The union or incorporation must, with
certain exceptions, be effected in such a manner
that to separate the principal from the accessory
would result in substantial injury to either.
(c) He who is in good faith may be held
responsible but he should not be penalized.
(d) He who is in bad faith may be
penalized.
(e) No one should enrich himself unjustly
at the expense of another.
(f) Bad faith of one party neutralizes the
bad faith of the other so both should be considered
in good faith.
iii. Applicability of Art. 445 and 446
Art. 445 and 446 can, of course, be applied
only if the owner of the land is known. If he be
unknown, no decision on the ownership of the
things planted, built or sown, can be made.
iv. Rule where owner of land uses materials of
another to build on his land (Ar. 447)
Art. 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.
Rights and Obligations of the Owner of the Land
Who Uses the Materials of Another
(a) If the landowner acted in good faith —
He becomes the owner of the materials but he must
pay for their value. The only exception is when
they can be removed without destruction to the
work made or to the plants. In such a case, the
owner of the materials can remove them.
(b) If the landowner is in bad faith — He
becomes the owner of the materials but he must
pay: (1) Their value (2) and damages. The exception
is when the owner of the materials decides to
remove them whether or not destruction would be
caused. (In this case, the materials would still
belong to the owner of said materials, who in
addition will still be entitled to damages).
Rights and Obligations of the Owner of the
Materials
(a) If the landowner acted in good faith —
(1) The owner of the materials is entitled to
reimbursement (provided he does not remove
them) or (2) he is entitled to removal (provided no
substantial injury is caused).
(b) If the landowner acted in bad faith —
(1) The owner of the materials is entitled to the
ABSOLUTE right of removal and damages
(whether or not substantial injury is caused) or (2)
he is entitled to reimbursement and damages (in
case he chooses not to remove).
If the owner of the materials is in bad faith
while the landowner is in good faith, then the
landowner can acquire such materials but with
payment to the owner of the materials. The
landowner also has the option to return the
materials to the owner of the materials provided
that they are in its original condition. Landowner
can also recover damages in either case.
Regarding Art. 447, what rule should
apply if the landowner and the owner of the
materials are both in bad faith? ANS.: Consider
them in good faith. Good faith is always presumed,
and upon him who alleges bad faith rests the
burden of proof. (See Art. 527).
Although Art. 447 does not define good
faith or bad faith, we may, by analogy, apply the
definitions provided for in Arts. 453 and 526.
Hence:
(a) The builder, planter or sower is in BAD
faith if he makes use of the land or materials
which he knows belong to another.
(b) He is in GOOD faith if he did not
know that he had no right to such land or
materials.
(c) The owner of the materials is in BAD
faith if he allows another to use the materials
without informing him of the ownership thereof.
(d) 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 thereof and
made the necessary prohibition.
v. Rule where builder/sower/planter
builds/sows/plants on a land not belonging to him
a. Builder/Sower/Planter in Good Faith (Art. 448)
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 articles 546 and 548, or
to oblige the one who built or planted to pay the
price of the land, and the 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 proper
indemnity. The parties shall agree upon the terms
 of the lease and in case of disagreement, the court
shall fix the terms thereof.
i. Good Faith
Good faith under Article 448 consists in
the honest belief of the builder, sower, or planter,
that the land he is building, sowing, or planting on,
is his or that by some title he has a right to build,
etc. thereon, and his ignorance of any defect or
flaw in his title. (see Pleasantville Dev. Corp. v.
Court of Appeals, 67 SCAD 594, 253 SCRA 10
[1996]; Orquiola v. Court of Appeals, 386 SCRA
301 [2002]; Rosales v. Castellort, 472 SCRA 144
[2005].) It implies honesty of intention, and
freedom from knowledge of circumstances which
ought to put the builder, etc. upon inquiry. (see
Philippine National Bank v. De Jesus, 411 SCRA
557 [2003].)
Rosales v.
Castelltort, 2005
The records indicate that at the time Castelltort began
constructing his house on petitioners’ lot, he believed that it
was the Lot 16 he bought and delivered to him by Villegas.
He is deemed a builder on good faith for he honestly
thought that what they purchased was Lot 16 but it turned
out that it was really Lot 17. Thus, petitioner cannot ask for
the demolition of his house.
JM
Tuazon Inc. v. Vda. de Lumanlan, 1968
As to Lumanlan's allegation in her counterclaim that she
should be deemed a builder in good faith, a similar
contention has been rejected in Tuason & Co. vs.
Macalindong, L-15398, December 29, 1962, where we ruled
that there being a presumptive knowledge of the Torrens
titles issued to Tuason & Co. and its predecessors-in-interest
since 1914, the buyer from the Deudors (or from their
transferees) cannot, in good conscience, say now that she
believed her vendor had rights of ownership over the lot
purchased. The reason given by the Court is that —
Had he investigated before buying and before
building his house on the questioned lot, he would
have been informed that the land is registered
under the Torrens system in the name of J. M.
Tuason & Co., Inc., If he failed to make the
necessary inquiry, appellant is now bound
conclusively by appellee's Torrens title (Sec. 51,
Act 496; Emas vs. Zuzuarregui, 35 Phil. 144)
(Tuason & Co., Inc. vs. Macalindong, ante).
Lumanlan had chosen to ignore the Torrens title of Tuason
& Co., Inc. and relied instead upon the Deudors' claim of
ownership, perhaps because such course appeared to her as
more advantageous; hence, she has only herself to blame for
the consequences now that the Deudors' claim has been
abandoned by the Deudors themselves, and cannot pretend
good faith. The Court of First Instance, therefore, did not
err in holding that she was not a rightful possessor and
sentencing her to vacate.
Quevada v. CA, 2006
The above-cited article "covers only cases in which the
builders, sowers[,] or planters believe themselves to be
owners of the land or, at least, to have a claim of title
thereto. It does not apply when the interest is x x x that of x
x x a mere tenant x x x." However, it is also applied to cases
where a builder has "constructed improvements with the
consent of the owner."
Petitioner is not the owner of or claiming title to the land,
but a mere tenant occupying only a portion of the house on
it under the lease contract between him and private
respondent. No supporting evidence was presented showing
that petitioner's construction of the house was with the
consent of the land's previous owner, but good faith should
be presumed, particularly since the lease relationship was
open and in plain view.
Macasaet v. Macasaet, 2004
Article 448 applies to the present factual milieu. The
established facts of this case show that respondents fully
consented to the improvements introduced by petitioners.
In fact, because the children occupied the lots upon their
invitation, the parents certainly knew and approved of the
construction of the improvements introduced thereon.
Thus, petitioners may be deemed to have been in good faith
when they built the structures on those lots.
Mores v.
Yu-Go, 2010
Article 1678 of the Civil Code should apply in the present
case. Article 1678 reads:
If the lessee makes, in good faith, useful
improvements which are suitable to the use for
which the lease is intended, without altering the
form or substance of the property leased, the lessor
upon the termination of the lease shall pay the
lessee one-half of the value of the improvements at
that time. Should the lessor refuse to reimburse
said amount, the lessee may remove the
improvements, even though the principal thing
may suffer damage thereby. He shall not, however,
cause any more impairment upon the property
leased than is necessary
The above provision does not apply when the lessor
consented to the making of improvements by the lessee. In
such a case, Art. 448 governs.
Del
Campo v. Abesia, 1988
The co-ownership is terminated by the partition and it
appears that the house of defendants overlaps or occupies a
portion of 5 square meters of the land pertaining to
plaintiffs which the defendants obviously built in good
faith, then the provisions of Article 448 of the new Civil
Code should apply.
 Boyer-
Roxas v. CA, 1992
The construction of the unfinished building started when
Eriberto Roxas, husband of Rebecca Boyer-Roxas, was still
alive and was the general manager of the respondent
corporation. The couple used their own funds to finance the
construction of the building. The Board of Directors of the
corporation, however, did not object to the construction.
They allowed the construction to continue despite the fact
that it was within the property of the corporation. Under
these circumstances, we agree with the petitioners that the
provision of Article 453 of the Civil Code should have been
applied by the lower courts.
Sarmiento v. Agana, 1984
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 articles 546 and 548,
XXX
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. 548. Expenses for pure luxury or mere

Petitioners are builders in good faith for they thought that pleasure shall not be refunded to the possessor in
the land was owned by their mother who allowed them to good faith; but he may remove the ornaments
construct their house thereon with the intention of with which he has embellished the principal thing
donating to them the land in the future if it suffers no injury thereby, and if his successor
in the possession does not prefer to refund the
amount expended.
Respondent cannot just ask Petitoner to vacate her land.
Under Article 448 of the Civil Code, SARMIENTO was
NOTES: In case the owner chooses to appropriate
required, within 60 days, to exercise the option to
the thing built, or sown, or planted, how much indemnity
reimburse ERNESTO and wife the sum of 40,000.00 as the
should be paid by him? ANS.: The indemnity provided for
value of the RESIDENTIAL HOUSE, or the option to allow
in Arts. 546 and 548 of the new Civil Code. (Mendoza and
them to purchase the LAND for P25,000
Enriquez v. De Guzman, 52 Phil. 1641). Please note,
however, that ownership over the thing built or sown or
Respondent cannot refuse both to pay for the building and
planted does not pass to the landowner till after payment
to sell the land and compel the owner of the building to
therefor has been given. (TS, Jan. 2, 1928). Payment is to be
remove it from the land where it is erected. She is entitled
made either on the date fixed by agreement or the date
to such demolition only when, after having chosen to sell
fixed by the Court. (Bataclan v. CFI, 61 Phil. 428).
his land, the other party fails to pay for the same.

[NOTE: After the owner of the land has given to

ii. Options Given to Landowner
the builder or possessor in good faith the proper
indemnities, the builder or possessor may be ordered to
(1) Option alternative. — The landowner can
VACATE the land. (People v. Repato, L-17985, Sep. 29,
exercise a remedy of his own liking. He is given an
1962)]
option, either:
(a) To appropriate the improvement upon
The Indemnities to be Given
payment of the required indemnity (Arts.
(a) Necessary Expenses. (Art. 546, par. 1).
546, 548.); or
(b) Useful Expenses. (Art. 546, par. 2).
(b) To oblige the builder or planter to pay
(c) Luxurious Expenses — if he desires to
the price of the land (unless its value is
appropriate them for himself. (Art. 548)
considerably more than that of the
building or trees), and the sower, to pay
[NOTE: Necessary expenses are those made for the
the proper rent.
preservation of the thing (4 Manresa 270) or those without
which the thing would deteriorate or be lost (8 Scaevola
(2) Communication of choice. — The choice of the
408) such as those incurred for cultivation, production, and
owner shall produce effect from the time it has
upkeep. (Mendoza v. De Guzman, 52 Phil. 164). Necessary
been communicated to the other party. (see Art.
expenses include necessary repairs (Alburo v. Villanueva, 7
1202; Tayag v. Yuseco, 105 Phil. 484 [1959].) Once
Phil. 277). By ordinary repairs are understood such as are
properly made, it cannot be changed by the former
required by the wear and tear due to the natural use of the
without the consent of the latter. From the
thing, and are indispensable for its preservation. (Art. 529,
moment off such communication, the builder
Civil Code).
becomes in bad faith.

Upon the other hand, useful expenses are those

1. Options
that augment the income of the thing upon which they are
spent (4 Manresa 274), or add value to the property (Aringo
a. To appropriate improvement upon payment of the
v. Arena, 14 Phil. 263) but do not include the value of
required indemnity (Art. 546, 548, 448)
farming implements or work animals which do not remain
on the land. (Valenzuela v. Lopez, 51 Phil. 279).].
Problem Art. 448. The owner of the land on which anything has
A builder constructed in good faith a house on the been built, sown or planted in good faith, shall have the
land of X. X elected to appropriate the house and right to XXX, or to oblige the one who built or planted to
pay the price of the land, and the one who sowed, the
bound himself to pay the proper indemnities.
proper rent. However, the builder or planter cannot be
Before the indemnities are given — obliged to buy the land if its value is considerably more
(a) May the builder retain the house? than that of the building or trees. In such case, he shall pay
(b) Is the builder entitled to the rents that reasonable rent, if the owner of the land does not choose to
accrue in the meantime (in case the appropriate the building or trees after proper indemnity.
building is leased to another)? The parties shall agree upon the terms of the lease and in
(c) Is the builder entitled to the fruits that case of disagreement, the court shall fix the terms thereof.
will accrue during the time he retains the
Art. 448. XXX However, the builder or planter cannot be
premises? obliged to buy the land if its value is considerably more
(d) Is the owner of the land entitled to than that of the building or trees. In such case, he shall pay
collect rent from the builder while the reasonable rent, if the owner of the land does not choose to
latter retains the house? appropriate the building or trees after proper indemnity.
ANS.: The parties shall agree upon the terms of the lease and in
(a) Yes, the builder is entitled to retain the case of disagreement, the court shall fix the terms thereof.
house until he is paid the full indemnities since he
NOTE: The determination on whether the value of
is a builder in good faith. (See Art. 546; see also
the land is considerably more than that of the building is
Grana and Torralba v. Court of Appeals, et al., L-
with the courts.
12486, Aug. 3, 1960) Incidentally, this right of
retention may be recorded on the certificate of
The builder who buys the land must pay rent, for
title, and thus constitute a lien on the property.
he is already in bad faith, to the landowner pending the full
(See Atkins, Kroll and Co. v. Domingo, 46 Phil.
payment of the land. Otherwise, he cannot retain possession
362).
over the building.
(b) No, the builder is not entitled to the
rents, since his possession is no longer that of a
In the event that the landowner elects to sell the
possessor in good faith. Note that election by the
subject land to the builder who agrees to buy the same, the
landowner had already been made. Therefore, if
price must be fixed at the prevailing market value at the
the builder receives the rents, he must deduct them
time of payment, not at the time of taking which is the time
from whatever indemnity is due him. (See
the improvements were even built on the land.
Mendoza v. De Guzman, 52 Phil. 164).
(c) No, for again we may say that during
Suppose the landowner rightfully exercised his
said retention, he is not considered a possessor in
option to require the builder or planter to pay the value of
good faith. (Ibid)
the land, but the builder or planter refuses or fails to pay,
(d) No, otherwise the right of retention till
what remedies are available to the parties?
indemnity is given would be rendered nugatory.
(1) They may assume the relation of lessor-lessee,
[Tufexis v. Chunaco, (CA) 36 O.G., p. 2455; Grana
and should there be disagreement on the terms of
and Torralba v. Court of Appeals, et al., L-12486,
the lease, the courts could fix them (Miranda v.
Aug. 31, 1960; Miranda v. Fadullon, et al., 51 O.G.
Fadullon, 97 Phil. 801 [1955].); or they may sell the
6226]
property at public action and apply the proceeds of
the sale, first, to the value of the land and the
Once the landowner elects to appropriate
excess to the improvements. (Bernardo v. Bataclan,
the improvements, the builder, etc. cannot exactly
66 Phil. 598 [1938])
be considered a possessor in good faith. Hence,
(2) Should no other arrangement be agreed upon,
whatever fruits (rents) he receives during the
the owner of the land does not automatically
period of retention must be deducted from
become the owner of the improvement. (see
whatever indemnity is due to him; and in case it
Filipinas Colleges, Inc. v. Timbang, 106 Phil. 247
exceeds the value of the indemnity, the excess shall
[1959].) An action by the landowner for
be returned to the owner of the land. (Mendoza v.
performance to buy the land is not available for a
de Guzman, 52 Phil. 164 [1928])
person cannot be compelled to enter into a contract
without his consent or against his will (see Arts.
The above is true if the improvements
1305, 1318[2].); nor for the same reason, may the
(e.g., building) are leased to another by the builder,
court impose upon the parties a “forced lease.’’
etc. But if the building is occupied by the builder
himself who acted in good faith, the landowner has
The landowner’s remedy is an ordinary action for
no right to collect rents for the occupation of the
the recovery of the price of the land or to have the
land while the latter retains the building. (Tufexis
improvements removed at the builder’s expense. (Ignacio v.
v. Chunaco, supra)
Hilario, supra; Depra v. Dumlao, supra; see Bernardo v.
Bataclan, supra.)
b. To oblige the builder of planter to pay
the price of the land and the sower, to pay the
c. Reason for the Option
proper rent

It is the owner of the land who is allowed

to exercise the option because:
 (a) His right is older;
(b) And because, by the principle
of accession, he is entitled to the
ownership of the accessory thing. (3
Manresa, p. 213, cited in the case of
Bernardo v. Bataclan, supra). In view of
this, it is clear that the builder does not
have the option. (Acuña v. Furukawa
Plantation, 49 O.G. 5382). However, the
lien of the builder on the constructions
may be annotated in the certificate of title
by means of a petition filed in the original
case wherein the decree of registration
under the Torrens system was entered.
This is to protect the right of the builder to
the indemnity, in case the property is sold
to a purchaser for value. (Atkins, Kroll and
Co. v. Domingo, 46 Phil. 362).
Ochoa v. Apeta, 2007
We are convinced that petitioners and
their predecessors-in-interest were in good faith
when they built their houses and apartment
building on Lot No. 1580 since they were
convinced it was covered by their TCT No. T-
40624.
Under Art. 448 of the Civil Code, the landowner can make a
choice - either by appropriating the building by paying the
proper indemnity or obliging the builder to pay the price of
the land. The choice belongs to the owner of the land, a
rule that accords with the principle of accession that the
accessory follows the principal and not the other way
around. He must choose only one.
iii. Right of Landowner to Remove or Demolish
Improvement
Since the option is given to the landowner
and it is limited to paying for the improvement or
selling his land to the builder, etc., he cannot
refuse to exercise his right of choice and compel
the builder to remove or demolish the
improvement. An order by a court compelling a
builder in good faith to remove his building from a
land belonging to another who chooses neither to
pay for such building nor sell the land is null and
void for being offensive to Article 448. (Sarmiento
v. Agana, 129 SCRA 122 [1984]; Rosales v.
Castelltort, 472 SCRA 144 [2005])
Since the choice given the landowner is
confined to either an appropriation of the house or
to a compulsory selling of the land, he has no right
of removal or demolition, UNLESS after having
selected a compulsory sale, the builder fails to pay
for the land. (Ignacio v. Hilario, 43 O.G. 140, 76
Phil. 605). The reason for the Ignacio case is clear.
If the builder cannot pay for the land, he should
not be allowed to continue using it to the owner’s
detriment. Hence this time, the builder must
remove the construction.
Depra v.
Dumlao
DEPRA has the option either to pay for
the encroaching part of DUMLAO's kitchen, or to
sell the encroached 34 square meters of his lot to
DUMLAO. He cannot refuse to pay for the
encroaching part of the building or to sell the
encroached part of his land. He is entitled to such
removal only when, after having chosen to sell his
encroached land, DUMLAO fails to pay for the
same
iv. Builder’s/Sower’s/Planter’s Right to Retain Improvement
Until the indemnity which includes necessary and
useful expenses (Art. 546.) has been paid in full by the
landowner who has elected to appropriate the
improvements, the builder, etc., may retain both the land
and the improvements even against the real owner.
(Mercado v. Court of Appeals, 162 SCRA 75 [1988];
Martinez v. Baganus, 28 Phil. 500 [1914])
The right of retention is considered as one of the
measures devised by the law for the protection of builders
in good faith. Its object is to guarantee full and prompt
reimbursement as it permits the actual possessor to remain
in possession while he has not been reimbursed (by the
person who defeated him in the case for possession of the
property) for those necessary expenses and useful
improvements made by him on the thing possessed.
Accordingly, a builder in good faith cannot be compelled to
pay rentals during the period of retention nor be disturbed
in his possession by ordering him to vacate. (Nuguid v.
Court of Appeals, 452 SCRA 243 [2005])
Nuguid
v. CA, 2005
Accordingly, a builder in good faith
cannot be compelled to pay rentals during the
period of retention nor be disturbed in his
possession by ordering him to vacate. In addition,
as in this case, the owner of the land is prohibited
from offsetting or compensating the necessary and
useful expenses with the fruits received by the
builder-possessor in good faith. Otherwise, the
security provided by law would be impaired. This
is so because the right to the expenses and the right
to the fruits both pertain to the possessor, making
compensation juridically impossible; and one
cannot be used to reduce the other.
This is a wrong decision. The correct one
is this:
Once the landowner elects to appropriate the
improvements, the builder, etc. cannot exactly be
considered a possessor in good faith. Hence,
whatever fruits (rents) he receives during the
period of retention must be deducted from
whatever indemnity is due to him; and in case it
exceeds the value of the indemnity, the excess shall
be returned to the owner of the land. (Mendoza v.
de Guzman, 52 Phil. 164 [1928])
v. Effect of Alienation by Owner of Land with Improvements
(1) Where purchaser paid only price of land. — In
a case, a chapel was built on the land of another. The owner
of the land sold the same to a purchaser who paid only for
the value of the land but not for the chapel which he knew
had been constructed by another. Who should pay for the
value of the building? Ordinarily, the purchaser as the
owner of the land is entitled to all improvements existing
thereon. But he should pay for the value of the chapel
because the indemnity must be borne by the person
benefited by the accession. A purchaser, in accordance with
Article 453, who buys land with improvements belonging
to another knowing such fact, places himself in the position
of an owner of land who has acted in bad faith. (see Gongon
v. Tianco, [C.A.] 36 O.G. 822; 3 Manresa 211-212.)
(2) Where purchaser paid also value of
improvements. — If the new owner has paid for the
improvements, the action may still be brought against him
without prejudice to his right to recover from the former
owner. (Ibid.) It can be presumed that the purchase price of
the land includes the improvements.
(3) Option given to purchaser. — The owner of a
land by purchase where a house was constructed by a
builder in good faith is given the choice, if the former
owner had not exercised his option, either to pay for the
value of the house, or require the builder to pay for the
value of the land. (Martin v. Martin, 105 Phil. 750 [1959])
(4) Where land registered under the Torrens
system. — If the land is registered under the Torrens system
and the certificate of title shows the holder to be the owner
of the land and the improvements thereon, any purchaser
for value, without notice, who buys the land on reliance on
such title will take the property free from the builder’s lien.
(Atkins, Kroll & Co. v. Domingo, 46 Phil. 362 [1924])
b. Builder/Sower/Planter in Bad Faith (Art. 449-452)
Article 449. He who builds, plants or sows in bad faith on
the land of another, loses what is built, planted or sown
without right to indemnity. (362)
Article 450. The owner of the land on which anything has
been built, planted or sown in bad faith may demand the
demolition of the work, or 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 the builder or planter to pay
the price of the land, and the sower the proper rent. (363a)
Article 451. In the cases of the two preceding articles, the
landowner is entitled to damages from the builder, planter
or sower. (n)
Article 452. The builder, planter or sower in bad faith is
entitled to reimbursement for the necessary expenses of
preservation of the land. (n)
i. Instances of Bad Faith
Instances of bad faith. — There is bad
faith, for example, where one:
(a) Bought a house from another
with full knowledge of the fact that the
land belonged to the landlord of the seller
(De Guzman v. Rivera, 4 Phil. 420 [1905].);
or
(b) Simply took possession of a
land which its former possessors were
compelled to abandon by reason of war
(Roman Catholic Church v. Certain
Municipalities of Ilocos Sur, 10 Phil. 1
[1908].); or
(c) Bought a land with notice that
there was some defect in the title of the
vendor and could not have failed to know
that another had been holding the land
under a claim of ownership (Tagala v.
Ybeas, [C.A.] 49 O.G. 200.); or had
presumptive knowledge of the owner’s
Torrens title (Rodriguez, Sr. v. Francisco, 6
SCRA 917 [1962].); or
(d) Had been found by the trial
court to be a builder in bad faith and
ordered to deliver the improvements to
the owner which finding is presumed
correct until reversed by a higher court,
and, therefore, notwithstanding allegation
of good faith, is not entitled to retain
possession until reimbursed pending
appeal (De Leon v. Caluag, 21 SCRA 85
[1967].); or
(e) Bought a parcel of land and
then constructed a new building after the
filing of action against him for annulment
of the sale of the land (Mindanao
Academy, Inc. v. Yap, 13 SCRA 190
[1965].); or
(f) Bought a parcel of land with
the knowledge that the property was
under litigation and then planted about
3,000 coconut trees thereon (Lumungo v.
Usman, 25 SCRA 225[1968].); or
(g) Built a house on a lot after his
predecessor-in-interest, his parents, had
been summoned in civil case regarding
said lot, and even reconstructed the house
into a bigger one while the case was
pending. (Santos v. Mojica, 26 SCRA 703
[1969])
Rodriguez, Sr. v. Francisco, 1962
Defendant is a possessor in good faith. It was only
in 1951 when Defendant became a possessor in bad
faith for they were able to know the subsequent
sale and issuance of TCT to Plaintiff. Defendant is
not liable for damages.
The possession having begun in good faith the
presumption is that it continued to be enjoyed in
the same character until it could be proven that the
possessor was aware that his possession was
wrongful (Articles 528 and 529, Civil Code). It
appears that in spite of the consolidation of
ownership in appellant and the issuance of a
transfer certificate of title in his name in 1937, he
never attempted to exercise possessory rights over
the property or paid taxes thereon, nor did he
 demand its possession from appellee until the
complaint in this case was filed on January 20.
1949.
Mindanao Academy Inc. v. Yap, 1965
If the defendant constructed a new
building, as he alleges, he cannot recover its value
because the construction was done after the filing
of the action for annulment, thus rendering him a
builder in bad faith who is denied by law any right
of reimbursement.
Lumungo v. Usman, 1968
Respondent Jose Angeles is a nephew of
defendant Asaad Usman, and the controversy
between the latter and Datu Idiris was a matter of
public knowledge. Besides, on February 2, 1952, or
several months prior to the sale to Angeles on
September 30, 1952, Datu Idiris had filed Civil Case
No. 87 of the Court of First Instance of Sulu against
Asaad Usman to recover the lots in question, and
the latter stated in that case, on September 26,
1952, or four (4) days before the aforementioned
sale, that he was not interested in either the
possession or the ownership of said lots and that he
had not bought the same from the former.
The foregoing facts, and the above-quoted findings
of both the trial court and the Court of Appeals,
leave no room for doubt that Jose Angeles was a
purchaser and a builder in bad faith
Santos
v. Mojica, 1969
Leonardo Santos' house having been built and
reconstructed (after March, 1962) into a bigger one
after his predecessors-in-interest, his parents, had
been summoned in 1959 in Civil Case No. 217-R,
he must be deemed a builder in bad faith. As
builder in bad faith he lost the improvement made
by him consisting of the reconstructed house to the
owners of the land without right to indemnity.
ii. Consequence for Bad Faith (Art. 449 and 450)
Article 449. He who builds, plants or sows in bad faith on
the land of another, loses what is built, planted or sown
without right to indemnity. (362)
Article 450. The owner of the land on which anything has
been built, planted or sown in bad faith may demand the
demolition of the work, or 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 the builder or planter to pay
the price of the land, and the sower the proper rent. (363a)
iii. Rights of Builder/Planter/Sower in Bad Faith
(Art. 452)
Article 452. The builder, planter or sower in bad faith is
entitled to reimbursement for the necessary expenses of
preservation of the land. (n)
1. Examples of necessary expenses for
preservation of land
Examples of necessary expense of
preservation of the land are those for defense work
to prevent erosion of part of the land bordering a
river from being segregated and carried away by
the current of the waters; and those for litigation in
defense of the and against claims of usurpers. (I
Capistrano, op. cit., p. 417.) Irrigation expenses are
useful expenses but not necessary for the
preservation of the land. But real property taxes
may be considered necessary expenses under
Article 452 for their non-payment may result in
the public sale of the land for tax delinquency or its
forfeiture to the government.
2. Right of Retention (Art. 546) and Right
to expenses of production
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 retention, the person who has
defeated him in the possession having the option of
refunding the amount of the expenses or of paying the
increase in value which the thing may have acquired by
reason thereof. (453a)
Art. 443. He who receives the fruits has the obligation to
pay the expenses made by a third person in their
production, gathering, and preservation. (356)
NOTES: Necessary expenses shall be
refunded to every possessor, including one in bad
faith but only the possessor in good faith is entitled
to retain the thing until he is reimbursed. (Art.
546.)
In the same way that necessary expenses
for cultivation, gathering, and preservation must be
paid by him who receives the fruits regardless of
good or bad faith of the third person who incurred
said expenses (Art. 443.)
iv. Rights of Owner of the Land (Art. 450-451)
Article 450. The owner of the land on which anything has
been built, planted or sown in bad faith may demand the
demolition of the work, or 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 the builder or planter to pay
the price of the land, and the sower the proper rent. (363a)
Article 451. In the cases of the two preceding articles, the
landowner is entitled to damages from the builder, planter
or sower. (n)
This provision applies when the owner of the land
chooses not to exercise his right to appropriate the
improvements granted him by Article 449. Together with
Articles 450 and 451, the following are the three alternative
rights of the owner in good faith:
(1) To appropriate what has been built,
planted, or sown in bad faith without any
obligation to pay any indemnity therefor except for
necessary expenses for the preservation of the land
(Art. 452.), plus damages; or
(2) To ask the removal or demolition of
what has been built, etc. at the builder’s, etc.
expense, plus damages; or
(3) To compel the builder or planter to pay
the price or value of the land, whether or not the
value of the land is considerably more than the
value of the improvements, and the sower, to pay
the proper rent, plus damages.
Article 451 does not provide the basis for damages.
The amount should reasonably correspond with the value of
the properties lost or destroyed as a result of the occupation
in bad faith, as well as the fruits (natural, industrial or civil)
from those properties that the owner of the land reasonably
expected to obtain. (Heirs of Ramon Dunan, Sr. v. Uy, 344
SCRA 238 [2000])
In a case, where a lessee was found to be a builder
in bad faith, the owner of the land was held entitled to
damages equivalent to the fair rental value of the land
beginning from the time the lessee started construction
until the owner recovered possession thereof. (Bugatti v.
Court of Appeals, 136 SCAD 318, 343 SCRA 335 [2000])
c. Landowner and Builder/Planter/Sower are both in Bad
Faith (Art. 453)
Art. 453. If there was bad faith, not only on the part of the
person who built, planted or sowed on the land of another,
but also on the part of the owner of such land, the rights of
one and the other 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 with his knowledge
and without opposition on his part. (364a)
NOTE: Art. 448 will apply.
Floreza v. Evangelista, 1980
We uphold the Court of Appeals in its
conclusion that Article 448 of the Civil Code is
inapplicable to the factual milieu herein. Said codal
provision applies only when the builder, planter, or
sower believes he had the right so to build, plant or
sow because he thinks he owns the land or believes
himself to have a claim of title. In this case,
petitioner makes no pretensions of ownership
whatsoever.
Petitioner concedes that he was a builder
in bad faith but maintains that' the
EVANGELISTAS should also be held in bad faith,
so that both of them being in bad faith, Article 453
of the Civil Code should apply. By the same token,
however, that Article 448 of the same Code is not
applicable, neither is Article 453 under the
ambiance of this case
d. Landowner is in Bad Faith, Builder/Planter/Sower in Good
Faith (Art. 454)
Art. 454. When the landowner acted in bad faith and the
builder, planter or sower proceeded in good faith, the
provisions of article 447 shall apply. (n)
NOTE: If the landowner is in bad faith — He becomes the
owner of the materials but he must pay: (1) Their value (2)
and damages. The exception is when the owner of the
materials decides to remove them whether or not
destruction would be caused. (In this case, the materials
would still belong to the owner of said materials, who in
addition will still be entitled to damages).
e. Landowner, builder, and owner of the materials are
different persons (Art. 455)
Art. 455. If the materials, plants or seeds belong to a third
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 with which to pay.
This provision shall not apply if the owner makes use of the
right granted by Article 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. (365a)
NOTES:
This article deals solely with the right of the owner of the
materials regardless of the good or bad faith of the owner of
the land and of the builder, planter or sower, the rights of
the owner and the builder, etc. being governed by the
preceding articles.
(1) Owner of materials acted in good faith
regardless of the good or bad faith of the others. —
He is entitled to reimbursement for the value of the
materials principally from the builder, etc. because
he is the one who made use of the same. If the
latter is insolvent, the owner of the land shall be
subsidiarily liable, because he is benefited by the
accession when he appropriates what is built, etc.
(2) Owner of materials acted in bad faith
but the others in good faith. — If the materials
were used “with his knowledge and without
opposition on his part,’’ but the owner of the land
and the builder, etc., acted in good faith, he forfeits
his rights to his materials without the right to be
indemnified, as the case falls under Article 449 and
makes himself liable for any consequential
damages. (Art. 451.) It is the same as if he himself
built, planted, or sowed.
(3) Only builder, etc. acted in bad faith. —
If the owner of the land appropriates the accession,
the builder, etc. shall be principally liable to the
owner of the materials for their value plus
damages. In case of insolvency of the builder, etc.,
the owner of the land shall be subsidiarily liable to
 the owner of the materials for their value but not
for damages for he acted in good faith. The builder,
etc. is also liable to the owner of the land. (Arts.
450, 451.)
(4) Only owner of land acted in good faith.
— The landowner can exercise his alternative
rights under Articles 449 and 450 with a right to
demand damages from both. (Art. 451.) Since both
the owner of the materials and the builder, etc.
acted in bad faith, as between them, they are
treated as having both acted in good faith. Hence,
the owner of the materials is entitled to be
reimbursed by the builder, etc.
The owner of the land is not subsidiarily
liable to the owner of the materials or to the
builder, etc. in case the latter pays the value of the
materials (par. 2.) because as to the owner of the
land, the last two are in bad faith.
(5) All acted in bad faith. — In this case,
Article 455 will apply for, in accordance with
Article 453, their rights shall be the same as though
all of them acted in good faith.
(6) Liability of landowner. — He shall be
subsidiarily liable for the value of the materials if
the following requisites are present:
(a) The owner of the materials has not
acted in bad faith;
(b) The builder, etc. has no property with
which to pay; and
(c) He (landowner) appropriates the
accession to himself.
If he makes use of the right granted him
by Article 450, i.e., he compels the builder, etc. in
bad faith to remove the improvements (so the
materials will be returned to their owner) or to pay
the price of the land, or, in the case of the sower, to
pay the proper rent, he shall not be subsidiarily
liable.
(7) Right of builder, etc. who pays owner
of materials. — If the builder, etc. pays the owner
of the materials, the former may seek
reimbursement from the landowner for the value
of the materials and labor to prevent unjust
enrichment of the landowner at the expense of the
builder, etc. This is true if:
(a) The builder, etc., acted in good faith;
and
(b) The owner of the land appropriates the
improvement.
If the owner of the land acted in bad faith,
he shall pay the value of the materials with
damages. The builder, etc., or the owner of the
materials may remove them whether or not injury
would be caused, also with damages. (Arts. 447,
454)
f. Good Faith and Negligence (Art. 456)
Art. 456. In the cases regulated in the preceding articles,
good faith does not necessarily exclude negligence, which
gives right to damages under article 2176. (n)
NOTE: Good faith does not necessarily preclude negligence,
for, in fact, in negligence there is no intention to do wrong
or cause damage unlike in bad faith which presupposes such
intention. A party guilty of negligence, irrespective of his
good faith, shall be liable for the damage done in
accordance with the rule on culpa aquiliana or quasi-delict
provided in Article 2176 of the Civil Code.
vi. Alluvion (Art. 457)
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.
NOTES:
Alluvion are the soil deposits while accretion is the process.
a. Requisites
Essential Requisites of Alluvion:
(a) The deposit should be gradual and
imperceptible (as a process);
(b) Cause is the current of the river (and
not due to works expressly designed for the
purpose);
(c) Current must be that of a river (if a
lake, the Spanish Law of Waters must apply; if the
sea, the deposit belongs to the State). (Gov’t. of the
Phils. v. Cabangis, 53 Phil. 112).
(d) The river must continue to exist
(otherwise, if the river disappears, Art. 461 and not
Art. 457 should apply). (See Pinzon v. Rama, [CA]
2 O.G. No. 3, p. 307)
(e) The increase must be comparatively
little, and not, for example, such as would increase
the area of the riparian land by over one hundred
fifty per cent. (De Lasa v. Juan, et al., CA, L-3076-
R, May 25, 1950)
[NOTE: It is not necessary, however: 1) that the riparian
owner should make an express act of possession, the
accession being automatically his the moment the soil
deposit can be seen. (See Cortez v. City of Manila, 10 Phil.
567; Roxas v. Tuason, 9 Phil. 408; 3 Manresa 236) 2) that
the riparian owner has completely paid for the value of the
riparian estate (in case of purchase), as long as he has
already the equitable or beneficial title (See Director of
Lands, et al. v. Rizal, et al., L-2925, Dec. 29, 1950; 16
Lawyer’s Journal 363)
[NOTE: Alluvium, caused by artificial means is prohibited
and penalized, unless made with the authorization of the
Government. (See Com. Act No. 383). If the alluvium is
caused by “fish traps” in a river, would this be artificial
alluvium? No, unless there was a deliberate desire to cause
alluvium. (Zapata v. Director of Lands, L-17645, Oct. 30,
1962)
b. Riparian Owner
Art. 457. To the owners of lands adjoining the banks of declaration has been made by said departments, the
rivers belong the accretion which they gradually receive lot in question forms part of the public domain.
from the effects of the current of the waters.
Heirs of Emiliano Navarro v. IAC, 1997
Office of the City Mayor v. Ebio, 2010
Respondent’s claim of ownership over the disputed
It is an uncontested fact that the subject land was
property under the principle of accretion, is
formed from the alluvial deposits that have
misplaced. Respondent’s own land lies between the
gradually settled along the banks of Cut-cut creek.
Talisay and Bulacan Rivers; in front of their land
This being the case, the law that governs
on the northern side lies now the disputed land
ownership over the accreted portion is Article 84
where before 1948, there lay the Manila Bay. If the
of the Spanish Law of Waters of 1866, which
accretion were to be attributed to the action of
remains in effect, in relation to Article 457 of the
either or both of the Talisay and Bulacan Rivers,
Civil Code.
the alluvium should have been deposited on either
or both of the eastern and western boundaries of
Republic v.
petitioners' own tract of land, not on the northern
Abrille, 1976
portion thereof which is adjacent to the Manila
Bay. Clearly lacking, thus, is the third requisite of
The step taken by defendant-appellant in
accretion, which is, that the alluvium is deposited
petitioning the court for the approval of their
on the portion of claimant's land which is adjacent
Subdivision Plan (LRC) Psd-69322 and then Psd-
to the river bank.
71236 to include the questioned increased area of
82,127 square meters is, to say the least,
The disputed land, thus, is an accretion not on a
unwarranted and irregular. In order to bring this
river bank but on a sea bank, or on what used to be
increase in area, which the parties admitted to have
the foreshore of Manila Bay which adjoined
been a former river bed of the Davao River, under
petitioners' own tract of land on the northern side.
the operation and coverage of the Land
As such, the applicable law is not Article 457 of the
Registration Law, Act 496, proceedings in
Civil Code but Article 4 of the Spanish Law of
registrations of land title should have been filed
Waters of 1866.
instead of an ordinary approval of subdivision plan.
Article 4 of the Spanish Law of Waters of August 3,
Grande v. CA, 1962
1866 provides as follows:
"Lands added to the shores by accretions
There can be no dispute that both under Article
and alluvial deposits caused by the
457 of the new Civil Code and Article 366 of the
action of the sea, form part of the public
old, petitioners are the lawful owners of said
domain. When they are no longer
alluvial property, as they are the registered owners
washed by the waters of the sea and are
of the land to which it adjoins. The question is
not necessary for purposes of public
whether the accretion becomes automatically
utility, or for the establishment of
registered land just because the lot which receives
special industries, or for the coast-guard
it is covered by a Torrens title thereby making the
service, the Government shall declare
alluvial property imprescriptible. We agree with
them to be the property of the owners of
the Court of Appeals that it does not, just as an
the estates adjacent thereto and as
unregistered land purchased by the registered
increment thereof."
owner of the adjoining land does not, by extension,
become ipso facto registered land. Being so,
c. Ponds or Lagoons (Art. 458)
Respondents have acquired ownership over the
land by prescription. Art. 458. The owners of estates adjoining ponds or lagoons
do not acquire the land left dry by the natural decrease of
Ignacio v. Director of Lands, 1960 the waters, or lose that inundated by them in
extraordinary floods. (367)
Article 4 of the Law of Waters of 1866 provides
that when a portion of the shore is no longer NOTES:
washed by the waters of the sea and is not
necessary for purposes of public utility, or for the However, alluvion may apply to ponds or lagoons provided
establishment of special industries, or for that the requisites are complied with. This is because ponds
coastguard service, the government shall declare it or lagoons are of similar nature to that of a river.
to be the property of the owners of the estates
adjacent thereto and as an increment thereof. We vii. Avulsion (Art. 459)
believe that only the executive and possibly the
legislative departments have the authority and the Art. 459. Whenever the current of a river, creek or torrent
power to make the declaration that any land so segregates from an estate on its bank a known portion of
land and transfers it to another estate, the owner of the
gained by the sea, is not necessary for purposes of
land to which the segregated portion belonged retains the
public utility, or for the establishment of special ownership of it, provided that he removes the same within
industries, on for coast-guard service. If no such two years.

a. Avulsion v. Alluvion
Alluvion Avulsion
1. The deposit of the soil 1. Sudden or abrupt process
here is gradual. may be seen. (Canas v.
Tuason, 5 Phil. 688).
2. Soil cannot be identified. 2. Identifiable or verifiable
3. Belongs to owner of 3. Belongs to owner from
property to which it is whose property it was
attached detached
[NOTE: In the absence of evidence that the change in the
course of the river was sudden or that it occurred through
alluvium, the presumption is that the change was gradual
and was caused by alluvium and erosion. (Payatas-Estate
Improvement Co. v. Tuason, 53 Phil. 55; Hodges v. Garcia,
L-12730, Aug. 22, 1960)
b. Requisites
There are three requisites, to wit:
(1) The segregation and transfer must be caused by
the current of a river, creek, or torrent. — It will
be useful to define the terms used by the law.
(a) Current refers to the continuous
movement of a body of water, often horizontal, in a
certain direction.
(b) River has been defined as “a natural
surface stream of water of considerable volume and
permanent or seasonal flow’’ (Webster’s 3rd Int.
Dictionary, p. 1962.), emptying into an ocean, lake
or other body of water.
(c) Creek11 is a small islet extending
further into the land; a natural stream of water
normally smaller than and often tributary to a
river. (see Ibid., p. 533.)
(d) Torrent is a violent stream of water as a
flooded river or one suddenly raised by a heavy
rain and descending a steep incline; a raging flood
or rushing stream of water. (see Ibid., p. 2413.)
Suppose a known portion of land is transferred
from one estate to another by other forces of
nature than the current of a river, such as when
land from a mountain slope rolls down to another
estate by reason of an earthquake, will Article 459
apply?
A noted authority has opined that in the absence of
an express provision on the matter, Article 459 can
be applied by analogy. (II Tolentino, op. cit., p. 122,
citing Borell y Soler, pp. 298-299.) The spirit of the
article justifies its application.
(2) The segregation and transfer must be sudden or
abrupt. — Thus, where the evidence conclusively
showed that prior to or about the year 1888 the
parcels of lands in question formed an integral part
of the Payatas Estate and that in that year and
subsequent years owing to the sudden and marked
changes in the course of the San Mateo River, the
parcels were separated from the main part of the
Payatas Estate and were transferred to another side
of the river, it was held that said parcels still
belonged to the Payatas Estate, pursuant to Article
459. (Martinez v. Municipality of San Mateo, 6
Phil. 3 [1906])
But where the only evidence in the case to show
that the tract of land of thirty hectares had been
separated by the current and transported to the
other side of the river was the testimony of one or
two witnesses who declared “that the bank was
eaten away every year to a certain extent by the
[San Mateo] river, that is, the river x x x destroyed
the bank of the river,’’ it was impossible to say that
the current of this river had separated from the
Mariquina Estate a known parcel and had
transferred it to the Payatas Estate side. The mere
fact that thirty years ago the land in question was
on the Mariquina side of the river was held not
sufficient to prove that Article 368 (now Art. 459.)
was applicable. (Cañas v. Tuason, 15 Phil. 688
[1910])
In the absence of evidence as to whether the
change in the course of a river was caused by
accretion and erosion (alluvion) or whether it had
occurred through avulsion, the presumption is that
the change was gradual and was caused by alluvion.
(Payatas Estate Improvement Co. v. Tuason, 53
Phil. 55 [1929])
(3) The portion of land transported must
be known or identifiable. — In avulsion, the
detached portion must be known or at least,
identifiable. The law contemplates mass of earth
suddenly transferred from one estate to another
and, therefore, removable by the original owner.
Even if the detached portion be placed on top of
another land instead of being adjoined to it, Article
459 is still applicable as long as it can be identified
as coming from the estate from which it was
detached. (see Art. 463.)
If only soil is removed by the water and spread
over another’s land such that no known portion
can be said to exist which can be removed, there is
no avulsion. The latter acquires ownership by right
of accretion.
c. Removal
The former owner preserves his ownership
of the segregated portion provided he removes (not
merely claims) the same within the period of two
years. The period is considered sufficient for the
original owner to effect the removal of the
transferred portion which may be of considerable
area.
Although Article 459 does not expressly
say, it would seem that his failure to do so would
have the effect of automatically transferring
ownership over it to the owner of the other estate.
The law does not expressly require that the new
owner take formal possession of the segregated
 portion. Neither does it make distinction between
voluntary or involuntary failure to remove, and
between private land and land of the public
domain.
Among the reasons given for the clause on removal
within two years are the following:
(1) The segregated portion is usually very
small and it is thus useless to the original owner of
the land from which it originated and which is
generally far from the other land;
(2) The principle involved is similar to that
underlying Article 460 whereby the owner of
uprooted trees must claim them within six (6)
months;
(3) If the owner of the separated portion
retains his ownership without any qualification, he
would have a right to enter the other estate at any
time, and this easement, aside from preventing the
owner of the latter estate from enjoying his
property, may create ill-feeling between them; and
(4) After a time the transferred portion
may become permanently attached, physically
speaking to the other land; the original owner
should, therefore, remove it as soon as possible and
within two years. (see Memorandum of the Code
Commission, Feb. 17, 1951, 8 Lawyer’s Journal, p.
217)
viii. Change of Course of Rivers (Art. 461-463)
Article 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. (370a)
Article 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. (372a)
Article 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. (374)
NOTES: The abandoned river bed which had already dried
up is a property of public dominion. Hence, there is a need
for a declaration by the State that it is awarded to the owner
whose lands are occupied by the new course of the river.
ix. Rule of Uprooted Trees (Art. 460)
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.
Example:
Because of the force of the river current, some trees
on the estate of A were uprooted and cast on the
estate of B. Who owns the trees? ANS.: A should
still be considered as the owner of the uprooted
trees, but if he does not claim them within six
months, B will become the owner. If A makes the
claim, he will have to shoulder the expenses for
gathering or putting them in a safe place. Failure to
make the claim within six months will bar any
future action to recover the trees.
Rule if Trees Have Been Transplanted
In the example given above, even if the trees have
been transplanted by the owner of the land upon
which they have been cast on his own land —
ownership still pertains to the person who lost the
trees provided that the claim was made properly.
(See 3 Manresa 244). Incidentally, the owner of the
land upon which the trees have been cast, does not
have to wait for six months before he can
temporarily set them aside to make proper use of
his own land.
x. Ownership of Islands (Art. 464-465)
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.
NOTES:
Who owns island formed by unidentifiable accumulated
deposits?
ANS.: It depends.
(a) If formed on the sea —
1) Within the territorial waters or
maritime zone or jurisdiction of the
Philippines — STATE. (Art. 464) (This is
patrimonial property — Manresa).
2) Outside of our territorial
jurisdiction — The FIRST COUNTRY TO
EFFECTIVELY OCCUPY the SAME. (This
is in accordance with the principles of
Public International Law for “discovery
and occupation considered as a definite
mode of acquiring territory.’’)
(b) If formed on lakes, or navigable or floatable
rivers — the State. (This is also patrimonial
property — Manresa).
(c) If formed on non-navigable or non-floatable
rivers —
1) If NEARER in margin to one
bank, owner of nearer margin is SOLE
owner. (Art. 465)
2) If EQUIDISTANT, the island
shall be divided longitudinally in halves,
each bank getting half. (Art. 465)
Definitions
 (a) Navigable or floatable river — if useful
for floatage and commerce, whether the tides affect
the water or not (45 C.J. 403-404); should benefit
trade and commerce. (U.S. v. Oregon, 295 U.S. 1)
(b) Non-Navigable — opposite of (a).
Rule to Follow if a New Island is Formed
Between the Older Island and the Bank
In this case, the owner of the older island is
considered a riparian owner, and if the new island
is nearer in margin to the older island, the owner
of the older island should be considered also the
owner of the new island. (See Manresa 262-263,
265).
3. Right of Accesion with Respect to Movable Property
i. Adjunction
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.
a. Requisites
Ownership of new object formed by adjunction
(1) If the union took place without bad
faith, the owner of the principal thing acquires the
accessory, with the obligation to indemnify the
former owner of the accessory for its value in its
uncontroverted state.
(2) If the union took place in bad faith,
Article 470 applies.
d. Tests to Determine which is the Principal Thing
Art. 467. The principal thing, as between two things
incorporated, is deemed to be that to which the other has
been united as an ornament, or for its use or perfection.
(376)
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.
(377)

Tests to determine principal in adjunction

In order that adjunction may take place, it
To determine which, as between two things
is necessary that:
incorporated, is the principal and which is the accessory,
(1) There are two movables
Articles 467 and 468 provide certain criteria. In the order of
belonging to different owners;
application, the principal is that:
(2) They are united in such a way
(1) To which the other (accessory) has
that they form a single object; and
been united as an ornament or for its use or
(3) They are so inseparable that
perfection. (Art. 467.) This is “the rule of
their separation would impair their nature
importance and purpose’’;
or result in substantial injury to either
(2) Of greater value, if they are of unequal
component.
values;
(3) Of greater volume, if they are of an
In determining the right of the parties in
equal value (Art. 468.); and
adjunction, regard is had only to the things joined
(4) Finally, that of greater merits taking
and not to the persons. But where there is a mere
into consideration all the pertinent legal provisions
change of form or value which does not destroy the
(e.g., Art. 475) applicable as well as the
identity of the component parts, the original
comparative merits, utility and volume of their
owners may demand their separation. (see Art.
respective things. (3 Manresa 285-286.)
469.)

The second test is reasonable because, as a general

b. Kinds
rule, things of greater value are more important than things
of smaller value. The third test is purely arbitrary but is
Adjunction may take place by:
based on the necessity of resolving the matter somehow.
(1) inclusion or engraftment, such as when
diamond is set on a gold ring;
The special rule regarding painting, etc. in the
(2) soldadura or soldering, such as when
second paragraph of Article 468 is based on the
lead is united or fused to an object made of lead; it
consideration that what is painted, etc. is of greater value or
is ferruminacion if both the accessory and principal
importance than the board, etc. inasmuch as the exceptions
objects are of the same metal; and plumbatura, if
mentioned are specified, its provision cannot be applied by
they are of different metals;
analogy to cases of adjunction of similar nature which are
(3) escritura or writing, such as when a
deemed excluded. Such cases shall be determined in
person writes on paper belonging to another;
accordance with Articles 467 and 468.
(4) pintura or painting, such as when a
person paints on canvas belonging to another; or
Where adjunction involves three or more things
(5) tejido or weaving, such as when
In case adjunction takes place as to three
threads belonging to different owners are used in
or more things, Article 466, et seq. should be
making textile.
applied in an equitable manner. The principal
should be determined and distinguished from the
others which would be considered the accessories.
c. Ownership
 Should there be two or more things that could be
considered principals with respect to the others,
still the court should determine by resort to
reasonable means which is the principal thing and
which are the accessory things. (3 Manresa 279)
e. Separation of things united, when allowed, Rules
when there is bad faith, Indemnity
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. (378)
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 (379a)
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.
(380)
When separation of things united allowed
(1) Separation without injury. —
Whenever the separation can be done without
injury (not destruction), their respective owners
may demand their separation. Here, there has been
no real accession. Article 469 apparently
contemplates adjunction by inclusion and by
soldering in which separation is possible without
injury to the things united. (3 Manresa 288)
(2) Accessory much more precious. —
Under the second paragraph, where the thing (e.g.,
diamond) united for the use, embellishment or
perfection of the other, is much more (see Art.
448.) precious than the principal thing (e.g., gold
ring), the owner of the former may demand its
separation even though the principal thing may
suffer some injury. The owner who made or caused
the union or incorporation shall bear the expenses
for separation because he is the one considered at
fault although he also acted in good faith. (3
Manresa 289)
(3) Owner of principal acted in bad faith. — The
owner of the accessory thing may separate it even
if the principal thing be destroyed. (Art. 470.)
Adjunction in bad faith
(1) Bad faith on the part of owner of accessory:
(a) He shall lose the thing incorporated;
and
(b) He shall be liable for damage to the
owner of the thing.
(2) Bad faith on the part of owner of principal:
(a) The owner of the accessory thing is
given the option either:
1) To require the owner of the
principal thing to pay the value of
the accessory thing; or
2) To have the accessory thing
separated even if for the purpose
it be necessary to destroy the
principal thing; and
(b) He shall be entitled to damages, in
either case.
The option given above is applicable to the
adjunction provided in Article 469 but not
to the cases mentioned in the second
paragraph of Article 468 (paintings, etc.)
for separation is not possible. In such
cases, the owner of the accessory thing is
limited to the first option with the right to
indemnity for damages. (3 Manresa 293)
(3) Bad faith on the part of both. — Under the
third paragraph, their respective rights shall be
determined as though both acted in good faith.
Article 453 should be applied. There is bad faith
when either one of the owners made the union
with the knowledge and without the objection of
the other. (see Art. 453, par. 2.)
Form of indemnity
The material employed may be the principal or the
accessory the owner of which has right to an indemnity
because he acted in good faith while the other who made
the incorporation without his consent, acted in bad faith.
The innocent owner has the option to demand the delivery
of a thing equal in kind and value and in all other respects
(e.g., quantity, quality, appearance) to that employed; or the
payment of its price, including its sentimental value (Art.
475.) as appraised by experts.
The right option granted by Article 471 is without prejudice
to the right given to the owner of the accessory thing to
demand its separation from the principal thing under the
second paragraph of Articles 469 and 470.
ii. Mixture
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. (381)
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 thing with
which his own was mixed. (382)
a. Kinds
Articles 472 and 473 deal with mixture which takes
place when two or more things belonging to
different owners are mixed or combined with the
respective identities of the component parts
destroyed or lost. As distinguished from adjunction,
there is a greater degree of inter-penetration and,
in certain cases, even decomposition of the things
which have been mixed. (3 Manresa 277.)
There are two kinds of mixture:
(1) commixtion or the mixture of solid things
belonging to different owners; and
(2) confusion or the mixture of liquid things
belonging to different owners.
They may be voluntary or by chance.
b. Rules
Rules governing mixture
(1) Mixture by will of the owners. — Their rights
shall be first governed by their stipulations; in the absence
of any stipulation, each owner acquires a right or interest in
the mixture in proportion to the value of his material as in
co-ownership. (see Art. 485.)
(2) Mixture caused by an owner in good faith or by
chance. — The share of each owner shall also be
proportional to the value of the part which belonged to
him. (see Art. 413, par. 1.) The rule is different in cases of
accession which give to the owner of the principal, right
over the accessory. (see Art. 440.) Strictly speaking, there is
no accession in mixture since there is neither a principal
nor an accessory.
(a) If the things mixed are exactly of the
same kind and quality, there is no conflict of rights;
all that is needed would be to divide the mixture
equally or proportionately, as the case may be,
between the different owners.
(b) Co-ownership arises when the things
mixed are of different kinds or quality.
Nevertheless, if the things mixed can be separated
without injury, their respective owners may
demand their separation. The expenses incident to
separation shall be borne by all the owners in
proportion to their respective interests in the
mixture. (3 Manresa 299-300.) Note that good faith
does not necessarily exclude negligence which
gives right to damages. (Art. 456.)
(3) Mixture caused by an owner in bad faith. —
The actor not only forfeits the thing belonging to him but
also becomes liable to pay indemnity for the damages
caused to the other owner. (Art. 473, par. 2)
(4) Mixture made with the knowledge and without
the objection of the other owner. — Applying the
provisions of Article 470 (par. 3.) by analogy, their
respective rights shall be determined as though both acted
in good faith.
iii. Specification
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 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. (383a)
Rules governing specification
(1) Person made use of material of another in good
faith. — The worker becomes the owner of the new thing
but he must indemnify the owner (also in good faith) of the
material for its value.
(a) Exception. — If the material is more precious or
of more value than the new thing, the owner of the
material may choose:
1) To appropriate the new thing to himself
but must pay for the value of the work or
labor; or
2) To demand indemnity for the material.
Where the person who made use of the material acted in
good faith but the owner thereof acted in bad faith, the
rules provided in Article 470 (par. 2.) may be applied by
analogy. The maker may appropriate the new thing without
paying the owner of the material or require the owner to
pay him the value of the thing or the value of his work or
labor, with a right to indemnity for damages.
(2) Person made use of material of another in bad
faith. — The owner of the material has the option either to
appropriate the work to himself without paying the maker;
or to demand the value of the material plus damages.
(a) Exception. — The first option is not
available in case the value of the work, for artistic
or scientific reasons, is considerably more than that
of the material. (see Art. 448.) This exception
prevents unjust enrichment of the owner of the
material at the expense of the maker. Here, the
labor or work is considered as the principal.
By way of illustration, a piece of canvas worth P100 may
have been used in bad faith in painting a masterpiece worth
P100,000. In such a case to allow the owner of the material
to appropriate the painting would be manifestly unjust and
would unduly enrich him at the expense of the painter. Or
one’s material may have been used in good faith by a
scientist in the making of a new instrument of tremendous
scientific value.
For the same reason, the owner of the material is not
allowed to appropriate the thing apart from the
consideration that the country and the world in general
may lose the benefit of such instrument, if allowed to fall in
the hands of an ignorant owner of the material. (I
Capistrano, op. cit., p. 436)
(3) Person made use of material of another with the
consent and without objection of the latter. — Applying the
provisions of Article 470 (par. 3.) by analogy, their rights
shall be determined as though both acted in good faith.
Adjunction, mixture, and specification distinguished
The distinctions are the following:
(1) In the first two, there would be at least two things,
while in the third, there may be only one thing whose form
is changed;
(2) In the first and the third, the component parts retain or
preserve their nature, while in the second, the things mixed
may or may not retain their respective original nature; and
(3) In the first and the third, the principle that accessory
follows the principal applies, while in the second, co-
ownership results.
iv. Sentimental Value
Art. 475. In the preceding articles, sentimental value shall
be duly appreciated. (n)
Appraisal of sentimental value
Sentimental value shall be duly appreciated in the
payment of the proper indemnity in accessions
with respect to movable property in the cases
provided in the preceding articles. Article 475
applies particularly to Article 468 (par. 1.) and
Article 469. (par. 2)
Sentimental value attached to a thing (e.g.,
paintings, wedding rings, precious stones, and
other jewels) is not always easy to estimate because
it depends upon a person’s subjective evaluation. In
the adjudication of moral damages, the sentimental
value of property, real or personal, may be
considered by the court. (Art. 2218.)
c. QUIETING OF TITLE (ART. 476-481)
Article 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.
Article 477. The plaintiff must have legal or equitable title
to, or interest in the real property which is the subject
matter of the action. He need not be in possession of said
property.
Article 478. There may also be an action to quiet title or
remove a cloud therefrom when the contract, instrument
or other obligation has been extinguished or has
terminated, or has been barred by extinctive prescription.
Article 479. The plaintiff must return to the defendant all
benefits he may have received from the latter, or
reimburse him for expenses that may have redounded to
the plaintiff's benefit.
Article 480. The principles of the general law on the
quieting of title are hereby adopted insofar as they are not
in conflict with this Code.
Article 481. The procedure for the quieting of title or the
removal of a cloud therefrom shall be governed by such
rules of court as the Supreme Court shall promulgated.
1. Cloud on Title
i. Requisites
Requisites for existence of cloud. — A
cloud (doubt or uncertainty) on title exists when
the following conditions are present:
(a) There is an instrument, record,
claim, encumbrance or proceeding which
is apparently valid or effective;
(b) Such instrument, etc. is, in
truth and in fact, invalid, ineffective,
voidable, or unenforceable (despite its
prima facie appearance of validity or legal
efficacy), or has been extinguished or
terminated, or has been barred by
extinctive prescription (Art. 478.); and
(c) Such instrument, etc. may be
prejudicial to said title.
Under Article 476, a claimant must show that there
is an instrument, etc. which constitutes or casts a
cloud, doubt, question or shadow upon the owner’s
title to or interest in real property. The ground or
reason for filing a complaint for quieting of title
must, therefore, be “an instrument, record, claim,
encumbrance or proceeding.’’ Under the maxim
expresio unius est exclusio alterius, these grounds
are exclusive so that other reasons may not be
considered valid for the same action. Thus, alleged
acts of physical intrusion into one’s purported
property may be considered grounds for an action
for forcible entry but definitely not for quieting of
title. (Titong v. Court of Appeals, 92 SCAD 174,
287 SCRA 102 [1998])
ii. Instances
Instances of cloud of title. — Instances
when cloud of title on real property exists are:
 (a) An absolute fictitious contract of sale or
a sale with simulated consideration. Thus, if the
supposed vendor in an absolutely simulated
contract has every reason to believe that the
supposed vendee may want the contract enforced,
he may bring an action to declare the contract void
and thus, quiet his title;
(b) A sale by an agent without written
authority or after expiration of his authority;
(c) A forged contract;
(d) A contract of sale or donation which
has become inoperative because of non-
performance by the vendee or donee of a condition
precedent (Art. 1181.); and
(e) A voidable contract, i.e., where consent
was given through mistake, violence, intimidation,
undue influence, or fraud (Art. 1330.), or by one
without capacity (Art. 1326.)
2. Action to Quiet Title
i. Meaning
Meaning — Broadly speaking, an action to
remove cloud on or to quiet title is a remedy or
proceeding which has for its purpose an
adjudication that a claim of title to realty or an
interest thereon, adverse to the plaintiff, is invalid
or inoperative, or otherwise defective and hence,
the plaintiff and those claiming under him may
forever be free of any hostile claim. (see 44 Am.
Jur. 3-5.) It is a remedy which may be availed of
only when by reason of any instrument, etc.,
which appears valid but is, in fact, invalid,
ineffective, voidable, or unenforceable, a cloud is
thereby cast on the complainant’s title to real
property or any interest therein. (Heirs of E. Diaz
v. Virata, G.R. No. 162037, Aug. 6, 2006.) Under
Article 476, the only issue in an action to quiet title
is whether there is a cloud on a title to real
property because of any instrument, etc. that has a
prima facie appearance of validity. (Foster-Gallego
v. Galang, 435 SCRA 275 [2004])
Heirs of E. Diaz v. Virata, 2006
Article 477 of the same Code mandates that in an
action to quiet title, the party bringing the action
must have a legal or, at least, an equitable title to
the real property subject of the action and that the
alleged cloud on his title must be shown to be in
fact invalid. Verily, for an action to quiet title to
prosper, two indispensable requisites must concur,
namely: (1) the plaintiff or complainant has a legal
or an equitable title to or interest in the real
property subject of the action; and (2) the deed,
claim, encumbrance or proceeding claimed to be
casting cloud on his title must be shown to be in
fact invalid or inoperative despite its prima facie
appearance of validity or legal efficacy.
ii. Requisites
Requisites — For an action to quiet title to
prosper, two (2) requisites must concur, namely:
(a) The plaintiff or complainant has a legal
or an equitable title to, or interest in the real
property subject of the action (Art. 477.); and
(b) The deed, claim, or proceeding claimed
to be casting cloud on his title must be shown to
be, in fact, invalid or inoperative despite its prima
facie appearance of validity or legal efficacy.
(Calcala v. Republic, 464 SCRA 438 [2005])
The action may be brought as an
independent civil action. It can co-exist with an
action for unlawful detainer. (Oronce v. Court of
Appeals, 100 SCAD 277, 298 SCRA 133 [1998])
Title to real property has been held to refer to that
upon which ownership is based. It is the evidence
of the right of the owner or the extent of his
interest, by which means one can maintain control
and as a rule, assert a right to exclusive possession
and enjoyment of the property. (Evangelista v.
Santiago, 457 SCRA 744 [2005]; Rumarate v.
Hernandez, 487 SCRA 317 [2006])
A decision in a prior accion reivindicatoria
constitutes res judicata in a subsequent action for
quieting of title. But not a decision in a prior
ejectment case.
Calacala v. Republic, 2005
Verily, for an action to quiet title to prosper, two
(2) indispensable requisites must concur, namely:
(1) the plaintiff or complainant has a legal or an
equitable title to or interest in the real property
subject of the action; and (2) the deed, claim,
encumbrance or proceeding claimed to be casting
cloud on his title must be shown to be in fact
invalid or inoperative despite its prima facie
appearance of validity or legal efficacy.
In this case, unfortunately, the foregoing requisites
are wanting in this case. For one, it bears stressing
that petitioners' predecessors-in-interest lost
whatever right they had over land in question from
the very moment they failed to redeem it during
the 1-year period of redemption. Certainly, the
Republic's failure to execute the acts referred to by
the petitioners within ten (10) years from the
registration of the Certificate of Sale cannot, in any
way, operate to restore whatever rights petitioners'
predecessors-in-interest had over the same.
Robles v. CA, 2000
That there is an instrument or a document which,
on its face, is valid and efficacious is clear in the
present case. Petitioners allege that their title as
owners and possessors of the disputed property is
clouded by the tax declaration and, subsequently,
the free patent thereto granted to Spouses Vergel
and Ruth Santos. The more important question to
be resolved, however, is whether the petitioners
have the appropriate title that will entitle them to
avail themselves of the remedy of quieting of title.
In a real estate mortgage contract, it is essential
that the mortgagor be the absolute owner of the
property to be mortgaged; otherwise, the mortgage
is void. In the present case, it is apparent that
Hilario Robles was not the absolute owner of the
entire subject property; and that the Rural Bank of
Cardona, Inc., in not fully ascertaining his title
thereto, failed to observe due diligence and, as
such, was a mortgagee in bad faith.
In the light of their open, continuous, exclusive
and notorious possession and occupation of the
land, petitioners are "deemed to have acquired, by
operation of law, a right to a grant, a government
grant, without the necessity of a certificate of title
being issued." The land was "segregated from the
public domain." Accordingly, the director of lands
had no authority to issue a free patent thereto in
favor of another person. Verily, jurisprudence
holds that a free patent covering private land is null
and void
iii. Suitor
Suitor — The suitor need not be in
possession of the property (Tan v. Valdenueza, 66
SCRA 61 [1975].) nor have an absolute title, an
equitable title being sufficient to clothe him (e.g.,
vendee in an oral contract of sale of land who had
made part payment and entered possession) with
personality to bring an action to quiet title. (Pingol
v. Court of Appeals, 44 SCAD 498, 226 SCRA 118
[1993]) While generally the registered owner of
property is the proper party to bring an action to
quiet title, the remedy may also be availed of by a
person other than the registered owner, because
“title,’’ as used in Article 476, does not necessarily
refer to the original or transfer certificate of title.
(Portic v. Cristobal, 456 SCRA 577 [2005])
Tan v. Valdehueza, 1975
The Valdehuezas submit that the dismissal of civil
case 2002 operated, upon the principle of res
judicata, as a bar to the first cause of action in civil
case 2574. We rule that this contention is
untenable as the causes of action in the two cases
are not identical. Case 2002 was for injunction
against the entry into and the gathering of nuts
from the land, while case 2574 seeks to "remove
any doubt or cloud of the plaintiff's ownership . . ."
(Amended complaint, Rec. on App., p. 27), with a
prayer for declaration of ownership and recovery
of possession.
The judgment in the first case could not and did
not encompass the judgment in the second,
although the second judgment would encompass
the first. Moreover, the new Civil Code provides
that suitors in actions to quiet title "need not be in
possession of said property."
Pingol v. CA, 1993
Although the private respondents' complaint
before the trial court was denominated as one for
specific performance, it is in effect an action to
quiet title.
That a cloud has been cast on the title of the
private respondents is indubitable. Despite the fact
that the title had been transferred to them by the
execution of the deed of sale and the delivery of
the object of the contract, the petitioners
adamantly refused to accept the tender of payment
by the private respondents and steadfastly insisted
that their obligation to transfer title had been
rendered ineffective.
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.
iv. Nature of Action
(1) Suit quasi in rem — Actions to quiet
title are not technically suits in rem, nor are they,
strictly speaking, in personam, but, being against
the person in respect of the res, wherein the
judgment does not extend beyond the property in
controversy, these proceedings acquire a status that
may be characterized as suits quasi in rem (Title
Co. v. Kerrigan, 150 Cal. 289, 88 P. 356, 8 L.R.A.
[N.S.] 682, 119 Am. St. Rep. 199; 21 R.C.L. 1285.),
an action in personam concerning real property,
and, therefore, the judgment therein is enforceable
only against the defeated party and his privies and
shall not prejudice persons who are not parties to
the action.
In an action quasi in rem, an individual is named as
defendant. However, unlike suits in rem, a quasi in
rem judgment is conclusive only between the
parties. (Portic v. Cristobal, 456 SCRA 577 [2005])
The res, the subject-matter of the controversy, is
within the court’s jurisdiction, and it is because of
that circumstance that the court is able to
adjudicate the defendant’s interest in it. It is not
essential that the court acquire jurisdiction of the
person of the defendant. (Jacob v. Roberts, 223 U.S.
261, 32 S. Ct. 303, 56 L. Ed. 429; McDaniel v.
McElvy, [Fla.] 108 So. 820)
It has been held that the pendency of an action for
quieting title before the Regional Trial Court does
not divest the city or municipal trial court of its
jurisdiction with the ejectment case over the same
property. (Oblea v. Court of Appeals, 61 SCAD 100,
244 SCRA 101 [1995])
(2) Essentially a common law remedy —
Regarding also the nature of the action:
“Quieting of title is a common law remedy
for the removal of any cloud upon or doubt or
uncertainty with respect to title to real property.
Originating in equity jurisprudence, its purpose is
to secure ‘... an adjudication that a claim of title to
or an interest in property, adverse to that of the
complainant, is invalid, so that the complainant
and those claiming under him may be forever
afterward free from any danger of hostile claim.’ In
an action for quieting of title, the competent court
is tasked to determine the respective rights of the
complainant and other claimants, ‘... not only to
place things in their proper place, to make the one
who has no rights to said immovable respect and
not disturb the other, but also for the benefit of
both, so that he who has the right would see every
cloud of doubt over the property dissipated, and he
could afterwards without fear introduce the
improvements he may desire, to use, and even to
abuse the property as he deems best.’’ (Baricuatro,
Jr. v. Court of Appeals, 120 SCAD 643, 325 SCRA
137 [2000]; see PVC Investment & Management
Corporation v. Borcena, 470 SCRA 685 [2005])
Such remedy may be availed of under
circumstances enumerated in Article 476 of the
Civil Code. (Ibid.) An action for quieting of title is
not, however, the appropriate remedy where the
action would require the court hearing it to modify
or interfere with the judgment or order of another
co-equal court. Under the doctrine of non-
interference, a trial court has no authority to
interfere with the proceedings of a court of equal
jurisdiction, much less to annul the final judgment
of a co-equal court. (Foster- Gallego v. Galang, 435
SCRA 275 [2004])
(3) As an action for reconveyance. — An
action for quieting of title is equivalent to an action
for reconveyance of title wrongfully or erroneously
registered in another’s name where the successful
outcome of such action would necessarily entail
the cancellation of existing title wrongfully issued
to another. (Premiere Development Bank v. Court
of Appeals, 453 SCRA 630 [2005])
v. Prescriptibility of Action
(1) Plaintiff in possession. — An action to
quiet title brought by a person who is in possession
of the property is imprescriptible. (Gallar v.
Hussain, supra; see Heirs of Nagaño v. Court of
Appeals, 89 SCAD 80, 282 SCRA 43 [1997];
Mendoza v. Navarette, 214 SCRA 337 [1992]Benito
v. Saquitan-Ruiz, 394 SCRA 250 [2002].) If the
person claiming to be the owner of property is in
actual possession of the same, the right to seek
reconveyance, which, in effect, seeks to quiet title
to the property, does not prescribe. (Aznar
Brothers Realty Company v. Aying, 458 SCRA 496
[2005])
One who is in actual possession of a piece
of land claiming to be the owner thereof may wait
until his possession is disturbed or his title is
attacked before taking steps to vindicate his right,
the reason for the rule being that his undisturbed
possession gives him a continuing right to seek the
aid of a court of equity to ascertain and determine
the nature of the adverse claim of a third party and
its effect on his own title, which right can be
claimed only by one who is in possession. (Faja v.
Court of Appeals, 75 SCRA 441 [1977]; Fernandez
v. Court of Appeals, 189 SCRA 780 [1990];
Mamadrual v. Moson, 190 SCRA 82 [1990]; see
Berico v. Court of Appeals, 44 SCAD 84, 225 SCRA
469 [1993]; Pingol v. Court of Appeals, 44 SCAD
498, 226 SCRA 118 [1993]; David v. Malay, 115
SCAD 820, 318 SCRA 711 [1999])
(2) Plaintiff not in possession. — If the
plaintiff is not in possession of the property, he
must invoke his remedy within the proper
prescriptive period (Gallar v. Hussain, supra.) of ten
or thirty years depending on ordinary or
extraordinary prescription. (Arts. 1134, 1137.)
Although the action is brought within the period of
limitations, it may be barred by laches whose
essence is the doctrine of estoppel. (See Arts. 1431,
1433, 1437.) In addition to the action to quiet title,
the plaintiff who is not in possession may also
bring an action for ejectment, or to recover the
better right of possession, or to recover ownership
which must be brought within the proper statutory
periods of limitation governing such actions.
(Gallar v. Hussain, supra)
vi. Title and Possession of Plaintiff
Article 477. The plaintiff must have legal or equitable title
to, or interest in the real property which is the subject
matter of the action. He need not be in possession of said
property.
(1) Title or interest. — The plaintiff in an
action to quiet title must have a legal or equitable
title to, or an interest in the real property which is
the subject matter of the action. (See Binalay v.
Manalo, 195 SCRA 374 [1991]; Robles v. Court of
Appeals, 328 SCRA 97 [2000]) “Title’’ here does not
necessarily denote a certificate of title issued in
favor of the person filing the suit. (Maestrado v.
Court of Appeals, 122 SCAD 789, 327 SCRA 678
[2000])
(a) A legal title may consist in full
ownership or in naked ownership which is
registered in the name of the plaintiff.
(b) If the plaintiff (e.g., cestui que
trust) has the beneficial interest in the
property the legal title of which pertains
to another (e.g., trustee), he is said to have
equitable title. It has been held that a
homesteader who has complied with all
the terms and conditions which would
entitle him to a patent, has a vested right
over the land. He may be regarded as the
equitable owner thereof. (Nieto v. Quines,
1 SCRA 227 [1961])
(c) An interest in property is any
interest short of ownership, like the
interest of a mortgagee or a usufructuary.
In a suit to nullify an existing TCT in
which a real estate mortgage is annotated, the trial
court cancelled the TCT in the name of the
mortgagor without notice to the mortgagee (bank)
who is an indispensable party thereby rendering
 the judgment null and void. Held: Filing an action
for quieting of title is not an appropriate remedy as
it will not remedy what the mortgagee perceived as
a disregard of due process. The subject judgment
cannot be considered as a cloud on the mortgagee’s
title or interest over the property, which does not
even have a semblance of being a title. It could not
be proper to consider the judgment as a cloud that
would warrant the filing of an action for quieting
of title, because to do so would require the court
hearing the action to modify or interfere with the
judgment or order of another co-equal court.
(Metropolitan Bank & Trust Co. v. Alejo, 154
SCAD 798, 364 SCRA 812 [2001])
(2) Possession. — The plaintiff may or may
be in possession of the property. If he is not in
possession, he may also bring one of the three
actions mentioned (supra.) in addition to the action
to quiet title.
In order to afford complete relief to the
parties in an action to quiet title, the court may
determine incidentally the ownership, or the status
of the legal title to the property, or the right to the
possession thereof, without thereby converting the
action from quieting of title into accion publiciana.
(Padre v. Court of Appeals, 214 SCRA 446 [1992])
In ejectment cases, the only issue is physical or
material possession of the property involved.
Anyone who can prove prior possession de facto
may recover such possession even from the owner
himself. It has been ruled that the institution of a
separate action for quieting of title is not a valid
reason for defeating the execution of the summary
remedy of ejectment. (Oblea v. Court of Appeals,
61 SCAD 100, 244 SCRA 101 [1995]; Gachon v.
Devera, Jr., 84 SCAD 12, 275 SCRA 540 [1997])
vii. When Action to Quiet Title Allowed
Article 478. There may also be an action to quiet title or
remove a cloud therefrom when the contract, instrument
or other obligation has been extinguished or has
terminated, or has been barred by extinctive prescription.
Under the article, an action to quiet title may be
maintained:
(1) When the contract, instrument, or
other obligation has been extinguished, or has
terminated, as where the right of the defendant to
the property has been extinguished by the
happening of a condition subsequent (e.g., donation
of land shall be cancelled upon failure of donee
municipality to build a school house thereon
within a certain period); and
(2) When the contract, instrument or
other obligation has been barred by extinctive
prescription, as where the plaintiff has possessed in
bad faith the property publicly, adversely, and
uninterruptedly for thirty years.
viii. Obligation of Plaintiff
Article 479. The plaintiff must return to the defendant all
benefits he may have received from the latter, or
reimburse him for expenses that may have redounded to
the plaintiff's benefit.
NOTES: The purpose of the action to quiet title is solely to
remove the cloud on the plaintiff’s title or to prevent a
cloud from being cast upon his title and not to obtain any
other benefit. Also, the familiar maxim that “he who seeks
equity must do equity’’ very well applies to the plaintiff.
Hence, he is bound to return to the defendant all the
benefits he may have received from the latter or reimburse
him for the expenses incurred on the property which has
redounded to the plaintiff’s benefit less any damage, if any,
suffered by the plaintiff by reason of the contract, etc. and
whatever benefits received by the defendant from the
property.
d. RUINOUS BUILDINGS AND TREES IN DANGER OF
FALLING (ART. 482-483)
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. (389a)
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.
III. CO-OWNERSHIP (Arts. 484-501)
a. Definition
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.
(392)
NOTES:
(1) As a manifestation of ownership, co-ownership is that
form of ownership which exists whenever an undivided
thing or right belongs to different persons. It is one aspect
of ownership.
(2) As a right, it has been defined as the right of common
dominion which two or more persons have in a spiritual or
ideal part of a thing which is not materially or physically
divided. (3 Sanchez Roman 162)
b. Requisites
Under the law, there are three:
(1) There must be a plurality of owners. — This is
clear enough
(2) The object of ownership must be a thing or
right which is undivided — The subject matter of co-
ownership may be a thing which may be real or personal, or
a right constituted over a thing such as a leasehold right.
Thus, in a case, it was held that upon the death of the lessee
of a rural land, his rights as such, were transmitted to his
heirs, since the death of the lessee is not among the causes
that terminate lease of rural lands and the Civil Code (Art.
1178.) expressly provides that rights acquired by virtue of
an obligation are transmissible in accordance with law,
should there be no stipulation to the contrary. (Santiago v.
Villajin, [C.A.] 43 O.G. [No. 8], p. 3137)
(3) Each co-owner’s right must be limited only to
his ideal share of the physical whole — Prior to partition,
all that the co-owner has is an ideal or abstract quota in the
entire undivided thing owned in co-ownership. He cannot
point to a particular portion of the property as his very own.
c. Characteristics
The characteristics of co-ownership refer to its requisites
and other incidentals which distinguish it from other forms
of ownership.
They include the following:
(1) There are two or more co-owners;
(2) There is a single object which is not
materially or physically divided and over which
and his ideal share of the whole, each co-owner
exercises ownership, together with the other co-
owners;
(3) There is no mutual representation by
the co-owners; and
(4) It exists for the common enjoyment of
the co-owners;
(5) It has no distinct legal personality; and
(6) It is governed first of all by the contract
of the parties; otherwise, by special legal
provisions, and in default of such provisions, by the
provisions of Title III on Co-ownership.
d. Disputed portion/portions already concretely determined
There is no co-ownership when the different portions
owned by different people are already concretely
determined and separately identifiable, even if not yet
technically described.
(1) Thus, where the portion of a parcel of land sold
to a buyer is concretely determined or identifiable such as
when the northern half of the land belongs to the buyer
and the southern half, to the seller, there is no co-
ownership between them over the parcel of land although
their respective portions are not technically described, or
said portions are still embraced in one and the same
certificate of title. (De La Cruz v. Cruz, 32 SCRA 307 [1970];
Si v. Court of Appeals, 135 SCAD 754, 342 SCRA 653
[2000]; see Salatandol v. Retes, 162 SCRA 568 [1988]) It
does not make said portions less determinable or
identifiable or distinguishable, one from the other, nor that
dominion over each portion less exclusive, in their
respective owners. (Heirs of M. Cabal v. Spouses L. and R.
Cabal, G.R. No. 153625, July 31, 2006)
(2) Similarly, where the son who built his house on
the disputed lot in 1949 with the consent of his father, has
been in possession of the lot since then with the knowledge
of his co-heirs, such even before his father died in 1954,
when the co-ownership was created, his inheritance or
share in the co-ownership was already particularly
designated or physically segregated, it was held: “x x x it
would have been just and equitable to have segregated said
portion in his favor and not one adjacent to it,’’ as the son’s
share in the inheritance. (Ibid)
Si v. CA, 2000
The lot in question had already been partitioned
when their parents executed three (3) deed of sales
(sic) in favor of Jose, Crisostomo and Severo, all
surnamed Armada (Exh. 1, 2, & 3), which
documents purports to have been registered with
the Register of Deeds of Pasay City, on September
18, 1970, and as a consequence TCT No. 16007
(Exh. A) was issued. Notably, every portion
conveyed and transferred to the three sons was
definitely described and segregated and with the
corresponding technical description (sic). In short,
this is what we call extrajudicial partition.
The fact that the three portions are embraced in
one certificate of title does not make said portions
less determinable or identifiable or distinguishable,
one from the other, nor that dominion over each
portion less exclusive, in their respective owners.
Hence, no right of redemption among co-owners
exists."
Heirs of M. Cabal v. Spouses L. and R. Cabal, 2006
Elementary is the rule that there is no co-
ownership where the portion owned is concretely
determined and identifiable, though not
technically described, or that said portion is still
embraced in one and the same certificate of title
does make said portion less determinable or
identifiable, or distinguishable, one from the other,
nor that dominion over each portion less exclusive,
in their respective owners.
Thus, since Marcelino built a house and has been
occupying the disputed portion since 1949, with
the consent of his father and knowledge of the co-
heirs, it would have been just and equitable to have
 segregated said portion in his favor and not one
adjacent to it.
e. Sources of Co-ownership
Co-ownership may be created by any of the following
causes:
(1) By contract (Art. 494, par. 2; Art. 1775.2), such
as when two persons shared in paying the purchase price of
a parcel of land with the agreement to divide the land
equally between them (Gallemit v. Tabiliran, 20 Phil. 241
[1911]) Two persons having a common interest in a business
are co-owners thereof when no partnership is formed
between them (Sarah v. Lopez, 5 Phil. 78 [1906]; Strachan E
& C Murray v. Emaldi, 22 Phil. 295 [1912].);
(2) By law, such as in easement of party walls (Art.
658.); absolute community of property between spouses
(Arts. 88, 90, Family Code.), etc
(3) By succession, as in the case of heirs of
undivided property before partition. (Javier v. Javier, 6 Phil.
495 [1906]) Where some of the co-owners of a property die,
the heirs of those who die become co-owners of the
property together with those who survive (Alcala v. Alcala,
35 Phil. 679 [1916]; Cid v. Peralta, 24 Phil. 142 [1913].);
(4) By testamentary disposition or donation inter
vivos, such as in the case where the testator or donor
prohibits partition of the property for a certain period of
time (see Art. 494, par. 3.);
(5) By fortuitous event or by chance, such as in
cases of commixtion or confusion which takes place by
accident (Art. 472) and discovery of hidden treasure (Art.
438.); and
(6) By occupancy, such as when two persons catch
a wild animal or fish in the open sea, or gather forest
products. (Art. 712.) However, when there is an express or
implied agreement between them, the co-ownership may
be said to arise from contract (see Punsalan v. Boon Liat, 44
Phil. 320 [1923].), but the ownership is acquired by
occupation.
f. Co-ownership v. Partnership
Since co-ownership may be confused with partnership, it is
useful to distinguish one from the other. They differ as
follows.
(1) Creation. — Co-ownership may be created
without the formalities of a contract, while partnership
(except conjugal partnership) can be created only by
contract, express or implied;
(2) Personality. — Co-ownership has no juridical
or legal personality, while in partnership, such juridical
personality distinct from the partners exists;
(3) Purpose. — In co-ownership, the purpose is the
collective enjoyment of the thing (or right), while in
partnership, it is to obtain profits;
(4) Disposal of share. — A co-owner can dispose of
his share without the consent of the others with the
transferee automatically becoming a co-owner, while a
partner, unless authorized, cannot do so and substitute
another as a partner in his place;
(5) Mutual agency. — In co-ownership, there is
generally no mutual representation, while in partnership, a
partner can generally bind the partnership;
(6) Distribution of profits. — In co-ownership, the
distribution of profits must be proportional to the respective
interests of the co-owners, while in partnership, the
distribution of profits is subject to the stipulation of the
partners;
(7) Effect of death or incapacity. — A co-
ownership is not dissolved by the death or incapacity of a
co-owner, but such fact dissolves a partnership; and
(8) Duration. — In co-ownership, an agreement to
keep the thing undivided for a period of more than ten
years (although it may be extended by a new agreement) is
void, while in partnership, there may be agreement as to
any definite term without limit set by law.
g. Co-ownership v. Easement
The distinctions are:
(1) In co-ownership, there is in each co-owner a
right of dominion over the whole property and over his
undivided share, whereas easement is precisely a limitation
on the right of dominion; and
(2) In co-ownership, the right of ownership rests
solely on each and every co-owner over a single object,
while in easement, the right of dominion is in favor of one
or more persons and over two or more different things. (see
3 Manresa 392)
h. Share of Co-owners in benefits and charges (Art. 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. (393a)
NOTES: As provided above, it shall be proportional
to the respective interests of each. Thus, if one’s interest in
the co-ownership is 1/4, his share in the benefits as well as
in the charges is also 1/4. The accretion added to any
portion of land owned in common shall benefit the co-
owners in the same proportion; if it suffers diminution, they
shall have to share, too, the same in accordance with their
interests. (Tarnate v. Tarnate, [C.A.] 46 O.G. 4397)
The interests of the co-owners are presumed equal
unless the contrary is proved.
Any stipulation in a contract making the share in
the benefits or charges disproportional to the respective
interests of the co-owners is declared void because such a
stipulation is contrary to the essence of a co-ownership.
Note, however, that Article 485 speaks of
“stipulation in a contract.’’ Therefore, if the co-ownership is
created other than by a contract, such as by will or by
donation, the share of the co-owners need not be
proportionate to their respective interests. There is no
reason, for example, why the testator or donor cannot
provide for rules to govern to a certain extent a co-
ownership created by him.
1. Necessary Expenses (Art. 488)
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. Anyone 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. (395a)
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.
(n)
NOTES: The expenses of preservation of the thing
or right owned in common and the amount of taxes
due thereon should be borne by all. Hence, a co-
owner who advanced them has a right to demand
reimbursement from the others in proportion to
their respective interests in the co-ownership.
(1) Article 488 refers only to necessary
expenses (see Art. 546.) such as those incurred for
repair of a building in a ruinous condition
(Trinidad v. Ricafort, 7 Phil. 449 [1907]) and to
preserve the rights of joint owners to mining claims
(Hibberd v. Estate of McElroy, 25 Phil. 164 [1913])
Taxes on the thing owned in common are to be
considered as necessary expenses because if they
are not paid, the property may be sold for tax
delinquency or forfeited to the government.
(2) Useful expenses (Arts. 546, 547.), even
if the value of the community party is thereby
increased, are not covered, the purpose of a co-
ownership not being for profit, unless such
expenses were incurred with the consent of the
others.
(3) Expenses for pure luxury or mere
pleasure (Art. 548.) are not also refundable not
being for preservation.
The law, however, requires that the co-owner
must, if practicable, first notify the co-owners of
the necessity for the repairs. The absence of this
requirement would open the door to bad faith or
fraud. If impracticable or where the repairs are
very urgent and the other co-owners are in remote
places and cannot be reached by ordinary means of
communication, the notice may be dispensed with.
(I Capistrano, op. cit., p. 446)
The lack of notice, even if practicable, would not
exempt the other co-owners from the obligation to
contribute to the expenses. But the co-owner who
advanced them has the burden of proving that they
were properly incurred.
2. Renunciation by a Co-owner of his Share
(1) Renunciation need not be total. —
Under the former provision, a co-owner may
exempt himself from the payment of expenses of
preservation by renouncing his entire interest in
the co-ownership. This was considered extremely
unjust or too severe.
For example: “The share of a co-owner in the
expenses of preservation is P1,000, but his
undivided interest in the co-owner-ship is P50,000.
Why should he be required to renounce P50,000 in
order to pay his contribution of P1,000? Therefore,
the new Code requires that he shall renounce only
so much of his undivided interest as may be
equivalent to his share of the expenses and taxes.’’
(Memorandum of the Code Commission to the
Joint Congressional Committee on Codification,
Feb. 17, 1951)
Under Article 488, the co-owner need only
renounce or give up in favor of the other co-
owners so much of his undivided share as may be
equivalent to his share of expenses and taxes.
Thus, where the interests of co-owners A, B, and C
are 3/6, 2/6, and 1/6, respectively, and the expenses
and taxes advanced by A amount to P30,000, their
shares shall be: A-P15,000; B-P10,000, and C-
P5,000. B may exempt himself from contributing
his share by renouncing P10,000 of his 2/6 interest
in the co-ownership. If his interest is P100,000, he
must renounce 1/10 thereof. The share of B shall
accrue to A and C proportionately because they
bear the expenses proportionately. On the basis of
their interest of 3/6 and 1/6, the proportion is 3/1
or P7,500: P2,500.
(2) Nature of the renunciation. — The
renunciation is in reality a case of dacion en pago
involving expenses and taxes already paid. Since
the “renunciation’’ (in favor of the co-owners)
constitutes a novation by change of the object of
the obligation (i.e., sum of money to interest in the
co-ownership), the consent of the other co-owners
is necessary. If the creditor has not yet been paid,
the “renunciation’’ cannot be made without his
consent (Art 1293) for this would be a case of
novation by substitution of debtor. Such consent is
also required where the renunciation is in favor of
the creditor, being a case of dacion en pago. In fine,
a renunciation is not a unilateral act which will
extinguish an existing liability of a co-owner
without formal acceptance by the other co-owners
or by the creditor.
 (3) Renunciation, a free act. — The failure
or refusal of a co-owner to contribute pro rata his
share of the expenses is not tantamount to a
renunciation. A co-owner who has not waived his
share in the co-ownership may be compelled (by
an action in court) to pay his share in the cost of its
maintenance. He may not be compelled to
renounce.
(4) When renunciation not allowed. —
The right of a co-owner to renounce his share in
the co-ownership, while voluntary, is not absolute.
Waiver is not allowed if it is prejudicial to the co-
ownership. Thus, a co-owner having the means
cannot renounce to exempt himself from the duty
to contribute for the repair of a ruinous building in
danger of falling. The other owners can proceed to
have the building repaired and the former would
still be liable despite of his renunciation. Legally
speaking, there is no renunciation.
i. Limitation on Co-owner’s right to use (Art. 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. (394a)
NOTES: The above provision limits the right of each co-
owner to make use of the thing owned in common. Each
co-owner may use the thing owned in common provided he
does so:
(1) In accordance with the purpose for which the
co-ownership is intended. — To determine said purpose,
resort must be had to the agreement, express or implied, of
the co-owners, and in the absence thereof, it is to be
understood that the thing is intended for that use for which
it is ordinarily adapted according to its nature. If a thing has
been previously used for a particular purpose, it is presumed
that such is the purpose intended by the parties. (3 Manresa
440-441)
The co-owners are free to change the purpose of the co-
ownership by agreement, express or implied. (2nd sentence)
Consequently, in the absence of agreement, express or
implied, mere tolerance on the part of the co-owners
cannot be invoked by a co-owner to legalize a change in the
use of the thing owned in common according to the purpose
for which it is intended; neither can prescription be
invoked by a co-owner to establish a right to such different
use because prescription cannot be based on acts of mere
tolerance by the other co-owners (3 Manresa 443.);
(2) In such a way as not to injure the interest of the
co-ownership — This limitation and the first are established
in the interest of the co-ownership itself. Using the
community property for a different purpose, or for the
exclusive benefit of a co-owner (such as using an apartment
house as a dwelling place without paying rent), or in a
destructive way, prejudices the interest of the co-
ownership, and ultimately those of the other co-owners.
But until a division be made of the pro-indiviso property,
the respective part belonging to each co-owner cannot be
determined, and every one exercises, together with the
others, joint dominion over the property and is entitled to
the joint use and enjoyment of the same (Pardell v.
Bartolome, 23 Phil. 450 [1912].); and
(3) In such a way as not to prevent the other co-
owners from using it according to their rights. — The right
of use by a co-owner is limited by the similar right of the
other co-owners. The co-ownership exists for the common
enjoyment and use of the property owned in common. A
co-owner may use and enjoy the same without limitations,
except that it be for the purpose for which it is intended
and that he must not prejudice the rights of the other co-
owners. So that no co-owner may be prevented from using
the thing in accordance with their rights, the co-owners
may establish rules on the matter, which will be binding on
all. In default thereof, there should be a just and equitable
distribution of uses among all the co-owners. (3 Manresa
441-442)
In a co-ownership, the act of one benefits all the co-owners,
unless the former repudiates the co-ownership. Thus, if a
co-owner prevails in a case for reconveyance, it will also
redound to the benefit of the other co-owners. (Phil.
National Bank v. Heirs of E. and D. Militar, 467 SCRA 377
[2005])
j. Ejectment
Art. 487. Anyone of the co-owners may bring an action in
ejectment. (n)
NOTES:
(1) By anyone of the co-owners. — Article 487
authorizes any co-owner to bring, in behalf of himself, and
the other co-owners, an action in ejectment affecting the
co-ownership. It changes the ruling laid down in the case of
Palanca v. Baguisi (38 Phil. 177 [1918].) which held that a
co-owner cannot maintain such action without the other
co-owners joining as co-plaintiffs. An action for ejectment
under Article 487 covers all kinds of actions for the
recovery of property. It includes a suit of forcible entry or
unlawful detainer, recovery of possession, and recovery of
ownership without the necessity of joining all the other co-
owners as co- plaintiffs, because the suit is deemed to be
instituted for the benefit of all. It follows that an attorney-
in-fact of the plaintiff co-owner does not need authority
from all the co-owners. (Sering v. Plazo, 166 SCRA 85
[1988]; Vencilao v. Camarento, 29 SCRA 473 [1969];
Adlawan v. Adlawan, 479 SCRA 275 [2006]; Mendoza v.
Coronel, 482 SCRA 353 [2006])
The new rule is justified by the consideration that, in a
sense, a co-owner is owner of the whole and over the whole
he exercises rights of dominion. (see Tarnate v. Tarnate,
supra.) As the action is supposed to be brought by a co-
owner (especially if he is the administrator of the thing) for
the benefit of all, he does not, if the suit involves only his
own interest. Thus, where the suit is for the benefit of
plaintiff alone who claims to be the sole owner and entitled
to the possession of the litigated property, and not for the
co-ownership, the action should be dismissed (Adlawan v.
Adlawan, Ibid.)
It has been held, however, that while Article 487 now
allows a suit by a co-owner, all the co-owners are necessary
and proper parties. By the same token, it is logical that a
tenant, in order to establish his status as such, must implead
all the pro indiviso co-owners. Were the courts to permit
an action in ejectment to be maintained by a person having
merely an undivided interest, a judgment in favor of the
defendant would not be conclusive against the other co-
owners not parties to the suit. The purpose of the rule is to
prevent multiplicity of suits. (Arcelona v. Court of Appeals,
87 SCAD 539, 280 SCRA 20 [1997])
(2) Against strangers or a co-owner. — The action
may be brought not only against strangers but even against
a co-owner in a proper case. It contemplates all actions for
the recovery of possession and ownership including actions
to quiet title.
The only purpose of an action against a co-owner who takes
exclusive possession and asserts exclusive ownership of the
property is to obtain recognition of the co-ownership. The
plaintiff cannot seek exclusion of the defendant from the
property because as co-owner he has a right of possession.
The plaintiff cannot recover any material or determinate
part of the property. (De Guia v. Court of Appeals, 413
SCRA 114 [2003])
(3) Binding effect of adverse decision. — An
adverse decision in the action is not necessarily res judicata
with respect to the other co-owners not being parties to the
action (there is no mutual representation between the co-
owners) but they are bound where it appears that the action
was instituted in their behalf with their express or implied
consent, or where their rights in the co-ownership are
derived from the title of their predecessors in interest found
by the court to be invalid or inexistent. Thus, where the
deceased father was not the owner of the land inherited, the
children cannot be considered as co-heirs or co-owners. (see
Santiago v. J.M. Tuazon & Co., Inc., 110 Phil. 16 [1960]; see
Resuena v. Court of Appeals, 454 SCRA 42 [2005])
(4) Where co-ownership deemed terminated. — In
a case, petitioner co-owner filed an action to compel the
sale of the property owned in common under Article 498. It
was held: “Since petitioner has decided to enforce his right
in court to end the co-ownership of the house and lot, and
respondent has not refuted the allegation that he has been
preventing the sale of the property by his continued
occupancy of the premises, justice and equity demand that
respondent and his family vacate the property so that the
sale can be effected immediately. In fairness to petitioner,
respondent should pay rental of P1,200.00 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 the
property belonging to petitioner.
When petitioner filed an action to compel the sale of the
property, and the trial court granted the petition, 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.’’
(Aguilar v. Court of Appeals, 45 SCAD 564, 227 SCRA 472
[1993])
Navarro v. Escobido, 2009
Glenn and Karen Go are effectively co-owners of
Kargo Enterprises and the properties registered
under this name; hence, both have an equal right
to seek possession of these properties. Applying
Article 484 of the Civil Code, which states that "in
default of contracts, or special provisions, co-
ownership shall be governed by the provisions of
this Title", we find further support in Article 487 of
the Civil Code that allows any of the co-owners to
bring an action in ejectment with respect to the co-
owned property.
Plasabas v. CA, 2009
Article 487 of the Civil Code provides that any one
of the co-owners may bring an action for
ejectment. The article covers all kinds of actions for
the recovery of possession, including an accion
publiciana and a reivindicatory action. A co-owner
may file suit without necessarily joining all the
other co-owners as co-plaintiffs because the suit is
deemed to be instituted for the benefit of all. Any
judgment of the court in favor of the plaintiff will
benefit the other co-owners, but if the judgment is
adverse, the same cannot prejudice the rights of the
unimpleaded co-owners.
Adlawan v. Adlawan, 2006
A co-owner may bring such an action without the
necessity of joining all the other co-owners as co-
plaintiffs because the suit is presumed to have been
filed to benefit his co-owners. It should be stressed,
however, that where the suit is for the benefit of
the plaintiff alone who claims to be the sole owner
and entitled to the possession of the litigated
property, the action should be dismissed
De Guia v. CA, 2003
We rule that a co-owner may file an action for
recovery of possession against a co-owner who
takes exclusive possession of the entire co-owned
property. However, the only effect of such action is
a recognition of the co-ownership. The courts
cannot proceed with the actual partitioning of the
co-owned property. Thus, judicial or extra-judicial
partition is necessary to effect physical division of
the FISHPOND between ABEJO and DE GUIA. An
action for partition is also the proper forum for
accounting the profits received by DE GUIA from
the FISHPOND. However, as a necessary
consequence of such recognition, ABEJO shall
exercise an equal right to possess, use and enjoy the
entire FISHPOND.
k. Different Stories of a House belonging to Different
Owners
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:
(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.
(396)
NOTES: The rules provided above govern the manner the
different owners of different stories of a house shall
contribute to the necessary expenses for the preservation or
maintenance of the house.
They apply if the titles of ownership do not specify the
terms hereof or there exists no agreement on the subject.
Article 489 deals with a form of co-ownership, and not a
division. Although there are apparently separate and
distinct properties, these are indestructively united for their
ornamentation and use and even for their very existence
with other necessary and essential things which are the
main and party walls, the roof and other things used in
common. (I Capistrano, op. cit., pp. 446- 447)
The above form of ownership must be distinguished from a
condominium which is a building consisting of several
stories, each story being divided into different units owned
by different persons who are members or shareholders of a
condominium corporation which may be formed to hold
title to the common areas and to the management of the
project. (see infra.)
l. Alterations of a Co-owned Property
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.
(397a)
1. Definition of Alteration
Meaning of alteration — The term has a technical meaning
and does not include any change in the common property.
It contemplates a change made by a co-owner in the thing
owned in common which involves:
(a) Change of the thing from the state or essence in
which the others believe it should remain; or
(b) Withdrawal of the thing from the use to which
they wish it to be intended; or
(c) Any other transformation which prejudices the
condition or substance of the thing or its
enjoyment by the others. (see 3 Manresa 465-466.)
Any act of ownership included. — Alteration, as
contemplated by law, is not limited to material or physical
changes, such as the construction of a house on a land
owned in common (Javier v. Javier, 6 Phil. 473 [1906].),
conversion of agricultural land into a residential subdivision
or memorial park, addition of another story to a building,
etc., but includes any act of ownership by which a real right
or encumbrance is imposed on the common property, such
as servitude, registered lease (see Arts. 1647, 1648.), lease of
real property for more than one year (see Art. 1878[8].),
mortgage, or pledge.
Alienation of the thing by sale or donation of the property
is an act of strict dominion. But a co-owner may alienate,
assign, mortgage and even substitute another person in the
enjoyment of his undivided interest in the property (except
when personal rights are involved) because he has full
ownership over it. (Art. 493.) The alteration may be
prejudicial or beneficial to the co-ownership, and may have
been made in opposition to the express or tacit common
agreement, or in accordance with such agreement, or with
the consent of the other co-owners.
2. Necessity of Consent, Form
Reason for requiring consent of other co-owners — The
unanimous consent of all the co-owners, not a mere
majority (see Art. 92.) is necessary even if the alteration
would prove beneficial because alteration is an act of
ownership and not of mere administration. A sole owner
may change, modify, or transform in any way he pleases
what belongs to him but it is obvious that a co-owner
cannot deal with the thing or right owned in common at
will and invade the proprietary rights of the other co-
owners.
Form of consent — For the purpose of making legal the
alteration of the object of the co-ownership, express consent
of the other co-owners is not essential; implied consent
(e.g., alteration was made with the knowledge of the other
co-owners who did not interpose any objection) is
sufficient. The other co-owners having tacitly consented to
the alteration which was in their power to prevent cannot
subsequently demand its demolition. However, it has been
held that the co-owner who made the alteration would
have no action against the others for their share of the
expenses. Such consent must be express, not presumed, to
entitle recovery and the burden is upon the co-owner
seeking reimbursement to prove that such consent was
given. (Javier v. Javier, supra; 3 Manresa 469-470)
If consent can be shown even if merely tacit, there seems to
be no reason why the other co-owner should not share in
the expenses. There is still consent. Article 491 does not
expressly require express consent.
3. Liability
Liability for alteration — The co-owner who makes such
alteration without the express or implied consent of the
other co-owners acts in bad faith because he does so as if he
were the sole owner.
As a just punishment for his conduct he should:
(a) Lose what he has spent,
(b) Be obliged to demolish the improvements done,
and
(c) Be liable to pay for losses and damages the
community property or the other co-owners may
have suffered.
Of course, whatever is beneficial or useful to the co-
ownership shall belong to it. (see 3 Manresa 468-472.)
The other co-owners having tacitly consented to the
alteration which was in their power to prevent cannot
subsequently demand its demolition. However, it has been
held that the co-owner who made the alteration would
have no action against the others for their share of the
expenses. Such consent must be express, not presumed, to
entitle recovery and the burden is upon the co-owner
seeking reimbursement to prove that such consent was
given. (Javier v. Javier, supra; 3 Manresa 469-470)
If consent can be shown even if merely tacit, there seems to
be no reason why the other co-owner should not share in
the expenses. There is still consent. Article 491 does not
expressly require express consent.
m. Acts of Administration and Better Enjoyment
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 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 provisions shall apply only to the part owned in
common. (398)
1. Meaning
Meaning of acts of administration and better enjoyment —
Article 492 refers to acts “for the administration and better
enjoyment’’ or acts of management of the common
property. They contemplate acts or decisions for the
common benefit of all the co-owners and not for the benefit
of only one or some of them.
It is an inherent and peculiar feature of co-ownership that
although the co-owners may have unequal shares in the
common property, quantitatively speaking, each co-owner
has the same right, in a qualitative sense, as any of the
others. This is implicit from the provisions of Article 486.
(Singson v. Veloso, [CA] 32 OG 870)
2. Vs. Alteration
Distinguished from alteration — While alteration is more
or less permanent, acts of administration have transitory
effects (i.e., not of long duration which, of course, is a
question of fact) and have for their purpose the
preservation, preparation and better enjoyment of the thing
and which do not affect its essence, nature or substance. (2
Castan 200-203.)
3. Examples
Examples of acts of administration are unregistered lease of
one year or less (see Art. 1878[8]; also Enriquez v. A.S.
Watson & Co., 22 Phil. 624 [1912]; Melencio v. Dy Tiao
Lay, 55 Phil. 99 [1930].); appointment of an administrator to
manage the property (Alcala v. Pabalan, 19 Phil. 521
[1911].); engaging the services of a lawyer to preserve the
ownership and possession of the property (see Government
v. Wagner, 54 Phil. 132 [1929].); payment made in the
ordinary course of management (Art. 1878[1].), etc.
4. Majority Rule
Majority rule prevails. — The majority consists of co-
owners who represent the controlling interests (i.e., at least
51% of the financial interest) in the object of the co-
ownership. The majority likewise decides the expenses to
improve or embellish the common property. Notice must
first be given to the minority unless it is impracticable to do
so. (see Art. 489.)
n. Rights of a Co-owner (Art. 493 and 494)
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. (399)
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. (400a)
 1. Nature of Right of co-owner before
partition
(1) Under Article 493. — They are the following:
(a) He shall have full ownership of his part, that is,
his undivided interest or share in the common
property;
(b) He shall have full ownership of the fruits and
benefits pertaining thereto;
(c) He may alienate, assign or mortgage his ideal
interest or share independently of the other co-
owners; and
(d) He may even substitute another person in the
enjoyment of his part, except when personal rights
are involved.
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. (Engreso v. De
La Cruz, 401 SCRA 217 [2003]) A vendee with knowledge
that the subject property was, at one time, co-owned by the
vendor and other persons, relying on the vendor’s word
alone that he was the sole owner of the property, cannot
rightfully claim that he is a buyer in good faith. The
honesty of intention that constitutes good faith implies
freedom from knowledge of circumstances that ought to put
a prudent person on inquiry. (Aromin v. Floresca, G.R. No.
160994, July 27, 2006.)
(2) Legal rights of redemption. — A co-owner is given the
legal right of redemption in case the shares of all the other
co-owners or any of them are sold to a third person. The
share of a co-owner may be attached. (Cadag v. Trinanes,
[C.A.] 40 O.G., 4th Supp. [No. 8], p. 324) Redemption by a
co-owner does not terminate the co-ownership nor give
him title to the entire property subject of the co-ownership.
(Cruz v. Leis, 122 SCAD 693, 327 SCRA 570 [2000])
(3) Renunciation of interest. — A co-owner may exempt
himself from the obligation to contribute to the expenses of
preservation of the thing or right owned in common and to
the taxes by renouncing so much of his interest as may be
equivalent to his share of the expenses and taxes. (Art. 488;
see Arts. 485, 486, 492, 494)
Where personal rights are involved
A co-owner may substitute another in the enjoyment of his
undivided interest in the co-ownership except when
personal rights are involved.
The term “personal right’’ is used in Article 493 in its real
meaning and not in its legal or technical sense as the
opposite of real right. It means a right which cannot be
transferred because it affects the personal relations of the
co-owners with one another. Thus, in the co-ownership of a
house belonging to the children of the deceased owner and
used by them as family residence, a co-owner should not be
allowed without the consent of the others, to substitute a
complete stranger in the common use of the house.
A co-owner may lose his personal right to others, as by
prescription thereof by a co-owner. (Consignado v. Court of
Appeals, 207 SCRA 297 [1992]; Gapacan v. Omipet, G.R.
No. 148943, Aug. 15, 2002)
Bailon-Casilao v. CA, 1988
From the foregoing, it may be deduced that since a co-
owner is entitled to sell his undivided share, a sale of the
entire property by one co-owner without the consent of the
other co-owners is not null and void. However, only the
rights of the co-owner-seller are transferred, thereby
making the buyer a co-owner of the property
Thus, 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
undivided shares of some of the co-owners is an action for
PARTITION under Rule 69 of the Revised Rules of Court.
Neither recovery of possession nor restitution can be
granted since the defendant buyers are legitimate
proprietors and possessors in joint ownership of the
common property claimed [Ramirez v. Bautista, supra].
Pamplona v. Moreto, 1980
Petitioners point to the fact that spouses Flaviano Moreto
and Monica Maniega owned three parcels of land
denominated as Lot 1495 having an area of 781 sq. meters,
Lot 1496 with an area of 1,021 sq. meters, and Lot 4545
with an area of 544 sq. meters. The three lots have a total
area of 2,346 sq. meters. Henc, Flaviano Moreto was
entitled to one-half pro-indiviso of the entire land area or
1,173 sq. meters as his share, he had a perfect legal and
lawful right to dispose of 781 sq. meters of his share to the
Pamplona spouses. Indeed, there was still a remainder of
some 392 sq. meters belonging to him at the time of the
sale.
The title may be pro-indiviso or inchoate but the moment
the co-owner as vendor pointed out its location and even
indicated the boundaries over which the fences were to be
erected without objection, protest or complaint by the other
co-owners, on the contrary they acquiesced and tolerated
such alienation, occupation and possession, We rule that a
factual partition or termination of the co-ownership,
although partial, was created, and barred not only the
vendor, Flaviano Moreto, but also his heirs, the private
respondents herein from asserting as against the vendees-
petitioners any right or title in derogation of the deed of
sale executed by said vendor Flaviano Moreto.
Del Campo v. CA, 2001
We are aware of the principle that a co-owner cannot
rightfully dispose of a particular portion of a co-owned
property prior to partition among all the co-owners.
However, this should not signify that the vendee does not
acquire anything at all in case a physically segregated area
of the co-owned lot is in fact sold to him.
In the case of Vda. de Cabrera vs. Court of Appeals, we had
occasion to hold that where the transferees of an undivided
portion of the land allowed a co-owner of the property to
occupy a definite portion thereof and had not disturbed the
same for a period too long to be ignored, the possessor is in
a better condition or right than said transferees. (Potior est
condition possidentis). Such undisturbed possession had the
effect of a partial partition of the co-owned property which
entitles the possessor to the definite portion which he
occupies. Conformably, petitioners are entitled to the
disputed land, having enjoyed uninterrupted possession
thereof for a total of 49 years up to the present.
2. Right to Demand Partition
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. (400a)
i. Partition
Partition is the division between two or more persons of
real or personal property which they own in common so
that each may enjoy and possess his sole estate to the
exclusion of and without interference from the others.
The policy of the law is not to favor co-ownership because
it is not conducive to the development of the community
property particularly where it involves real estate. Article
494 grants to each co-owner the right to demand at any
time partition of the thing owned in common, insofar as his
share is concerned for “no co-owner shall be obliged to
remain in the co-ownership.’’
This implies that the action to demand partition is
imprescriptible or cannot be barred by laches, absent a clear
repudiation of the co-ownership by a co-owner clearly
communicated to the other co-owners. (Del Banco v.
Intermediate Appellate Court)
Cruz v. Cristobal, 2006
Since petitioners were not able to participate in the
execution of the Deed of Partition, which constitutes as an
extrajudicial settlement of the estate of the late
Buenaventura Cristobal by private respondents, such
settlement is not binding on them. As the extrajudicial
settlement executed by the private respondents in February
1948 did not affect the right of petitioners to also inherit
from the estate of their deceased father, it was incorrect for
the trial and appellate court to hold that petitioners' right to
challenge the said settlement had prescribed.
Monteroso v. CA, 2008
Acquisitive prescription may set in in favor of a co-owner,
"where there exists a clear repudiation of the co-ownership,
and the co-owners are apprised of the claim of adverse and
exclusive ownership." In the instant case, however, no
extinctive or acquisitive prescription has set in against Tirso
and other compulsory heirs in favor of the Cagampang
spouses because effective repudiation had not timely been
made against the former. As aptly put by the appellate
court, the repudiation which must be clear and open as to
amount to an express disavowal of the co-ownership
relation happened not when the deeds of absolute sale were
executed in 1939, as these could not have amounted to a
clear notice to the other heirs, but in 1961 when the
Cagampang spouses refused upon written demand by Tirso
for the partition and distribution of the intestate estate of
Don Fabian. Since then, Tirso was deemed apprised of the
repudiation by the Cagampang spouses.
The records show that Tirso's cause of action has not
prescribed as he instituted an action for partition in 1970 or
only nine years after the considered express repudiation.
Besides, acquisitive prescription also does not lie against
Tirso even if we consider that a valid express repudiation
was indeed made in 1961 by the Cagampang spouses since
in the presence of evident bad faith, the required
extraordinary prescription period of 30 years has not yet
lapsed, counted from said considered repudiation. Such
would still be true even if the period is counted from the
time of the death of Don Fabian when the Cagampang
spouses took exclusive possession of the subject properties.
ii. Exceptions
The right to demand partition finds exceptions in the
following:
(1) When the co-owners have agreed to keep the
thing undivided for a certain period of time, not
exceeding ten years;
(2) When the partition is prohibited by the donor
or testator for a certain period not exceeding
twenty years;
(3) When the partition is prohibited by law (Art.
494.);
(4) When partition would render the thing
unserviceable for the use for which it is intended
(Art. 495.); and
(5) When another co-owner has possessed the
property as exclusive owner and for a period
sufficient to acquire it by prescription.
With regard:
1. To No. (1), the term may extend for as many
times as the co-owners may stipulate provided that
each extension does not exceed ten years;
2. To No. (2), the wish of the donor or testator
should be respected but as it is against public policy
to allow property to remain undivided for all time,
a maximum period of twenty years is provided,
which period is deemed sufficient for the
fulfillment of the particular reasons of the donor or
testator;
3. To No. (3), there are cases of co-ownership
created by law, such as the community or conjugal
property of the husband and wife, family home,
and party walls and fences, where by reason of
their origin or juridical nature, partition is
prohibited by law (I Capistrano, op. cit., p. 453.);
and
 4. To No. (4), the co-ownership may be terminated
in accordance with Article 498.
Where the period stipulated for indivision exceeds ten
years, the stipulation is void only insofar as the excess is
concerned. If the co-ownership is subject to a resolutory
condition, the co-ownership shall be terminated upon the
fulfillment of the condition before ten years, or at the end
of ten years notwithstanding the non-fulfillment of the
condition. An agreement to continue the co-ownership
within the period permitted by law may be rescinded by the
co-owners.
iii. Prescription
As a general rule, prescription does not run in favor of or
against a co-owner or co-heir. The reason is obvious. The
possession of the co-owner or co-heir is ordinarily not
adverse to the others but, in fact, beneficial to all of them.
He recognizes, expressly or impliedly, the co-ownership.
Thus, an action to compel partition may be filed at any time
by any of the co-owners against the actual possessor.
The positive mandate of Article 494 conferring
imprescriptibility to actions of a co-owner or co-heir against
his co-owners or co-heirs should preempt and prevail over
all abstract arguments based only on equity which should
be applied only in the absence of, and never against
statutory law. Acquisitive prescription as laches which is
based on the doctrine of equity, cannot be invoked to defeat
justice. It cannot be set up to resist the enforcement of an
imprescriptible legal right. (Generosa v. Prangan-Valera,
G.R. No. 166521, Aug. 31, 2006.)
Where, however, a co-owner or co-heir repudiates the co-
ownership or co-heirship, prescription begins to run from
the time of repudiation. Thus, the imprescriptibility of the
action to demand partition cannot be invoked when one of
the co-owners has claimed the property as exclusive owner
and possessed it for a period sufficient to acquire it by
prescription. (Del Val v. Del Val, 29 Phil. 534 [1915]; Jardin
v. Hallasgo, 117 SCRA 532 [1982]; Roque v. Intermediate
Appellate Court, 165 SCRA 118 [1988]; Vda. de Alberto v.
Court of Appeals, 173 SCRA 436 [1989]; Bicarme v. Court of
Appeals, 186 SCRA 294 [1990]) In such case, the question
involved is no longer one of mere partition but of
ownership, and in consequence thereof, the action is similar
to that of an action for the recovery of ownership of
property. (Africa v. Africa, 42 Phil. 902 [1922]; De Castro v.
Echarri, 20 Phil. 23 [1911]; Sebial v. Sebial, 64 SCRA 385
[1975]; Bargayo v. Camumot, 40 Phil. 857 [1920]; Pangan v.
Court of Appeals, 166 SCRA 375 [1988]) There must,
however, be a clear repudiation of co-ownership.
A co-ownership is a form of a trust, with each owner being
a trustee for each other. A trust relation inheres in a co-
ownership. (Mallilin, Jr. v. Castillo, 127 SCAD 784, 333
SCRA 628 [2000]) As a general rule, no one of the co-
owners may acquire exclusive ownership of the common
property through prescription for possession by the trustee
alone is not deemed adverse to the rest (Castrillo v. Court of
Appeals, 10 SCRA 549 [1964]) because a co-owner is, after
all, entitled to the possession of the property.
In a co-ownership, the act of one benefits all the co-owners.
The only instance in which the possession of a trustee may
be deemed adverse to the cestui que trust is when the
former makes an open repudiation of the trust by
unequivocal acts made known to the latter.
It has been held that the trustee may claim title by
prescription founded on adverse possession, where it
appears that:
(1) He had performed unequivocal acts of
repudiation of the co-ownership amounting to an
ouster of the cestui que trust or the other co-
owners;
(2) Such positive acts of repudiation have been
made known to the cestui que trust or the other
co-owners;
(3) The evidence thereon is clear, complete and
conclusive in order to establish prescription
without any shadow of doubt; and
(4) His possession is open, continuous, exclusive,
and notorious. (Adille v. Court of Appeals, 157
SCRA 455 [1988]; Vda. de Arceo v. Court of
Appeals, 185 SCRA 489 [1990])
Vda. De Alberto v. CA,
1989
This Court has invariably ruled that insolvency proceedings
and settlement of a decedent's estate are both proceedings
in rem which are binding against the whole world. All
persons having interest in the subject matter involved,
whether they were notified or not, are equally bound
(Philippine Savings Bank vs. Lantin, 124 SCRA 483 [1983]).
The court acquires jurisdiction over all persons interested,
through the publication of the notice prescribed . . . and any
order that may be entered therein is binding against all of
them
While as a general rule the action for partition among co-
owners does not prescribe so long as the co-ownership is
expressly or impliedly recognized (Art. 494, Civil Code),
petitioners herein had never recognized respondent as a co-
owner or co-heir either expressly or impliedly.
Consequently, the rule on non-prescription of action for
partition of property owned in common (Art. 494) does not
apply to the case at bar.
Bicarme v. CA, 1990
Maria Bicarme disclaims the co-ownership by denying that
subject properties are the inherited properties. Other than
the tax declarations in her name, there is no written
evidence that these were acquired/purchased from Sps.
Placido Biduya and Margarita Bose. Payment of land taxes
does not constitute sufficient repudiation of the co-
ownership, as it is not an act adverse to Cristina's rights.
Moreover, Cristina, being a minor, until she claimed her
rights, was not even aware thereof. Neither did Maria make
known her repudiation to Cristina, because all along, Maria
presumed her to be dead. Her refusal to share with Cristina
the yearly profits stemmed from Cristina's failure to share
in the yearly taxes. Acquisitive prescription cannot
therefore apply in this case.
Pangan v. CA, 1988

We affirm the finding of the respondent court that there
was no adequate notice by the petitioners to the private
respondent of the rejection of her claim to her share in the
subject property. Noticeably absent here is a categorical
assertion by the petitioners of their exclusive right to the
entire property that barred her own claim of ownership of
one-half thereof nor is there any explanation as to why they
said she had no right to a share. If this trusting woman did
not immediately take legal action to protect her rights, it
was simply because of forbearance toward her nephews and
nieces, let alone the fact that there was really no casus belli
as yet that required her to act decisively. That legal
provocation arose only when the petitioners commenced
the registration proceedings in 1965, and it was from that
time she was required to act, as she did, to protect her
interests.
Fangonil-Herrera v.
Fangonil, 2007
The fact that it was petitioner's money that was used for the
repurchase of the properties does not make her the owner
thereof, in the absence of convincing proof that would
indicate such. At most, Petitioner can only be considered as
a creditor of the owners of parcel 6 and 7.
As to the issue of prescription, petitioner's possession of
parcels 6 and 7 did not ripen into sole and exclusive
ownership thereof. Mere silent possession by a co-owner;
his receipt of rents, fruits or profits from the property; his
erection of buildings and fences and the planting of trees
thereon; and the payment of land taxes cannot serve as
proofs of exclusive ownership, if it is not borne out by clear
and convincing evidence that he exercised acts of possession
which unequivocably constituted an ouster or deprivation
of the rights of the other co-owners.
We find that petitioner effected no clear and evident
repudiation of the co-ownership. Petitioner's only act of
repudiation of the co-ownership was when she refused to
honor the extrajudicial settlement in 1994.
Vda. de Arceo v. CA,
1990
The evidence for Virginia et al. do not persuade us that they
(through Jose) have acquired the lots by lapse of time. The
fact that in 1941, Jose wrested possession thereof, so we
hold, does not amount to adverse possession because as a co-
owner, he had the right of enjoyment, and his use thereof
can not by itself prejudice the light of his fellow co-owners.
The fact that he paid taxes thereon is not controlling either
because payment of real estate taxes does not necessarily
confer title upon a claimant. The fact finally that Virginia,
et al. had sought to extrajudicially divide the property is
nothing conclusive because there is no showing that they,
Virginia, et al. had made this known to Pedro, et al. Under
these circumstances, we cannot validly say that the lands
had devolved on Virginia, et al. by way of prescription,
iv. Repudiation
Acts which may be adverse to strangers may not be
sufficiently adverse to the cestui que trust or other co-
owners.
(1) A mere silent possession of the trustee unaccompanied
with acts amounting to an ouster of the cestui que trust
cannot be construed as an adverse possession. Mere receipt
of rents, fruits, or profits for the properties, planting of trees
thereon, and erecting fences and buildings adapted for the
cultivation of the land held in trust, are not equivalent to
unequivocal acts of ouster of the cestui que trust. Thus, the
sole fact of a co-owner having declared the lands in
question in his name for tax purposes nor the payment of
land taxes, constitutes no such unequivocal act of
repudiation amounting to an ouster of the other co-owner
and cannot constitute adverse possession as basis for title by
prescription. (Laguna v. Levantino, 71 Phil. 566 [1941];
Valdez v. Olargas, 51 SCRA 71 [1973]; see Guillen v. Court
of Appeals, 179 SCRA 789 [1989]; Bicarme v. Court of
Appeals, 186 SCRA 294 [1990]) In a case, however, where F,
one of the heirs took possession of the lot in question after
the death in 1935 of his father, tilling and cultivating the
land, introducing improvements, and enjoying the produce
thereof, while the other children never possessed the lot,
much less asserted their claim thereto until 1999 when they
filed the complaint for partition, it was held that the
statutory period of prescription commenced not in 1935 but
in 1960 when F, who had neither title nor good faith
secured a tax declaration in his name, the date when it can
be said he adversely claimed ownership of the lot and the
other children were also deemed to have been aware of the
adverse claim. (Heirs of F. Restar vs. Heirs of D.R. Cichon,
475 SCRA 731 [2005]; see Art. 1137)
(2) It has been held that when a co-owner of the property
in question executed a deed of partition and on the strength
thereof obtained the cancellation of the title in the name of
their predecessor and the issuance of a new one wherein he
appears as the new owner of the property, thereby in effect
denying or repudiating he ownership of the other co-
owners over their shares, the statute of limitations started to
run from such issuance for the purpose of the action
instituted by the latter seeking a declaration of the existence
of the co-ownership and of their rights thereunder.
As the certificate of title was notice to the whole world of
his exclusive title to the land, the issuance of the new title
constituted an open and clear repudiation of the trust or co-
ownership and the lapse of ten years of adverse possession
(see Art. 1134.) was sufficient to vest title in the co-owner
by prescription. (Delima v. Court of Appeals, 201 SCRA 641
[1991]) But mere refusal to accede to a partition without
specifying the grounds for such refusal, cannot be
considered as notice to the other co-owners of the
occupant’s claim of title in himself in repudiation of the co-
ownership. (Heirs of S. Maningding v. Court of Appeals, 85
SCAD 357, 276 SCRA 601 [1997])
While it is true that registration under the Torrens system is
constructive notice of title, the Torrens title does not
furnish shield for fraud. Thus, where one registered the
property in question in his name in fraud of his co-heirs,
prescription can only be deemed to have commenced from
the time the latter discovers the act of defraudation. (Adille
v. Court of Appeals, supra; Mariategui v. Court of Appeals,
205 SCRA 337 [1992])
(3) Below are examples of specific acts which are considered
as acts of repudiation:
(a) Filing by a trustee of an action in court against
the trustor to quiet title to property, or for recovery
of ownership thereof, held in possession by the
former, may constitute an act of repudiation of the
trust reposed on him by the latter.
(b) The issuance of the certificate of title would
constitute an open and clear repudiation of any
trust, and the lapse of more than 20 years, open and
adverse possession as owner would certainly suffice
to vest title by prescription.
(c) An action for the reconveyance of land based on
implied or constructive trust prescribes within 10
years and it is from the date of the issuance of such
title that the effective assertion of adverse title for
purposes of the statute of limitation is counted.
(d) The prescriptive period may only be counted
from the time petitioners repudiated the trust
relation in 1955 upon the filing of the complaint
for recovery of possession against private
respondents contained in their amended answer
wherein they asserted absolute ownership of the
disputed realty by reason of the continuous and
adverse possession of the same is well within the
10-year prescriptive period.
(e) There is clear repudiation of a trust when one
who is an apparent administrator of property
causes the cancellation of the title thereto in the
name of the apparent beneficiaries and gets a new
certificate of title in his own name.
(f) It is only when the defendants, alleged co-
owners of the property in question, executed a
deed of partition and on the strength thereof
obtained the cancellation of the title in the name of
their predecessor and the issuance of a new one
wherein they appear as the new owners of a
definite area each, thereby in effect denying or
repudiating the ownership of one of the plaintiffs
over his alleged share in the entire lot, that the
statute of limitations started to run for the purposes
of the action instituted by the latter seeking a
declaration of the existence of the co-ownership
and of their rights thereunder. (Pañgan v. Court of
Appeals, 166 SCRA 375 [1988]; Salvador v. Court of
Appeals, 60 SCAD 303, 243 SCRA 239 [1995])
Heirs of J. Reyes v. Reyes,
2010
When Alejandro redeemed the property on August 11,
1970, he did not thereby become a co-owner thereof.
Alejandro merely became the assignee of the mortgage, and
the property continued to be co-owned by Leoncia and her
sons Jose, Sr., Jose Jr., and Teofilo. As an assignee of the
mortgage and the mortgage credit, Alejandro acquired only
the rights of his assignors, nothing more.
The concurrence of the foregoing elements was not
established herein. For one, Alejandro did not have adverse
and exclusive possession of the property, as, in fact, the
other co-owners had continued to possess it, with Alejandro
and his heirs occupying only a portion of it. Neither did the
cancellation of the previous tax declarations in the name of
Leoncia, the previous co-owner, and the issuance of a new
one in Alejandro's name, and Alejandro's payment of the
realty taxes constitute repudiation of the co-ownership. The
sole fact of a co-owner declaring the land in question in his
name for taxation purposes and paying the land taxes did
not constitute an unequivocal act of repudiation amounting
to an ouster of the other co-owner and could not constitute
adverse possession as basis for title by prescription.
Heirs of F. Restar v. Heirs
of D. R. Cichon, 2005
From the foregoing evidence, it can be seen that the adverse
possession of Flores started in 1960, the time when the tax
declaration was transferred in his name. The period of
acquisitive prescription started to run from this date. Hence,
the adverse possession of Flores Restar from 1960 vested in
him exclusive ownership of the land considering the lapse
of more than 38 years. Acquisitive prescription of
ownership, laches and prescription of the action for
partition should be considered in favor of Flores Restar and
his heirs.
While tax declarations and receipts are not conclusive
evidence of ownership and do not prove title to the land,
nevertheless, when coupled with actual possession, they
constitute evidence of great weight and can be the basis of a
claim of ownership through prescription.
Delima v. CA, 1991
We have held that when a co-owner of the property in
question executed a deed of partition and on the strength
thereof obtained the cancellation of the title in the name of
their predecessor and the issuance of a new one wherein he
appears as the new owner of the property, thereby in effect
denying or repudiating the ownership of the other co-
owners over their shares, the statute of limitations started to
run for the purposes of the action instituted by the latter
seeking a declaration of the existence of the co-ownership
and of their rights thereunder (Castillo v. Court of Appeals,
No. L-18046, March 31, 1964, 10 SCRA 549). Since an
action for reconveyance of land based on implied or
constructive trust prescribes after ten (10) years, it is from
the date of the issuance of such title that the effective
assertion of adverse title for purposes of the statute of
limitations is counted (Jaramil v. Court of Appeals, No. L-
31858, August 31, 1977, 78 SCRA 420)
v. When Right to Demand
Partition Not Available (Art. 495)
Art. 495. Notwithstanding the provisions of the preceding
article, 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 which it is intended. But the
co-ownership may be terminated in accordance with
Article 498. (401a)
NOTES: Article 495 denies to a co-owner the right to
demand a physical or material division of a thing which is
essentially indivisible (e.g., car, piano) when to do so could
render it unserviceable for the use for which it is intended.
It does not prevent the termination of the co-ownership
such as the assignment of the thing to one of them or the
sale of the thing and the distribution of the proceeds as
provided in Article 498.
vi. Action for Partition (Art. 496)
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 with this Code. (402)
NOTE: There are 2 main issue in an action for partition;
first, the determination of the existence of the co-
ownership and, second, how to partition the co-owned
property.
Ocampo v. Ocampo, 2004
Since the original Complaint was an action for partition,
this Court cannot order a division of the property, unless it
first makes a determination as to the existence of a co-
ownership. The settlement of the issue of ownership is the
first stage in an action for partition. This action will not lie
if the claimant has no rightful interest in the subject
property.
Petitioners, however, presented absolutely no proof of
ownership of their predecessors-in-interest. In insisting that
it was so transferred and thus co-owned, the former rely on
the Acknowledgment of Co-ownership executed by Fidela,
their eldest sibling.
On the other hand, Belen clearly traced the basis of her
alleged sole ownership of the property and presented
preponderant proof of her claim.
Reyes-De Leon v. Del
Rosario, 2004
The question of validity or nullity of the deed of sale, as
well as the claim for damages, is necessarily and logically
intertwined with the partition case. The issue of ownership
or co-ownership, to be more precise, must first be resolved
in order to effect a partition of properties. This should be
done in the action for partition itself and not on a separate
case.
To split the proceedings into declaration of nullity of the
deed of sale and trial for the partition case, or to hold in
abeyance the partition case pending resolution of the
nullity case would result in multiplicity of suits, duplicitous
procedure and unnecessary delay, as the lower court
observed. The conduct of separate trials of the parties'
respective claims would entail a substantial duplication of
effort and time not only of the parties but also of the courts
concerned. On the other hand, it would be in the interest of
justice if the partition court hears all the actions and
incidents concerning the properties subject of the partition
in a single and complete proceeding
vii. Application of the Statute of
Frauds
The Statute of Frauds does not apply to partition because it
is not legally deemed a conveyance or a sale of property (see
Art. 1403[2, a].) resulting in change of ownership but
simply a segregation and designation of that part of the
property which belongs to each of the co-owners. (Vda. de
Espina v. Abaya, 196 SCRA 312 [1991]; Pada-Kilario v.
Court of Appeals, 118 SCAD
427, 322 SCRA 481 [2000]) Partition is, therefore, valid and
enforceable although made orally where no third persons
are involved.
On general principle, independent and in spite of the
Statute of Frauds, courts of equity have enforced oral
partition when it has been completely or partly performed.
Thus, it has been held or stated in a number of cases
involving an oral partition under which the parties went
into possession, exercised acts of ownership, or otherwise
partly performed the partition agreement, that equity will
confirm such partition and in a proper case, decree title in
accordance with the possession in severalty. They are
estopped to question title to portion allotted to another
party. (Maglucot-Aw v. Maglucot, 329 SCRA 78 [2000])
Maglucot-Aw v.
Maglucot, 2000
The validity of an oral partition is already well-settled. In
Espina vs. Abaya, we declared that an oral partition is valid.
In Hernandez vs. Andal, reiterated in Tan vs. Lim, this
Court has ruled, thus:
On general principle, independent and
in spite of the statute of frauds, courts of
equity have enforce oral partition when
it has been completely or partly
performed.
It has been previously held that a co-owner, who, though
not a party to a partition accepts the partition allotted to
him, and holds and conveys the same in severalty, will not
be subsequently permitted to avoid partition. It follows that
a party to a partition is also barred from avoiding partition
when he has received and held a portion of the subdivided
land especially in this case where respondents have enjoyed
ownership rights over their share for a long time.
viii. Participation of Creditors and
Assignees
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 effected without 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, without prejudice to the right of the debtor or assignor to
maintain its validity. (403)
NOTES:
(1) Scope of “creditors’’ and “assignees.’’ — In view of the
existing rights and interests of creditors and assignees of the
co-owners in the common property, they are given the
right to participate in the partition.
 (a) As the law does not distinguish, the term
“creditors,’’ as used on the provision, includes all
kinds of creditors, whether preferred or ordinary,
provided they became so during the existence of
the co-ownership, and not before or after its
formation for then it cannot be said that they have
interests that could be affected by the partition.
(see 3 Manresa 527-529.)
(b) The term “assignees’’ refers to transferees of the
interests of one or more of the co-owners. If the
sale covers the entire share of a co-owner and there
has been a delivery, the buyer takes the place of
the co-owner who loses all interest in the co-
ownership, and, of course, has no right to take any
part in the partition of the property. It would be
absurd to say that after such conveyance the
former co-owner could, by agreement with the
other part owners, make a partition of the property
in which he had no interest that would be binding
upon the buyer.
Thus, in a case where X, a co-owner, sold his
undivided share in two parcels of land to P,
plaintiff, with a right of repurchase within one
year, but before the expiration of the year, X and Y,
the other co-owner, made a judicial partition of the
lands in question which were adjudicated to Y, it
was held that the partition made between X and Y
did not affect the rights of P who acquired an
undivided half interest on the two parcels of land
upon failure of X to repurchase within the
stipulated period. (Lopez v. Ilustre, 5 Phil. 567
[1906]; see Art. 493.)
However, if there has been no delivery yet of the
interest conveyed (so the assignee has only a
personal right against the co-owner), or the
conveyance is not total (so the assignor remains a
co-owner), then both the assignor, as co-owner,
and the assignee, as such, have a right to participate
in the partition.
(2) Right to notice of partition. — The law does not
expressly require that previous notice of the proposed
partition be given to the creditors and assignees. But as they
are granted the right to participate in the partition, they
have also the right to be notified thereof. In the absence of
notice, the partition will not be binding on them. Thus, in a
case, where an extrajudicial partition was made without
notice to a creditor-bank, the Supreme Court remanded the
case to the lower court in order to permit the bank to file
the objections it may deem convenient in accordance with
Article 497. (De Santos v. Bank of Phil. Islands, 58 Phil.784
[1933])
(3) Right to object to or impugn partition. — The following
rules may be given:
(a) If no notice is given, the creditors or assignees
may question the partition already made;
(b) If notice is given, it is their duty to appear and
make known their position; they may concur with
the proposed partition or object to its being
effected; and
(c) They cannot impugn a partition already
executed or implemented unless:
1) There has been fraud, whether or not
notice was given, and whether or not
formal opposition was presented; or
2) The partition was made
notwithstanding that formal opposition
was presented to prevent it, even if there
has been no fraud.
The debtor or assignor (co-owner or former co-owner) has
always the right to show the validity of the partition.
ix. Dealings with Third Persons
a. Sale of Indivisible thing
co-owned to a third person
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. (404)
NOTES: Although the thing owned in common being
essentially indivisible (e.g., car) cannot be physically
divided (see Art. 495.), the co-ownership may nevertheless
be terminated in accordance with the above provision
pursuant to the rule in Article 494 (par. 1.) by adjudication
of the thing to one of the co-owners who shall indemnify
the others or by its sale with the proceeds thereof divided
among the co-owners. The sale may be public or private,
and the purchaser may be a co-owner or a third person.
Note that the sale shall be resorted to only when the right
to partition the property is invoked by any of the co-owners
but because of the nature of the property it cannot be
divided without prejudice to the co-owners and the co-
owners cannot agree that the entire property be allotted or
assigned to one of them upon reimbursement of the shares
of the other co-owners.
There is nothing to prevent the co-owners of an essentially
indivisible property from effecting partition as provided in
Article 498. Under the Rules of Court, where real estate
cannot be divided without great prejudice to the interests of
the parties, the court may order it assigned to one of them,
or sold at public sale.
b. Rights of third persons
before partition
Art. 499. The partition of a thing owned in common shall
not prejudice third 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 third persons against the co-ownership shall
also remain in force, notwithstanding the partition. (405)
NOTES:
(1) “Third persons,’’ as used in Article 499, refers to all those
with real rights, such as mortgage and servitude over the
thing owned in common or with personal rights against the
co-owners who had no participation whatever in the
partition.
(2) “Real rights’’ and “personal rights’’ are used in their
accepted legal meaning. (see Art. 493.) Such rights of third
persons existing before the division was made are retained
by them or remain in force notwithstanding the partition.

x. Obligations of Co-owners upon

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. (n)

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. (n)

NOTES:

As provided above, they are as follows:

(1) Mutual accounting for benefits received, for the
fruits and other benefits of the thing belong to all
the co-owners (see Art. 485.);
(2) Mutual reimbursements for expenses (i.e.,
necessary expenses, taxes, and others in proper
cases), for if they share in the benefits, they should
also share in the charges (Ibid.);
(3) Indemnity for damages caused by reason of
negligence or fraud, for example, in the making of
expenses or alterations, for it is logical and just; and
(4) Reciprocal warranty for defects of title or
quality of the portion assigned to a co-owner (e.g.,
land allotted to a co-owner belongs to a third
person or property assigned is of inferior quality or
has hidden defects), for it is also justified by
considerations of reason and justice.

o. Condominium Act (R.A. No. 4726)

See Condominium Act (R.A. No. 4726)


IV. SOME SPECIAL PROPERTIES
a. WATERS (Arts. 502-518)
SECTION 1. — Ownership of Waters
Art. 502. The following are of public dominion:
(1) Rivers and their natural beds;
(2) Continuous or intermittent waters of springs and
brooks running in their natural beds and the beds
themselves;
(3) Waters rising continuously or intermittently on
lands of public dominion;
(4) Lakes and lagoons formed by nature on public
lands, and their beds;
(5) Rain waters running through ravines or sand
beds, which are also of public dominion;
(6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of
public works, even if constructed by a contractor;
(8) Waters rising continuously or intermittently on
lands belonging to private persons, to the State, to a
province, or to a city or a municipality from the
moment they leave such lands;
(9) The waste waters of fountains, sewers and public
establishments. (407)
Art. 503. The following are of private ownership:
(1) Continuous or intermittent waters rising on
lands of private ownership, while running through
the same;
(2) Lakes and lagoons, and their beds, formed by
nature on such lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they
remain within the boundaries;
(5) The beds of flowing waters, continuous or
intermittent, formed by rain water, and those of
brooks, crossing lands which are not of public
dominion.
In every drain or aqueduct, the water, bed, banks and
floodgates shall be considered as an integral part of the land
or building for which the waters are intended. The owners of
lands, through which or along the boundaries of which the
aqueduct passes, cannot claim ownership over it, or any right
to the use of its bed or banks, unless the claim is based on
titles of ownership specifying the right or ownership
claimed. (408)
SECTION 2. — The Use of Public Waters
Art. 504. The use of public waters is acquired:
(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the use shall be
that established, in the first case, by the terms of the
concession, and, in the second case, by the manner and form
in which the waters have been used. (409a)
Art. 505. Every concession for the use of waters is
understood to be without prejudice to third persons. (410)
Art. 506. The right to make use of public waters is
extinguished by the lapse of the concession and by non-user
for five years. (411a)
SECTION 3. — The Use of Waters of Private Ownership
Art. 507. The owner of a piece of land on which a spring or
brook rises, be it continuous or intermittent, may use its
waters while they run through the same, but after the waters
leave the land they shall become public, and their use shall
be governed by the special Law of Waters of August 3, 1866,
and by the Irrigation Law. (412a)
Art. 508. The private ownership of the beds of rain waters
does not give a right to make works or constructions which
may change their course to the damage of third persons, or
whose destruction, by the force of floods, may cause such
damage. (413)
Art. 509. No one may enter private property to search waters
or make use of them without permission from the owners,
except as provided by the Mining Law. (414a)
Art. 510. The ownership which the proprietor of a piece of
land has over the waters rising thereon does not prejudice
the rights which the owners of lower estates may have
legally acquired to the use thereof. (415)
SECTION 4. — Subterranean Waters
Art. 512. Only the owner of a piece of land, or another
person with his permission, may make explorations thereon
for subterranean waters, except as provided by the Mining
Law.
Explorations for subterranean waters on lands of public
dominion may be made only with the permission of the
administrative authorities. (417a)
Art. 513. Waters artificially brought forth in accordance with
the Special Law of Waters of August 3, 1866, belong to the
person who brought them up. (418)
Art. 514. When the owner of waters artificially brought to
the surface abandons them to their natural course, they shall
become of public dominion. (419)
SECTION 5. — General Provisions
Art. 515. The owner of a piece of land on which there are
defensive works to check waters, or on which, due to a
change of their course, it may be necessary to reconstruct
such works, shall be obliged, at his election, either to make
the necessary repairs or construction himself, or to permit
them to be done, without damage to him, by the owners of
the lands which suffer or are clearly exposed to suffer injury.
(420)
Art. 516. The provisions of the preceding article are
applicable to the case in which it may be necessary to clear a
piece of land of matter, whose accumulation or fall may
obstruct the course of the waters, to the damage or peril of
third persons. (421)
Art. 517. All the owners who participate in the benefits
arising from the works referred to in the two preceding
articles, shall be obliged to contribute to the expenses of
construction in proportion to their respective interests.
Those who by their fault may have caused the damage shall
be liable for the expenses. (422)
Art. 518. All matters not expressly determined by the
provisions of this Chapter shall be governed by the special
Law of Waters of August 3, 1866, and by the Irrigation Law.
(425a)
NOTE: See PD 1067 or the Water Code of the Philippines
V. POSSESSION
a. POSSESSION AND KINDS (Arts. 523-530)
Article 523. Possession is the holding of a thing or the
enjoyment of a right. (430a)
Article 524. Possession may be exercised in one's own name
or in that of another. (413a)
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. (432)
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 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. (433a)
Article 527. Good faith is always presumed, and upon him
who alleges bad faith on the part of a possessor rests the
burden of proof. (434)
Article 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. (435a)
Article 529. It is presumed that possession continues to be
enjoyed in the same character in which it was acquired, until
the contrary is proved. (436)
Article 530. Only things and rights which are susceptible of
being appropriated may be the object of possession. (437)
1. Concept
Article 523. Possession is the holding of a thing or the
enjoyment of a right. (430a)
NOTES: The definition of the term given by Article 523 is not
complete. As a distinct legal concept, possession is the holding of a
thing or the enjoyment of a right with the intention to possess in
one’s own right. Article 523 presumes from the fact of possession
the intention to possess.
2. Vs. Ownership
Possession and ownership are distinct legal concepts. There
is ownership 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. Ownership
confers certain rights to the owner, among which are the
right to enjoy the thing owned and the right to exclude
other persons from possession thereof.
On the other hand, possession is defined as the holding of a
thing or the enjoyment of a right. Literally, to possess
means to actually and physically occupy a thing with or
without right.
Possession may be had in one of two ways: possession in the
concept of an owner and possession of a holder. A person
may be declared owner but he may not be entitled to
possession. The possession may be in the hands of another
either as a lessee or a tenant. A person may have
improvements thereon of which he may not be deprived
without due hearing. He may have other valid defenses to
resist surrender of possession. A judgment for ownership,
therefore, does not necessarily include possession as a
necessary incident. (Heirs of R. Soriano v. Court of
Appeals,153 SCAD 86, 363 SCRA 87 [2001].) In fine, just as
possession is a definite proof of ownership, neither is non-
possession inconsistent with ownership. (Medina vs.
Greenfield Dev. Corp., 443 SCRA 150 [2004])
3. Elements
Possession in law has thus three elements or requisites.
(1) There must be holding or control of a thing or
right. — Except in the two cases mentioned in Article 537,
possession always implies the element of corpus or
occupation (see Art. 531, whether in one’s own name or in
that of another. (Art. 524.) But it is necessary that there
should be such occupancy or there is no possession. (Repide
v. Astuar, 2 Phil. 757 [1903]) To put it in another way, there
must be possession in fact.
(2) The holding or control must be with intention
to possess. — Clearly, possession involves a state of mind on
the part of the possessor whereby he intends to exercise,
and, as a consequence of which, he does exercise a right of
possession, whether the right be legal or otherwise; and
while the intention and the will to possess may be, and
usually are inferred from the fact that the thing in question
is under the apparent power and control of the alleged
possessor, nevertheless, the existence of the animus
possidendi is subject to contradiction, and may be rebutted
by evidence which tends to prove that the person under
whose power and control the thing in question appears to
be, does not in fact exercise such power of control and does
not intend to do so. (US v. Tan Tayco, 12 Phil. 739 [1909])
Persons who have no legal wills, such as insane and
demented persons cannot acquire possession as they are
incapable of understanding or knowing the import of their
actions, and therefore, the animus possidendi cannot be
present.
(3) It must be in one’s own right. — Possession
may be held by a person in his own name or in that of
another (Art. 524) i.e., by the possessor himself in his own
name or by an agent in the name of the principal. In the
first case, the possession may be in the concept of owner or
in the concept of a holder of the thing (e.g., lessee) with
ownership pertaining to another. (Art. 518.) In the second
case, the possession is exercised by the owner or holder, as
principal, thru his agent. In both cases, the possession of the
owner or holder is by virtue of his right as such owner or
holder. Strictly speaking, the agent has no possession in law
because it is not by virtue of his own right.
Note: Under Article 430 of the old Civil Code, there was a
distinction between natural possession and civil possession.
The first was there defined as the holding of a thing or the
enjoyment of a right, and the second, as such holding or
enjoyment coupled with the intention to make the thing or
right as one’s own. Therefore, a thief’s possession, which is
wrongful or criminal was considered a civil possession.
Moreover, the old Code made no practical application of the
distinction on the succeeding articles on possession.
In view of these considerations, and of the fact that it has
no practical value, the distinction has been abolished. (I
Capistrano, op. cit., p. 470) So, now, possession is
considered under one concept in place of the two concepts
before.
Yu v. Pacleb, 2009
It is undisputed that the Langcaan Property is in
the possession of Ramon, the son of the registered
owner. Regardless of the representations given by
the latter, this bare fact alone should have made
petitioner spouses suspicious as to the veracity of
the alleged title of their vendor.
Based on the foregoing, therefore, petitioner
spouses cannot be considered as innocent
purchasers in good faith.
4. Relations created
Possession is characterized by two relations.
(1) The possessor’s relation to the property itself. —
This assumes that the possessor exercises some degree of
control more or less effective over the object. As Holmes
wrote: “If there were only one other man in the world, and
he was safe under lock and key in jail, the person having
the key would not possess the swallows that flew over the
prison.’’ (Common Law, p. 216)
(2) The possessor’s relation to the world. — Aside
from the power of control over the object, the possessor
must also have the ability to exclude others from his
possession. A customer who holds and examines a piece of
jewelry in the presence of the seller may be said to have
only custody, not possession, of the jewelry because he lacks
full control over it and has also no intention to exclude
others. No fixed rule can be laid down as to the degree of
control or amount of the power to exclude is necessary to
constitute occupancy. The resolution of the question would
depend much on the circumstances of the particular case.
5. Forms or degrees
They may be as follows:
(1) Possession without any title whatever. — This
is mere holding or possession without any right or title at
all, such as that of a thief or squatter;
(2) Possession with a juridical title. — The
possession is predicated on a juridical relation existing
between the possessor and the owner (or one acting in his
behalf) of the thing but not in the concept of owner such as
that of a lessee, usufructuary, depositary, agent, pledgee,
and trustee;
(3) Possession with a just title. — The possession of
an adverse claimant whose title is sufficient to transfer
ownership but is defective such as when the seller is not the
true owner or could not transmit his rights thereto to the
possessor who acted in good faith; and
(4) Possession with a title in fee simple. —
Possession derived from the right of dominion or possession
of an owner. This is the highest degree of possession.
6. Nature
Possession may be viewed as an act, as a fact or condition,
or as a right.
(1) As an act. — It is simply the holding of a thing
or the enjoyment of a right with the intention to possess in
one’s own right.
2) As a fact. — When there is holding or
enjoyment, then possession exists as a fact. It is the state or
condition of a person having property under his control,
with or without right.
(3) As a right. — It refers to the right of a person to
that holding or enjoyment to the exclusion of all others
having better right than the possessor. (Art. 533.) It may be:
(a) Jus possidendi or right to possession which is
incidental to and included in the right of
ownership; or
(b) Jus possessionis or right of possession
independent of and apart from the right of
ownership.
Sometimes, possession is used to refer to the thing possessed
— that which one owns, occupies, or controls.
7. Possession as a fact
(1) Benefits to possessor. — The fact of possession
gives rise to certain rights and presumptions. Thus, a
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. (Art. 539.)
A possessor has in his favor the presumption that his
possession is lawful — that he is the owner or has been
given the right of possession by the owner. He who would
disturb a possessor must show either ownership or a better
possessory right.
(2) As proof of ownership. — Possession is not a
definitive proof of ownership nor is non-possession
inconsistent therewith. (Heirs of G. Bofill v. Court of
Appeals, 56 SCAD 73, 237 SCRA 451 [1994]) Possession,
however, may create ownership either by occupation (Art.
712) or by acquisitive prescription. (Arts. 1132, 1134, 1137)
8. Classes of possession
Possession under the Civil Code is classified as follows:
(1) Possession in one’s own name or in the name of
another (Art. 524.);
(2) Possession in the concept of owner or
possession in the concept of holder (Art. 525.); and
(3) Possession in good faith or possession in bad
faith. (Art. 526.)
9. Extent
Possession may also be actual or constructive.
(1) Actual possession is occupancy in fact of the
whole or at least substantially the whole. With reference to
land, it consists in the manifestation of acts of dominion
over it of such a nature as a party would naturally exercise
over his property. (Ramos v. Director of Lands, 39 Phil. 175
[1918]) Literally, to possess means to actually and physically
occupy a thing with or without a right.
(2) Constructive possession, on the other hand, is
occupancy of part in the name of the whole under such
circumstances that the law extends the occupancy to the
possession of the whole.
10. Doctrine of constructive possession
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. (Ramos v. Director of
Lands, supra)
(1) The general rule is that the possession and
cultivation of a portion (e.g., 1/4) of a tract of land under
claim of ownership of all is constructive possession of all.
Thus, where the petitioner took possession of the land by
planting coconut, Ipil-ipil and fruit trees, and two years
later, he started the construction of a building thereon, it
was held immaterial that the building was unfinished and
that he left the place for employment reasons and visited
the property only intermittently. It is sufficient that the
possessor was able to subject the property to the action of
his will. (Somodio v. Court of Appeals, 54 SCAD 374, 236
SCRA 307 [1994])
(2) There are qualifications to this rule, and one of
them is that relating to the size of the tract in controversy
with reference to the portion actually in possession of the
claimant.
(a) “Mere planting of a sign or symbol of
possession cannot justify a Magellan-like claim of
dominion over an immense tract of territory.’’
(Lasam v. Director of Lands, 65 Phil. 367 [1938])
(b) Neither does mere cultivation of a land
constitute possession under a claim of ownership.
(Republic v. Court of Appeals, 167 SCRA 150
[1988])
(c) Similarly, mere fact of declaring
uncultivated land for taxation purposes and visiting
it every once in a while has been held not to
constitute acts of possession. (Ramirez v. Director
of Lands, 60 Phil. 114 [1934])
(d) The doctrine does not also apply where
the possession is wrongful or the part allegedly
constructively possessed is in the adverse
possession of another. (Rosales v. Director of Lands,
51 Phil. 302 [1927]; Ramos v. Director of Lands,
supra.; Sarmiento v. Lesaca, 108 Phil. 900 [1960])
Republic v. Jacob, 2006
Indeed, the law speaks of "possession and occupation."
Possession is broader than occupation because it includes
constructive possession. Unless, therefore, the law adds the
word "occupation," it seeks to delimit the all-encompassing
effect of constructive possession. Taken together with the
words "continuous," "exclusive" and "notorious," the word
"occupation" seems to highlight the facts that for an
applicant to qualify, her possession of the property must not
be a mere fiction.
Sarmiento v. Lesaca, 1960
Has the vendor complied with this express commitment?
she did not. As provided in Article 1462, the thing sold shall
be deemed delivered when the vendee is placed in the
control and possession thereof, which situation does not
here obtain because from the execution of the sale up to the
present the vendee was never able to take possession of the
lands due to the insistent refusal of Martin Deloso to
surrender them claiming ownership thereof. And although
it is postulated in the same article that the execution of a
public document is equivalent to delivery, this legal fiction
only holds true when there is no impediment that may
prevent the passing of the property from the hands of the
vendor into those of the vendee.
11. Concept of Possession and Occupation in Registration
Cases
Malabanan v. Republic, 2009
The petitioners failed to present sufficient evidence to
establish that they and their predecessors-in-interest had
been in possession of the land since June 12, 1945. Without
satisfying the requisite character and period of possession -
possession and occupation that is open, continuous,
exclusive, and notorious since June 12, 1945, or earlier - the
land cannot be considered ipso jure converted to private
property even upon the subsequent declaration of it as
alienable and disposable.
12. How exercised
Art. 524. Possession may be exercised in one’s own name or
in that of another. (431a)
NOTES:
An owner or a holder may exercise his possession in his
own name, that is, personally; or through another, that is,
through an agent acting in the name of the owner or
holder. In the same way, possession may be acquired by the
same person who is to enjoy it or by one acting for another.
(Art. 532.)
(1) In one’s own name. — When possession is in
one’s own name, the fact of possession and the right to such
possession are found in the same person, such as the actual
possession of an owner or a lessor of land.
(2) In the name of another. — When possession is
in the name of another, the one in actual possession is
without any right of his own, but is merely an instrument
of another in the exercise of the latter’s possession, such as
the possession of an agent, servant, or guard. Possession in
another’s name may be:
(a) Voluntary, when exercised by virtue of an
agreement; or
(b) Necessary or legal when exercised by virtue of
law, such as the possession in behalf of
incapacitated persons (see Arts. 1327, 1329.) and
juridical entities. (See Art. 46.)
The unauthorized voluntary possession by a third person in
the name of another shall become effective only after it is
ratified by the latter. (see Art. 1317; 3 Manresa 81-86.)
Possession in the name of another may also be:
(a) Physical or material, when the possessor is a
mere custodian or keeper of the property or funds
received and has no independent right or title to
retain or possess the same as against the owner,
such as the possession of money received by a teller
for the bank; or
(b) juridical, when the possession gives the
transferee a right over the thing which the
transferee may set up against the owner, such as
the possession of an agent who receives the
proceeds of sales of goods delivered to him in
agency by his principal. Under the law (Art. 1915,
Civil Code.), an agent can assert against his
principal an independent right to retain money or
goods received in consequence of the agency, as
when the principal fails to reimburse him for
advances he has made and indemnify him for
damages suffered without his fault.
A receiving teller of a bank who misappropriates the money
received by him for the bank is liable not for estafa but for
qualified theft, on the theory that being a mere bank
employee, his possession is the possession of the bank.
Being a mere cash custodian, a bank teller has no juridical
possession. On the other hand, a sales agent who
misappropriates or fails to return to his principal the
proceeds of things he was commissioned or authorized to
sell is liable for estafa under Article 315(1, b) of the Revised
Penal Code. (see People v. Locsin, 57 Phil. 325 [1932];
Guzman v. Court of Appeals, 99 Phil. 703 [1956]; Chua-
Burce v. Court of Appeals, 331 SCRA 1 [2000])
Chua-Burce v. CA, 2000
Juridical possession means a possession which gives the
transferee a right over the thing which the transferee may
set up even against the owner. In this case, petitioner was a
cash custodian who was primarily responsible for the cash-
in-vault. Her possession of the cash belonging to the bank is
akin to that of a bank teller, both being mere bank
employees.
Petitioner herein being a mere cash custodian had no
juridical possession over the missing funds. Hence, the
element of juridical possession being absent, petitioner
cannot be convicted of the crime of estafa under Article
315, No. 1 (b) of the Revised Penal Code.
13. Possession in the concept of owner
Art. 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. (432)
NOTES:
Possession in the concept of owner — This takes place
when the possessor of a thing or right, by his actions, is
considered or is believed by other people as the owner,
regardless of the good or bad faith of the possessor. It is
possession under a claim of ownership or title (en concepto
de dueño) by one who is the owner himself or one who is
not the owner but claims to be and acts as the owner.
14. Possession in the concept of holder
Possession in the concept of holder — This takes
place when the possessor of a thing or right holds it merely
to keep or enjoy it, the ownership pertaining to another
person. It is possession not under a claim of ownership (or
not in the concept of owner), the possessor acknowledging
in another a superior right which he believes to be of
ownership, whether this be true or not (see 3 Manresa 87-
89.) or his belief be right or wrong. (Maglucot-Aw v.
Maglucot, 329 SCRA 78 [2000]; Carlos v. Republic, 468
SCRA 709 [2005]) Thus, the usufructuary, depositary,
lessee, pledgee, and the bailee in commodatum possesses
with respect to the thing in the concept of holder or non-
owner. A person declared in a judgment to be the owner
may not, therefore, be entitled to possession which may be
in the hands of another such as a lessee.
A person may be a lessor although he is not the
owner of the property leased. In lease, only the temporary
use and enjoyment, not the ownership of the property is
transferred.
Carlos v. Republic, 2005

Petitioner herein acknowledges the sale of the property to
Ususan Development Corporation in 1996 and in fact
promised to deliver the certificate of title to the corporation
upon its obtention. Hence, it cannot be said that her
possession since 1996 was under a bona fide claim of
ownership. Under the law, only he who possesses the
property under a bona fide claim of ownership is entitled to
confirmation of title.
15. Possessor in good faith; bad faith
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. (433a)
i. Requisites
They are the following:
(1) The possessor has a title or mode of acquisition
(see Art. 712.);
(2) There is a flaw or defect in said title or mode;
and
(3) The possessor is unaware or aware of the flaw
or defect or believes that the thing belongs or does
not belong to him.
A possessor in good faith becomes a possessor in
bad faith from the moment he becomes aware that
what he believes to be true is not so. (Tacas v.
Tobon, 53 Phil. 356 [1929]) If the flaw is in the title
of the possessor’s predecessor, and affects his own
title, the flaw exists in his own title unless he can
sustain his own title independent of that of his
predecessor.
It has been held that a purchaser cannot be
considered as being “aware of a flaw which
invalidates [his] acquisition of the thing,’’ where
the alleged flaw, the notice of lis pendens, was
already being cancelled at the time of the purchase.
(Po Lam v. Court of Appeals, 347 SCRA 86 [2000])
Po Lam v. CA, 2000
Petitioners cannot be considered as being "aware of a flaw
which invalidates their acquisition of the thing" since the
alleged flaw, the notice of lis pendens, was already being
ordered cancelled at the time of the purchase. On this
ground alone, petitioners can already be considered buyers
in good faith
ii. Concept of good faith
(1) A question of intention ascertained by
outward acts. — Good faith or the lack of it is, in
the last analysis, a question of intention; but in
ascertaining the intention by which one is actuated
on a given occasion, the courts are necessarily
controlled by the evidence as to the conduct and
outward acts by which alone the inward motive
may, with safety, be determined. So it is that
“honesty of intention,’’ “the honest lawful intent,’’
which constitutes good faith, implies a “freedom
from knowledge and circumstances which ought to
put a person on inquiry,’’ and so it is that proof of
such knowledge which overcomes the presumption
of good faith to the contrary.
Good faith or the want of it, is not a visible,
tangible fact that can be seen or touched but rather
a state or condition of mind which can only be
ascertained by actual or fancied tokens or signs.
(Leung Yee v. Strong Machinery Co., 37 Phil. 644
[1918]) An individual’s personal good faith is a
concept of his own mind and, therefore, may not
conclusively be determined by his protestations
alone. (Heirs of M. Cabal v. Spouses L. and R.
Cabal, G.R. No. 153625, July 31, 2006)
(2) Essence. — The essence of bona fides
or good faith, therefore, lies in honest belief in the
validity of one’s right, ignorance of a superior
claim, and absence of intention to overreach
another (Negrete v. Court of First Instance of
Marinduque, 48 SCRA 113 [1972].), or to defraud
or to seek an unconscionable advantage. Good faith
must rest on a colorable right in the possessor
beyond a mere stubborn belief in one’s title. (see
Baltazar v. Caridad, 17 SCRA 460 [1966].) Applied
to possession, one is considered a possessor in good
faith if he is not aware that there exists in his title
or mode of acquisition any flaw which invalidates
it. (Art. 526.)
Heirs of M. Cabal v. Spouses L. and R. Cabal, 2006
It is undisputed that Marcelino built his house on the
disputed property in 1949 with the consent of his father.
Marcelino has been in possession of the disputed lot since
then with the knowledge of his co-heirs, such that even
before his father died in 1954, when the co-ownership was
created, his inheritance or share in the co-ownership was
already particularly designated or physically segregated.
Thus, even before Lot G was subdivided in 1976, Marcelino
already occupied the disputed portion and even then co-
ownership did not apply over the disputed lot. Marcelino is
deemed a builder in good faith at least until the time he was
informed by respondents of his encroachment on their
property.
Negrete v. CFI of Marinduque, 1972
It is therefore patent that the land sold by Tito Oriendo to
the late Igmedio Maderazo is distinct from the land of
plaintiff-appellant Ignacia Negrete as to location,
boundaries and area. To repeat, the land of plaintiff-
appellant is about nine (9) hectares and located in sitio
Puting Buhangin, Mogpog. The lot of defendant-appellee is
only about 3,700 square meters and situated in barrio
Puyog, Boac.
Hence, not being a possessor in good faith, defendant-
appellee Catalino Maderazo can acquire ownership over the
disputed parcel of land of about nine (9) hectares belonging
to plaintiff-appellant only by extraordinary acquisitive
prescription thru an uninterrupted adverse possession of
thirty (30) years (Art 1137, Civil Code of the Philippines).
Since he occupied the same for only about thirteen (13)
years from 1954 until 1967, when his adverse possession
was interrupted by the filing of the action for reivindicacion
on January 18, 1967 (Art. 1155, Civil Code of the
Philippines), the claim of defendant-appellee is untenable.
Baltazar v. Caridad, 1966
Appellants cannot be regarded as builders in good faith
because they are bound by the 1941 decree of registration
that obligated their parents and predecessors-in-interest.
Good faith must rest on a colorable right in the builder,
beyond a mere stubborn belief in one's title despite judicial
adjudication. The fact that in 1959 appellants demolished
and replaced their old house with new and bigger ones
cannot enervate the rights of the registered owners.
Otherwise, the rights of the latter to enjoy full possession of
their registered property could be indefinitely defeated by
an unsuccessful opponent through the simple subterfuge of
replacing his old house with a new one from time to time.
iii. Concept of bad faith
Bad faith is, of course, the opposite of good faith. It
does not simply connote bad judgment or
negligence; it imputes a dishonest purpose to do
wrong or cause damage. It contemplates a state of
mind affirmatively operating with furtive design or
some motive of self-interest or ill-will for ulterior
purposes. (see Villanueva v. Sandiganbayan, 42
SCAD 562, 223 SCRA 543 [1993])
In the sample cases that follow, after considering
the facts and surrounding circumstances, possession
was held to be in bad faith.
(1) Where the defendant had always
believed that the land in question did not belong to
them. (Javier v. Javier, 6 Phil. 493 [1906])
(2) Where the defendant was present
when her husband entered into the lease contract
and was not ignorant of the defect in her husband’s
alleged prescriptive title when she pretended to
take possession thereunder. (Lerma v. De la Cruz, 7
Phil. 581 [1907])
(3) Where the petitioner acquired his
interest in the land aware that a litigation
concerning the land was still pending. (Rivera v.
Moran, 48 Phil. 836 [1926])
(4) Where a purchaser believed that the
seller was the owner of the land sold, which land
was owned by another as evidenced by the latter’s
Torrens title thereto, in view of the presumptive
knowledge of the Torrens title. (J.M. Tuason & Co.,
Inc. v. Mumar, 25 SCRA 405 [1968])
(5) Where the lessee continues to occupy
the premises after the period of the lease contract
has already expired as he becomes an usurper with
no right to legitimately continue in the use and
enjoyment thereof. (Republic v. Diaz, 92 SCRA 535
[1979])
(6) Where the purchaser of land has
learned of another person’s open, peaceful and
adverse possession of the same, as he is aware of
sufficient fact to warrant an inquiry into the status
of the title to the land. (Manacop, Jr. v. Cansino, 1
SCRA 572 [1961]; Salvoro v. TaÒega, 87 SCRA 349
[1978]; Republic v. Court of Appeals, 102 SCRA
331 [1981]) Where the land sold is in the
possession of a person other than the vendor, the
purchaser must go beyond the certificate of title
and make inquiries concerning the rights of the
actual possessor. Failing in this, the purchaser
cannot invoke the light of purchaser in good faith
and cannot acquire a better right than his
predecessor-in-interest. (Heirs of T. de Leon Vda.
De Roxas v. Court of Appeals, 422 SCRA
101[2004].) But the fact mere that a land is
peaceably possessed by a person other than the
seller does not make the buyer one in bad faith
where he relied in good faith for value upon the
certificate of title of the seller. (Benin v. Tuazon, 57
SCRA 531 [1974])
(7) Where the purchaser of land has notice
that it is subject to right of repurchase from his
vendor (the vendee a retro in the previous sale)
although such right has already lapsed but the title
has not yet been cleared of the encumbrance.
(Conde v. Court of Appeals, 119 SCRA 245 [1982])
(8) Where one purchased a land, on the
certificate of title of which an adverse claim was
previously annotated. (Gardner v. Court of
Appeals, 131 SCRA 585 [1984]) If an existing claim
or encumbrance is not annotated in the title, the
sale must be given effect for the settled doctrine is
that the purchaser in good faith for value of
property covered by a clear certificate of title can
rest assured that his title is perfect and
uncontrovertible. (Benin v. Tuazon, supra; see
Carreon v. Agcaoili, 1 SCRA 521 [1961])
As a general rule, where there is nothing in the
certificate of title to indicate any cloud or vice in
the ownership of property, or any encumbrance
thereon, the purchaser is not required to explore
further than what the Torrens title upon its face
indicates in quest for any hidden defect or inchoate
right that may subsequently efeat his rights
thereto. (State Investment House, Inc. v. Court of
Appeals, 69 SCAD 135, 254 SCRA 368 [1996])
But the defense of indefeasibility of a certificate of
title does not extend to a transferee who takes it
with notice of the flaws in his transferor’s title or
the latter’s lack of title, or has knowledge of a prior
existing interest which is unregistered at the time
he acquired a right to the property, or is aware of
 sufficient facts to induce a reasonably prudent man
to inquire into the status of the title to the property
in litigation. If, at all, he only acquires the right
which the vendor or mortgagor then had. The rule
that a person, be he a buyer or mortgagee, dealing
with property is not required to go beyond what
appears on the face of the covering title itself does
not apply to banks. Judicial notice is taken of the
standard practice for banks before approving a
loan, to send representatives to the premises of the
land offered as collateral.
The Torrens system of land registration cannot be
used as a means to perpetrate fraud against the
rightful owner of real property. Registration, to be
effective, must be made in good faith. (Ibid.;
Bornales v. Intermediate Appellate Court, 166
SCRA 519 [1988]; Private Dev. Corp. of the Phils.
v. Court of Appeals, 475 SCRA 591 [2005])
Heirs of Vda. de Roxas v. CA, 2004
Furthermore, as found by this Court in G.R. No. 118436, the
Roxas family has been in possession of the property
uninterruptedly through their caretaker, Jose Ramirez who
resided on the property. Where the land sold is in the
possession of a person other than the vendor, the purchaser
must go beyond the certificates of title and make inquiries
concerning the rights of the actual possessor. Meycauayan
therefore cannot invoke the right of a purchaser in good
faith and could not have acquired a better right than its
predecessor-in-interest. This Court has already rejected
Meycauayan's claim that it was a purchaser in good faith
when it ruled in G.R. No. 118436 that there had been no
intervening rights of an innocent purchaser for value
involving the lots in dispute.
Benin v. Tuason, 1974
16. Presumption of good faith
Art. 527. Good faith is always presumed, and upon him who
alleged bad faith on the part of a possessor rests the burden of
proof. (434)
NOTES:
Article 527 establishes the presumption of good faith; it
does not say that good faith exists, but that it is presumed.
This presumption is just, because possession is the outward
sign of ownership. It is to be presumed that the right of the
possessor is well-founded. This appearance of lawful
possession must be accepted even though it be in reality
nothing more than a disguise for bad faith, because this
cannot be known with certainty until proved, and because
every person is presumed to be honest until the contrary is
shown. For this reason, protection is given to the possessor
against all other persons, whoever they may be, and hence,
the precept of Article 527 demands proof of bad faith. (US v.
Rapiñan, 1 Phil. 294 [1903], citing 4 Manresa 96)
17. Interruption of good faith
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. (435a)
NOTES:
Possession which begins in good faith is presumed to
continue in good faith until the possessor acquires
knowledge of facts showing a defect or weakness in his title.
(Valencia v. Jimenez, 11 Phil. 492 [1908])
The law speaks of “facts’’ in place of the word “acts’’ in the
old provision, the former being broader than the latter.
Thus, it is immaterial whether the “facts’’ from which bad
faith can be deduced involve acts of the possessor himself or
of some other person or any extraneous evidence. But the
existence of the facts mentioned in the article must be
proved.
(1) Commencement of bad faith. — Bad faith
begins or good faith is interrupted from the time the
possessor becomes aware “that he possesses the thing
improperly or wrongfully,’’ not from the time possession
was acquired. For instance, if the possessor learned from the
true owner himself the grounds in support of the latter’s
adverse claim and he becomes aware that his title is not
valid or at least doubtful, he is deemed to have taken
possession in bad faith only from that time with all the legal
consequences arising from such possession. (see Art. 552;
Ortiz v. Fuentebella, supra)
(2) Interruption of good faith. — In the absence of
other facts showing the possessor’s knowledge of defect in
his title, good faith is interrupted from the receipt or service
of judicial summons.
A possessor in good faith is entitled to the fruits only so
long as his possession is not legally interrupted, and such
interruption takes place upon service of judicial summons.
(Arts. 544, 1123)
Suobiron v. CA, 1995
The trial court held petitioners liable to private respondents
for the net produce of the properties in question from the
time the former's possession in good faith was legally
interrupted when they were served summons in connection
with private respondents' complaint for recovery of
possession with damages filed 22 July 1970, docketed as
Civil Case No. 8283, at the rate of P1,500.00 per hectare or
P39,750.00 for 26.5 hectares annually until possession was
restored. It may be that petitioners acquired the disputed
properties in good faith and had since then occupied the
same but such bona fide character of possession ceased
when they were served summons.
Maneclang v. Baun, 1992
The date of service of summons to the City of Dagupan in
Civil Case No. D-1785 is not clear from the record. Its
Answer, however, was filed on 5 November 1965.
Accordingly, its possession in good faith must be considered
to have lasted up to that date. As a possessor in good faith, it
was entitled to all the fruits of the property and was under
no obligation to pay any rental to the intestate estate of
Margarita for the use thereof. Under Article 544 of the Civil
Code, a possessor in good faith is entitled to the fruits
received before the possession is legally interrupted.
18. Other presumptions on possession
Art. 529. It is presumed that possession continues to be
enjoyed in the same character in which it was acquired, until
the contrary is proven. (436)
NOTES:
There are other presumptions aside from Articles 527 and
529 affecting possession, namely:
(1) Uninterrupted possession of hereditary property
(Art. 533, par. 1.);
(2) Possession with just title (Art. 541.);
(3) Possession of movables with real property (Art.
542.);
(4) Exclusive possession of common property (Art.
543.);
(5) Continuous possession (Art. 554.);
(6) Uninterrupted possession (Art. 561.); and
(7) Possession during intervening period. (Art.
1138[2])
19. Susceptibility of possession
Art. 530. Only things and rights which are susceptible of
being appropriated may be the object of possession. (437)
NOTES:
(1) Must be susceptible of being appropriated. —
Not all things and rights may be the object of possession. To
be the object of possession, the thing or right must be
susceptible of being appropriated. In other words, only
property may be the object of possession. (see Art. 414.)
(2) Need not be susceptible of prescription. —
Article 1113 provides that “all things which are within the
commerce of men are susceptible of prescription, unless
otherwise provided.’’ Article 530 is broader in scope than
Article 1113. To be susceptible of prescription, the things
must be within the commerce of men.
But there are things which can be susceptible of
appropriation, and, therefore, the object of possession
cannot be the object of prescription.
In other words, there are more things susceptible of
appropriation than there are things within the commerce of
men.
b. ACQUISITION OF POSSESSION (Arts. 531-538)
Article 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.
(438a)
Article 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. (439a)
Article 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. (440)
Article 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 death of the
decedent. (442)
Article 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. (443)
Article 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. (441a)
Article 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. (444)
Article 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. (445)
1. Modes of Acquiring Possession
Article 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.
(438a)
NOTES:
To be considered in possession, one need not have actual or
physical occupation of a thing at all times. There are three
ways of acquiring possession, namely:
(1) By the material occupation or exercise of a
right;
(2) By the subjection of the thing or right to our
will; and
 (3) By proper acts and legal formalities established
for acquiring such right of possession.
The modes of acquiring ownership are provided in Article
712.
2. Who acquires possession
Article 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. (439a)
NOTES:
Possession may be acquired:
(1) Personally or by the same person who is to
enjoy it;
(2) Thru an authorized person or by his legal
representative or agent; and
(3) Thru an unauthorized person or by any person
without any power or authority whatever.
3. Acquisition of Possession through Succession
Article 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. (440)
Article 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 death of the
decedent. (442)
i. Acceptance
ii. Repudiation
iii. Effects of Bad Faith of Decedent on Heir
NOTE: 3 years of possession in bad faith by the decedent
may be converted into 1 year of good faith in favor of the
heir for purposes of acquisitive prescription.
4. Possession by Minors and Incapacitated Persons
Article 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. (443)
5. Recourse to the Courts
Article 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. (441a)
Villafuerte v. CA, 2005
Article 536 of the Civil Code previously quoted explicitly
provides for the proper recourse of one who claims to be
entitled to the possession of a thing. When private
respondents personally took it upon themselves to evict
petitioners from their properties, which act was in clear
contravention of the law, they became liable "for all the
necessary and natural consequences of [their] illegal act."
6. Possession by mere tolerance
Article 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. (444)
Arambulo v. Gungab, 2005
The evidence showed that respondent has a Torrens Title
over the land. The Court of Appeals correctly ruled that
respondent, as registered owner, is preferred to possess it.
The age-old rule is that the person who has a Torrens Title
over a land is entitled to possession thereof.
Persons who occupy the land of another at the latter's
tolerance or permission, without any contract between
them is bound by an implied promise that they will vacate
the same upon demand, failing which a summary action for
ejectment is the proper remedy against them. Notably,
Anastacia Reyes only allowed petitioners to use and occupy
certain portions of the subject property. They admitted
their "use and possession" of these portions of the subject
property "had been with the knowledge, consent and
tolerance of all the other co-owners." Consequently, after
respondent obtained title to the subject property and
withdrew her tolerance later on, petitioners' refusal to
vacate it rendered their possession thereof unlawful.
Barnachea v. CA, 2008
It has been held that a person who occupies land of another
at the latter's tolerance or permission, without any contract
between them, is necessarily bound by an implied promise
that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy. The status of the
defendant is analogous to that of a lessee or tenant whose
terms has expired but whose occupancy continues by
tolerance of the owner.
The issue in an unlawful detainer case is limited to physical
possession. When a claim of ownership is used as a basis for
de facto possession or to assert a better possessory right, the
court hearing the case may provisionally rule on the issue of
ownership. As a rule, however, a pending civil action
involving ownership of the same property does not justify
the suspension of the ejectment proceedings.
Llobrera v. Fernandez, 2006
From the absence of proof of any contractual basis for
petitioners' possession of the subject premises, the only legal
implication is that their possession thereof is by mere
tolerance. In Roxas vs. Court of Appeals, we ruled:
A person who occupies the land of
another at the latter's tolerance or
permission, without any contract
between them, is necessarily bound by
an implied promise that he will vacate
upon demand, failing which, a summary
action for ejectment is the proper
remedy against him.
7. Possession in two different personalities
Article 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. (445)
8. Preference of possession
Article 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. (445)
c. EFFECTS OF POSSESSION (Arts. 539-561)
Article 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 ten 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 thirty (30) days from the filing
thereof. (446a)
Article 540. Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring dominion.
(447)
Article 541. A possessor in the concept of owner has in his
favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it. (448a)
Article 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. (449)
Article 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. (450a)
Article 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. (451)
Article 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)
Article 546. Necessary expenses shall be refunded to every
possessor; but only the possessor in good faith may retain the
thing until he has been reimbursed therefor.
Useful expenses shall be refunded only to the possessor in
good faith with the same right of retention, the person who
has defeated him in the possession having the option of
refunding the amount of the expenses or of paying the
increase in value which the thing may have acquired by
reason thereof. (453a)
Article 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. (n)
Article 548. Expenses for pure luxury or mere pleasure shall
not be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to refund the
amount expended. (454)
Article 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. (445a)
Article 550. The costs of litigation over the property shall be
borne by every possessor. (n)
Article 551. Improvements caused by nature or time shall
always inure to the benefit of the person who has succeeded
in recovering possession. (456)
Article 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. (457a)
Article 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. (458)
Article 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. (459)
Article 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.
(460a)
Article 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. (461)
Article 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. (462a)
Article 558. Acts relating to possession, executed or agreed to
by one who possesses a thing belonging to another as a mere
holder to enjoy or keep it, in any character, do not bind or
prejudice the owner, unless he gave said holder express
authority to do such acts, or ratifies them subsequently. (463)
Article 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 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. (464a)
Article 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. (465)
Article 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. (466)
1. Rights of a possessor
Article 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 ten 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 thirty (30) days from the filing
thereof. (446a)
NOTES:
Every possessor, whether in the concept of owner or in the
concept of holder, is given the following rights:
(1) The right to be respected in his
possession;
(2) The right to be protected in or restored
to said possession by legal means should he be
disturbed therein; and
(3) The right to secure from a competent
court in an action for forcible entry the proper writ
to restore him in his possession. (see Art. 428)
“Why should the law protect possession as such, even
though it may have been seized unlawfully? Would it not
be sufficient to protect only ownership or at least a
possession that is lawfully justifiable? There are three
reasons given for the protection of possession.’’
(1) As aid to criminal law. — “Firstly, it aids the
criminal law by preserving the peace. Interference with
possession almost inevitably leads to violence, not only in
primitive times but even in the more civilized world of
today. Order is best secured by protecting a possessor and
leaving the true owner to seek his remedy in a court of
law.’’
(2) As part of the law of tort. — “Secondly,
possession is protected as part of the law of tort. These
rights of action are given in respect of the immediate and
present violation of the rights of the possessor
independently of his rights of property — they are an
extension of that protection which the law throws around
the person. (Rogers v. Spence [1844],13 M & W. at 581.)’’
(3) As part of the law of property. — “Finally, possession is
protected as part of the law of property. The law does not
always know that the possession in question is unlawful. In
times when proof of title is difficult and transfers of
property require intricate formalities, it would be unjust to
cast on every man whose possession is disturbed the burden
of proving a flawless title.’’ (Paton, Jurisprudence, p. 422)
2. Possessor v. Owner
Apostol v. CA, 2004
The petitioners claim that, as alleged in their answer to the
complaint for unlawful detainer, the respondents' title over
the property is a nullity; hence, the complaint for unlawful
detainer against the petitioners should be dismissed for lack
of merit. Such allegation does not help their present
recourse. Under Section 48 of Presidential Decree No. 1529,
a certificate of title shall not be subject to collateral attack.
It cannot be altered, modified or cancelled, except in a
direct proceeding for that purpose in accordance with law.
The issue of the validity of the title of the respondents can
only be assailed in an action expressly instituted for that
purpose. Whether or not the petitioners have the right to
claim ownership over the property is beyond the power of
the court a quo to determine in an action for unlawful
detainer.
Ayson v. Enriquez Vda. de Carpo, 2004
Respondent was able to present evidence showing that after
the foreclosure of the property, petitioner failed to redeem
it within the redemption period. Thus, the latter was
divested of her ownership and right to retain possession
thereof. Respondent acquired a better right to possess the
property after acquiring title to it through a sale between
her and the mortgagee-bank.
3. Remedies of person deprived of possession
The actions established by law and the Rules of Court are:
(1) Forcible entry or unlawful detainer, (2) accion
publiciana,’
(3) accion reivindicatoria, and
(4) replevin or manual delivery of personal
property (see discussions under Art. 428.) To justify
an action for unlawful detainer, the possession (by
permission or tolerance) was lawful from the start
but later became unlawful; if the possession was
unlawful from the very beginning, an action for
forcible entry would be the remedy.
A person deprived of his possession by forcible entry
through any of the means specified in Section 1, Rule 70 of
the Rules of Court is given the right in the action for
forcible entry, to a writ of preliminary injunction to restore
him in his possession. The writ is justified because there are
many “prolonged litigations between the owner and the
usurper, and the former is frequently deprived of his
possession, even when he has an immediate right thereto.’’
(Report of the Code Commission, p. 298)
Issuance of a writ of preliminary mandatory injunction:
(1) In forcible entry actions in the Municipal Court, the
plaintiff must present within ten days from the filing of the
complaint a motion to secure from the competent court, a
writ of preliminary mandatory injunction to restore him in
his possession. (Art. 538)
(2) In unlawful detainer (ejectment) cases where an appeal
is taken, the motion shall be filed within ten days from the
time the appeal is perfected, if the higher court is satisfied
that the lessee’s appeal is frivolous or dilatory, or the lessor’s
appeal is prima facie meritorious. (Art. 1674.) This
provisional remedy may only be availed of during appeal.
(Dayao v. Shell Company of the Philippines, Ltd., 97 SCRA
407 [1980])
NOTE: The possessor also has the remedy to ask for
damages as a result of dispossession which consists of the
full rental value or reasonable compensation for the use and
occupation of the property.
Dumo v. Espinas, 2006
We agree with the CA and the RTC that there is no basis
for the MTC to award actual, moral and exemplary damages
in view of the settled rule that in ejectment cases, the only
damage that can be recovered is the fair rental value or the
reasonable compensation for the use and occupation of the
property. Considering that the only issue raised in
ejectment is that of rightful possession, damages which
could be recovered are those which the plaintiff could have
sustained as a mere possessor, or those caused by the loss of
the use and occupation of the property, and not the
damages which he may have suffered but which have no
direct relation to his loss of material possession.
Although the MTC's order for the reimbursement to
petitioners of their alleged lost earnings over the subject
premises, which is a beach resort, could have been
considered as compensation for their loss of the use and
occupation of the property while it was in the possession of
the respondents, records do not show any evidence to
sustain the same. Thus, we find no error in the ruling of the
RTC that the award for lost earnings has no evidentiary or
factual basis; and in the decision of the CA affirming the
same.
Corporation v. Treyes, 2007
It bears noting, however, that as reflected in the earlier-
quoted allegations in the complaint for damages of herein
petitioners, their claim for damages have no direct relation
to their loss of possession of the premises. It had to do with
respondent's alleged harvesting and carting away several
tons of milkfish and other marine products in their
fishponds, ransacking and destroying of a chapel built by
petitioner CGR Corporation, and stealing religious icons
and even decapitating the heads of some of them, after the
act of dispossession had occurred.
Surely, one of the elements of litis pendentia — that the
identity between the pending actions, with respect to the
parties, rights asserted and reliefs prayed for, is such that
any judgment rendered on one action will, regardless of
which is successful, amount to res judicata in the action
under consideration — is not present, hence, it may not be
invoked to dismiss petitioners' complaint for damages.
Wilmon Auto Supply Corp. v. CA, 1992

It may well be stressed in closing that as the law now
stands, even when, in forcible entry and unlawful detainer
cases, "the defendant raises the question of ownership in his
pleadings and the question of possession cannot be resolved
without deciding the issue of ownership," the Metropolitan
Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts nevertheless have the undoubted competence
to resolve "the issue of ownership . . . only to determine the
issue of possession."
De Luna v. CA, 1992
Well-established is the rule in ejectment cases that the only
issue to be resolved therein is who is entitled to the physical
or material possession of the premises, or possession de
facto, independent of any claim of ownership that either
party may set forth in their pleadings. If petitioner can
prove prior possession in himself, he may recover such
possession from even the owner himself. Whatever may be
the character of his prior possession, if he has in his favor
priority time, he has the security that entitles him to stay on
the property until he is lawfully ejected by a person having
a better right by either accion publiciana or accion
reindivicatoria
First of all, petitioner has shown that he had prior
possession of the property. The prior possession of
petitioner was established by the testimony of his witnesses,
notably that of his tenant Epigenio Dilag and Victor dela
Cruz. While petitioner admitted that he declared the
property for taxation purposes only in 1957, he had
possessed the property beginning 1953 at the very latest,
when he leased the same to Epigenio Dilag, who in turn
possessed the same until respondent Dimaano, Jr. entered
upon the property in 1972. The possession of the property
by Dilag since 1953 redounds to the benefit of petitioner,
since possession may be exercised in one's own name or in
that of another.
Semira v. CA, 1994
Considering the foregoing, it is not difficult to sustain
petitioner over private respondent when the latter failed
even to prove prior possession in his favor. Absent such
element, it cannot be said that he was forcibly deprived of
the disputed portion. Hence, his action for forcible entry
must fail.
Reynante v. CA, 1992
Assuming private respondents had acquired the alluvial
deposit (the lot in question), by accretion, still their failure
to register said accretion for a period of fifty (50) years
subjected said accretion to acquisition through prescription
by third persons.
It is undisputed that petitioner has been in possession of the
subject lots for more than fifty (50) years and unless private
respondent can show a better title over the subject lots,
petitioner's possession over the property must be respected.
Banes v. Lutheran Church of the Phils., 2005
It is true that petitioners Bañes and Del Rosario wrote LCP
expressing their willingness to voluntarily vacate the
premises upon finding another place to live in, but this is
after respondents had padlocked the premises and used
armed men to prevent their coming to and from the
premises. Otherwise stated, said letters do not negate the
initial use of force by respondents which constituted
forcible entry. It is undisputed that respondents owned the
property occupied by petitioners, still their use of force in
evicting petitioners therefrom was not justified.
Indeed, regardless of the actual condition of the title to the
property, the party in peaceable quiet possession shall not
be thrown out by a strong hand, violence or terror. The
owner who has title over the property cannot take the law
into his own hands to regain possession of said property. He
must go to court.
However, while we find that there was forcible entry in
this case, we cannot grant the prayer of petitioners-spouses
Bañes that they be restored to the subject premises. It is
established that they stayed on the property for free as
privilege of petitioner Elmer Bañes as a clergyman of LCP
and that after the initial forcible entry of respondents,
petitioner Elmer Bañes expressed, through his letter, his
willingness to vacate the property upon finding a new place
to live in and proposed that he stay in the Caloocan
property of respondent LCP. It is on record that the spouses
Bañes are now staying in another property owned by the
LCP in Caloocan City without paying rent. It can be said,
therefore, that they have lost their cause of action to ask for
restitution having transferred, as they have requested, to
another property of LCP without paying any rentals.
The situation is different insofar as petitioners spouses Del
Rosario and spouses San Ramon are concerned. Evidence do
not disclose that they asked for or were given by LCP
another place to stay in.
4. Possession as basis for acquiring ownership
Article 540. Only the possession acquired and enjoyed in the
concept of owner can serve as a title for acquiring dominion.
(447)
NOTES:
Under Article 540, possession acquired and enjoyed in the
concept of owner may ripen into ownership by means of
prescription. (see Art. 1118.) This is so even if the possessor
acted in bad faith. (see Arts. 1132-1137.)
Possession held in the concept of holder, as by a lessee,
depositary, agent, trustee, etc., cannot be the basis of
prescription, nor possession acquired through force or
intimidation (Art. 536.), merely tolerated, or which is not
public and is unknown to the present possessor. (Art. 537.)
Balatero v. IAC, 1987
The "constructive possession" over the parcel of land
mentioned by the appellate court did not ripen into
ownership. The rule is that only the possession acquired
and enjoyed in the concept of owner can serve as a title for
acquiring dominion. (Article 447, old Civil Code, Article
540, new Civil Code) As can be gleaned from the facts
earlier stated, Juan Veloso never owned the subject parcel of
land because the contract over the same between Josefa
Iglupas and Juan Veloso was actually an equitable mortgage
and not a contract of sale.
Munoz v. Yabut and Go Chan, 2011
We further stress that Section 48 of Presidential Decree No.
1529, otherwise known as the Property Registration Decree,
clearly provides that "[a] certificate of title shall not be
subject to collateral attack. It cannot be altered, modified or
cancelled except in a direct proceeding in accordance with
law." Herein, several Torrens titles were already issued after
the cancellation of Muñoz's. Certificates of title had been
successively issued to Emilia M. Ching, spouses Go, BPI
Family, and spouses Chan. Civil Case No. Q-28580, in
which a final judgment had already been rendered,
specifically challenged the validity of the certificates of title
of Emilia M. Ching and the spouses Go only. To have the
present certificate of title of the spouses Chan cancelled,
Muñoz must institute another case directly attacking the
validity of the same.
Adriano v. Pangilinan, 2002
Petitioner's act of entrusting and delivering his TCT and
Residence Certificate to Salvador was only for the purpose
of helping him find a money lender. Not having executed a
power of attorney in her favor, he clearly did not authorize
her to be his agent in procuring the mortgage. He only
asked her to look for possible money lenders
Director of Lands v. Heirs of Isabel Tesalona, 1994
The land is a swampy area covered by mangrove trees and
the like, these lots may very well be considered and
classified as forest lands. Moreover, well-entrenched is the
rule that possession of forest lands, no matter how long,
cannot ripen into private ownership. Its inclusion in a title,
whether the title be issued during the Spanish regime or
under the Torrens System, nullifies the title.
5. Indicia of ownership or possession
Tax declarations, assessment, or payment of tax as indicia of
ownership/possession
(1) Mere tax declarations of ownership do not vest or prove
ownership of the property in the declarant (Province of
Camarines Sur v. Director of Lands, 64 Phil. 613 [1937].)
nor are even sufficient to sustain a claim for possession over
a land (Director of Forestry v. Villareal, 170 SCRA 598
[1989].), in the absence of actual possession of the same (De
Luna v. Court of Appeals, 212 SCRA 276 [1992].) They are
merely an indicium of a claim of ownership. (Bartolome v.
Intermediate Appellate Court, 183 SCRA 102 [1990])
Nevertheless, they are good indicia of possession in the
concept of owner. (Alonzo v. Cebu Country Club, Inc., 375
SCRA 390 [2002])
The failure to declare a land for taxation is, of course, an
indication that the claimant does not believe himself to be
the owner. (Cruzado v. Bustos, 34 Phil. 17 [1916]) But the
mere fact that the tax declarations were issued in the name
of a co-owner whose children paid the real estate taxes on
the land for many years was held not sufficient to support
their claim of exclusive ownership of the entire land, it
appearing that the property was declared in the name of
such co-owner only for reasons of convenience and the
other co-owner never actually paid the real estate taxes
because he assumed that his share of such taxes was being
paid from his share in the fruits of his portion of the land
which he was not getting regularly, much less in full.
(Pangan v. Court of Appeals, 166 SCRA 375 [1988])
(2) Neither is tax assessment nor payment of realty tax on a
property conclusive proof of ownership; at most, it
constitutes mere prima facie proof of ownership or
possession of the property; yet it is also undeniable that the
payment of realty tax coupled with actual possession in the
concept of owner is one of the most persuasive and positive
indicia, which shows the will or desire of a person to
possess with claim of ownership or to obtain title to the
land or property on which such tax is imposed for no one in
his right mind would be paying taxes for a property that is
not in his actual or at least constructive possession.
(Republic v. Court of Appeals, 72 SCAD 178, 258 SCRA 712
[1996]; Heirs of C. Amarante v. Court of Appeals, 185 SCRA
585 1990]; Samson v. Court of Appeals, 145 SCRA 194
[1986]) In such case, tax receipts constitute evidence of
great weight and can be the basis of a claim of ownership
acquired through prescription. (Rojas v. Court of Appeals,
192 SCRA 709 [1990]; Tabuena v. Court of Appeals, 196
SCRA 650 [1991]; De Jesus v. Court of Appeals, 217 SCRA
307 [1993]; Cequeña v. Bolante, 124 SCAD 735, 330 SCRA
216 [2000]) Thus, in a case, possession for more than 30
years as shown by tax receipts was held sufficient to qualify
the possessors to register the land in question in their
names. (Samson v. Court of Appeals, supra; see San Miguel
Corporation v. Court of Appeals, 185 SCRA 722 [1990];
Serina v. Caballero, 436 SCRA 593 [2004])
Bartolome v. IAC, 1990
Furthermore, while it is true that the property had been
declared for tax purposes by Bernabe Bartolome and that,
subsequent to his death, taxes thereon were paid in the
name of his son, Dominador, ownership thereof had not
been acquired by Ursula Cid or her heirs. Aside from the
fact that said declarations and payments were made during
the pendency of the cadastral case, a tax declaration in the
name of the alleged property owner or of his predecessor-
in-interest, does not prove ownership. It is merely an
indicium of a claim of ownership. In the same manner,
neither does the payment of taxes conclusively prove
ownership of the land paid for
Alonso v. Cebu Country Club Inc., 2002
Cebu Country Club, Inc. was in possession of the land since
1931, and had been paying the real estate taxes thereon
based on tax declarations in its name with the title number
indicated thereon. Tax receipts and declarations of
ownership for taxation purposes are strong evidence of
ownership. This Court has ruled that although tax
declarations or realty tax payments are not conclusive
evidence of ownership, nevertheless, they are good indicia
of possession in the concept of owner for no one in his right
mind will be paying taxes for a property that is not in his
actual or constructive possession.
Republic v. CA, 1996
Although tax declarations or realty tax payments of
property are not conclusive evidence of ownership,
nevertheless, they are good indicia of possession in the
concept of owner for no one in his right mind would be
paying taxes for a property that is not in his actual or at
least constructive possession. They constitute at least proof
that the holder has a claim of title over the property. The
voluntary declaration of a piece of property for taxation
purposes manifests not only one's sincere and honest desire
to obtain title to the property and announces his adverse
claim against the State and all other interested parties, but
also the intention to contribute needed revenues to the
Government. Such an act strengthens one's bona fide claim
of acquisition of ownership.
Cequena v. Bolante, 2000
Respondent's possession was not disturbed until 1953 when
the petitioners' father claimed the land. But by then, her
possession, which was in the concept of 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 receipts and declarations of ownership for taxation,
when coupled with proof of actual possession of the
property, can be the basis of a claim for ownership through
prescription.
In contrast, the petitioners, despite thirty-two years of
farming the subject land, did not acquire ownership. It is
settled that ownership cannot be acquired 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.
Moreover, the petitioners cannot claim that their possession
was public, peaceful and uninterrupted.
Serina v. Caballero, 2004
Since the property has not been clearly identified by the
petitioners, their claim of acquisitive prescription cannot be
considered. Insufficient identification of the portion of land
claimed in absolute ownership cannot ripen into ownership.
Possession as a means of acquiring ownership, while it may
be constructive, is not a mere fiction.
The petitioners' argument that the payment of taxes on the
property since May 31, 1948 constitutes proof of their
possession of the subject land for thirty-five years is
untenable. Tax declarations and receipts are not conclusive
evidence of ownership. At most, they constitute mere prima
facie proof of ownership of the property for which taxes
have been paid. In the absence of actual, public and adverse
possession, the declaration of the land for tax purposes does
not prove ownership.
6. Just title
Article 541. A possessor in the concept of owner has in his
favor the legal presumption that he possesses with a just title
and he cannot be obliged to show or prove it. (448a)
NOTES:
Just title, as used in Article 541, does not always mean a
document or a written instrument. The possessor may prove
his title by witnesses. Thus, an oral contract of sale is just as
much a title as a written contract of sale. The words “or
prove’’ were inserted by the Code Commission after “show’’
to cover cases of oral contracts. (I Capistrano, op. cit., p.
501) Actual or constructive possession under claim of
ownership raises the disputable presumption of ownership.
(Art. 433.) In other words, a possession is presumed
ownership until the contrary is shown (3 Sanchez Roman
439.); or a possessor is presumed to have a just title, and he
cannot be obliged to show or prove it. (Olego v. Rebueno,
75 SCRA 446 [1975]) The reason for the presumption is to
protect the owner of property from inconvenience;
otherwise, he will always have to carry his titles under his
arms to show them anytime to whosoever may ask for it
and who, with or without reason, may bring a suit. (4
Manresa 248)
i. Onus Probandi
(1) The onus probandi is on the plaintiff
who seeks the recovery of property. (Bondad v.
Bondad, 34 Phil. 232 [1916]) Thus, a purchase
verbally made confers ownership upon the
possessor provided he holds himself out as the
owner until it is shown or proved that he is not.
(Heirs of Jumero v. Lizares, 17 Phil. 112 [1910])
However, where X, present possessor of property
claimed by Y, admits that the property used to
belong to Z from whom Y claims to derive his
right, X, in view of his admission of Z’s prior
ownership, must prove his just title to overcome
the contrary presumption in favor of Z’s prior
ownership even though X is in possession of the
property. (Sarita v. Candia, 23 Phil. 443 [1912])
(2) A person who is not, in fact, in possession
cannot acquire a prescriptive right to a land by the
mere assertion of a right therein. Where the
possessor is really the owner, the fact that a third
person questions his right does not impair said
right. An owner and possessor whose title is true
and valid (infra.) cannot be required to show that
his possession is or has been adverse as against a
new claimant who has neither title nor possession.
(Gamboa v. Gamboa, 52 Phil. 503 [1928])
ii. Different kinds of title
1) The just title presumed by the provision
is title which by itself is sufficient to transfer
ownership without need of possessing the property
for the period necessary for acquiring title by
prescription. It is title that is true and valid (titulo
verdadero y valido). (Art. 1130.) The presumption
of just title does not apply in acquisitive
prescription. The adverse possessor must prove his
just title. (Art. 1131.)

(2) For the purposes of prescription, there
is just title (titulo justo) when the adverse claimant
came into possession of the property through one
of the modes recognized by law for the acquisition
of ownership or other real rights, but the grantor
was not the owner or could not transmit any right
(Art. 1129.); and also for the purposes of
prescription, just title must be proved; it is never
presumed. (Art. 1130.)
(3) A colorable title (titulo colorado) is one
which a person has when he buys a thing in good
faith, from one who is not the owner but whom he
believes to be the owner. The just title required for
acquisitive prescription is not titulo verdadero y
valido but only titulo colorado. (Solis v. Court of
Appeals, 176 SCRA 678 [1989]; De Jesus v. Court of
Appeals, 217 SCRA 307 [1993]; see Arts. 1106,
1129, 1131, infra)
(4) A colorable title is to be distinguished
from putative title (titulo putativo), being one
which a person believes he has but in fact he has
not because there was no mode of acquiring
ownership, as when one is in possession of a thing
in the mistaken belief that it had been bequeathed
to him. (see Doliendo v. Biarnesa, 7 Phil. 232
[1906])
7. Inclusion of movables in possession
Article 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. (449)
NOTES:
Article 542 refers to material possession only of things;
rights are not covered. The possession may be in the
concept of owner or in the concept of holder, in one’s own
name or in another’s, or in good faith or in bad faith.
It is natural, it is normal, that movables which are found in
an immovable belong to the possessor of the latter. The
most frequent is that of the owner and the lessee of a
building. If the building is occupied by the owner, we can
suppose that all movables found therein are his. If the
building is occupied by the lessee, we can suppose the same
with respect to him because in this case the possessor is the
lessee, and it is not the custom that in the contract of lease,
movables are delivered with the building. It is not a case of
the accessory following the principal; if it were so, then the
building being owned by the lessor, the movables would
also belong to him.
On the contrary, the building being owned by the lessor,
the movables belong to the possessor, the lessee, for it is
supposed that he who needs the movables would introduce
them in the building. (4 Manresa 250-251.)
8. Continuity and interruption of possession
Article 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. (450a)
NOTES:
Exclusive possession of previous co-owner deemed
continuous
The article speaks of co-possession of a thing, not of co-
ownership. (Art. 484.) Nevertheless, its principle is
applicable to co-possession of a real right. The object of a
co-ownership as well as co-possession may be a thing or a
right such as usufruct. The rule enunciated in the first part
of Article 543 is derived from Article 493, and by
considering inherited property as a thing owned in
common, confirms the principle laid down in Article 1091.1
(4 Manresa 255.) It was held applicable with respect to
property held in common by co-heirs. (Beltran v. Dorinao,
32 Phil. 66 [1915])
All participants of a thing possessed in common constitute
only one personality and the personality ceases when there
is a partition. (see Art. 538.) From that moment of cessation,
the personality of each participant begins. By fiction of law,
each co-possessor is deemed (not merely presumed) to have
possessed exclusively and continuously during the period of
co-possession the part assigned to him in the division.
Stated another way, the effects of the division retroact to
the commencement of the co-possession.
But the division shall be without prejudice to the rights of
creditors. (see Art. 493.)
The above may be illustrated thus:
Suppose X, Y, and Z have been co-possessors in the concept
of owners of a fifteen (15) hectare parcel of land until they
divided the property equally on the 8th year. If on the 4th
year, after the division, T claims ownership of the portion
allotted to X, the latter can assert title by acquisitive
(ordinary) prescription through possession of ten (10), for
he is deemed to have possessed his portion exclusively and
continuously for a period of twelve (12) years.
Interruption in possession of the thing
Both the benefits and the prejudices that might have taken
place during the co-possession shall attach to each of the co-
participants. Thus, prescription obtained by a co-possessor
or co-owner shall benefit the others. (Art. 1111.)
Interruption in the possession of the whole or part of a
thing shall be to the prejudice of all the possessors. (Art.
543.)
Possession is interrupted for purposes of prescription either
naturally, i.e., when through any cause it should cease for
more than one (1) year; or civilly, i.e., when the
interruption is produced by judicial summons to the
possessor. (Arts. 1120, 1121, 1123) In civil interruption,
only those possessors served with judicial summons are
affected. This second part of the article may be illustrated as
follows:
In the same example above, if X, Y, and Z lose possession of
the whole land after five (5) years, then their possession
shall be reduced by three (3) years. The possession of X, Y,
and Z may have been exercised by themselves or through
an agent who takes charge of the cultivation of the property
for them. Now, if for some reason the agent lost possession
of three (3) hectares (1/5) of the land at the end of the 5th
year, possession of the remaining twelve (12) hectares (4/5)
continues without interruption.
If they have equal shares in the co-possession, their shares
in the remaining portion and the area lost shall also be in
equal shares; if their shares or interests are unequal then
they share in the same proportion. The interruption
prejudices all but not that they should share equally the
portion lost.
Note that the interruption, according to Article 543, must
refer to the whole thing itself or part of it and not to a part
or right of a co-possessor. In a co-possession, there is only
one thing and many possessors. If the right of a co-possessor
is contested, he alone shall be prejudiced. With respect to
the thing, the prejudice shall be against all. The reason
behind this is that the thing being undivided, it would be
unjust to make the injury to fall on only one co-possessor
although only the possession of a part of the thing may have
been interrupted. (see Manresa 257-258)
9. Rights of possessor in good faith to fruits received
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. (451)
NOTES:
The fruits of a thing generally belong to the owner (Art.
441.) but a possessor in good faith is entitled to the fruits
received until good faith ceases and bad faith begins. Legal
interruption of possession in good faith takes place upon
service of judicial summons to the possessor. (Mindanao
Academy, Inc. v. Yap, 13 SCRA 190 [1965]; see Art. 1123.)
Whenever there is cessation of good faith in the eyes of the
law (see Art. 545, par. 1.), whether by reason of the filing of
a complaint or not, possession in good faith should be
deemed legally interrupted from such cessation and not
merely from the service of judicial summons.
(1) Where there is no complaint. — To every
possessor in good faith there comes a time when he is
considered a possessor in bad faith. When the owner or
possessor with a better right comes along, when he becomes
aware that what he had taken for granted is at least
doubtful, and when he learns the grounds in support of the
adverse claim, good faith ceases. (Tacas v. Tobon, 53 Phil.
356 [1929]) Possession in good faith ceases from the
moment facts exist which show that the possessor is not
unaware that he possesses the thing improperly or
wrongfully. (Art. 528.)
A possessor in bad faith is not entitled to the fruits. He has
the duty to reimburse the fruits received including that
which the legitimate possessor could have received. (Art.
549.)
(2) Where there is a complaint. — Although he
may not have been convinced of it before, the possessor
becomes aware that his possession is unlawful from the time
he learns of the complaint, from the time he is summoned
to the trial. It is at this time that his possession is legally
interrupted, according to Article 1123, and from that time
be considered a possessor in good faith. (Mindanao
Academy, Inc. v. Yap, 13 SCRA 190 [1965]; Manotok
Realty, Inc. v. Tecson, 164 SCRA 587 [1988]; Tacas v.
Tobon, supra) Hence, all fruits that the possessor may
receive from the time that he is summoned, or when he
answers the complaint, must be delivered or paid by him to
the owner or lawful possessor. (Ortiz v. Kayanan, 92 SCRA
146 [1979]; see Calma v. Calma, 56 Phil. 102 [1931]; Cleto v.
Salvador, 11 Phil. 416 [1908])
Note that the right of the possessor in good faith is limited
to the fruits, referring to natural, industrial, and civil fruits
(see Art. 441.) Other things (e.g., building) belong to the
owner of the land. But the possessor in good faith is liable
for reasonable rents being civil fruits, from the time of the
interruption of good faith. (see Antonio v. Gonzales, [C.A.]
O.G. July, 1943, p. 687)
i. When fruits considered received (Art. 443, 449)
Art. 443. He who receives the fruits has the obligation to pay
the expenses made by a third person in their production,
gathering, and preservation. (356)
Art. 449. He who builds, plants or sows in bad faith on the
land of another, loses what is built, planted or sown without
right to indemnity. (362)
NOTES:
(1) In the case of natural and industrial fruits. —
They are considered received from the time they
are gathered or severed. Fruits gathered before
legal interruption belong to the possessor in good
faith. If the fruits are still ungathered or
unharvested, Article 545 applies. (see Arts. 443,
449.)
(2) In the case of civil fruits. — Their accrual, not
their actual receipt, shall determine when they are
considered received at the time that good faith is
legally interrupted. They are deemed to accrue
daily and belong to the possessor in good faith in
that proportion.
Thus, where the ownership of certain houses in
possession of X was declared by final judgment of
the court to belong to Z on May 21, the rents
accrued before May 21 should belong to X and
those accruing beginning May 21, to Z, although
 the rent was by the terms of the contract of lease
between X and the lessee payable in advance.
Portion of the rent which accrued before May 21
but received by Z on or subsequent to May 21
belongs to X. (see Waite v. William, Chandler &
Co., 5 Phil. 571 [1906])
10. Division of fruits and expenses
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. (452)
NOTES:
This article does not apply when the possessor is in bad
faith, the fruits are civil, or the fruits are natural or
industrial but they have been gathered or severed when
good faith ceases. A possessor in bad faith has no right
whatsoever to the fruits, gathered or pending, except only
necessary expenses for gathered fruits. (see Arts. 443, 449.)
Since civil fruits are produced day by day, Article 545 does
not apply to them. In the case of fruits already gathered at
the time good faith ceases, it is Article 544 that is applicable.
(1) Sharing of expenses and charges. — If there are
pending natural and industrial fruits at the time good faith
ceases, the two possessors shall share in the expenses of
cultivation and the charges (i.e., expenses made not on the
property itself but on account of it, such as taxes, interest on
mortgages) in proportion to the time of possession.
Thus, if at the time of receipt of the judicial summons, X,
has been in possession in good faith for six (6) months, and
the harvest was made three (3) months later by Y, the
owner, who continues in possession, the expenses and
charges shall be divided between X and Y in the proportion
of 6 to 3, or 2 to 1. Assuming the expenses incurred are as
follows:
(a) X = P1,000 and Y = P500. — They shall share the same
amount incurred by them.
(b) X = P500 and Y = P1,000. — In this case, X shall
reimburse Y P500 out of the net harvest.
(2) Sharing of fruits. — In the same example above,
the net harvest shall be divided in the same proportion of 2
to 1. Assuming the total harvest for the year is P7,500 and
the expenses are the same, the net proceeds of the harvest
after deducting the total expenses would amount to P6,000.
Hence, the sharing will be: X = P4,000 and Y = P2,000. In
other words, under (a) above, X would be able to recover
P5,000 and Y = P2,500, from the total harvest of P7,500;
under (b) above, X, P4,500 and Y, P3,000.
(3) Unjust enrichment may result. — Under Article
545, the expenses are not shared in proportion to what each
receives from the harvest. In certain cases, unjust
enrichment may result.
Suppose, in the first example, the period of possession and
the amount of cultivation expenses incurred are as follows:
X = 3 years and P1,000; Y = 6 years and P500. In this case, X
will get P2,000 and Y, P4,000 out of the net harvest. The
law says that the possessor shall have a right to a part of the
expenses for cultivation in proportion to the time of
possession. Therefore, X is entitled only to P500 of the
P1,500 cultivation expenses although he spent P1,000 while
Y is entitled to P1,000, although he spent only P500. Thus,
X would recover P2,500 (P2,000 + P500) and Y, P5,000
(P4,000 + P1,000) from the total harvest of P7,500, with Y
unjustly enriching himself to the extent of P500 of the
expenses. In effect, X would get only P2,000 from the net
harvest of P6,000 (P7,500 – P1,500) while Y would get
P4,000.
The more equitable rule is to make the sharing of the
expenses and charges in the same proportion that the
harvest is divided. On the basis of 1 to 2 proportion in favor
of Y, X’s share in the total harvest will be P2,500 and Y,
P5,000. Since X is entitled to reimbursement for the excess
of P500, the actual division of the total harvest will be: X =
P3,000 (P2,500 + P500) and Y = P4,500 (P5,000 – 500). By a
proportionate division of the net harvest of P6,000, X will
get P2,000 plus P500 (to be reimbursed by Y) or P2,500 and
Y, P4,500 less P1,000 (P500 cultivation expenses + P500 to
be reimbursed to X), or P3,500.
(4) Option of owner. — The owner or new
possessor who recovers possession has the option either to
pay the possessor in good faith indemnity for his cultivation
expenses (and charges) and his share in the net harvest or to
allow instead the possessor in good faith to finish the
cultivation and gathering of the growing fruits in lieu of
said indemnity. In case of refusal of the possessor in good
faith for any reason whatever to accept this concession, he
forfeits the right to be indemnified in any other manner.
(see Azarcon v. Eusebio, 105 Phil. 656 [1959].) This is
considered just because even if the possessor were to
continue in possession, he could not expect more. The
owner should exercise this option in case a loss, instead of
net proceeds, is probable. (I Capistrano, op. cit., p. 507)
(5) Where there are no fruits or fruits less than
expenses. — Since reimbursement for expenses would have
to come from the net harvest, if there is no net harvest
because there are no fruits or the fruits are less than the
expenses, the rule in Article 545 that the expenses shall be
borne in proportion to the period of possession cannot
apply. If the fruits are merely insufficient, the same should
be divided in proportion to their respective expenses.
If there are no fruits, each should bear his own expenses
subject to the right of the possessor in good faith to be
refunded for necessary expenses under Article 546, unless
the owner or new possessor exercises his option referred to
above.

11. Expenses
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 retention, the person who has
defeated him in the possession having the option of
refunding the amount of the expenses or of paying the
increase in value which the thing may have acquired by
reason thereof. (453a)
i. General rule on expenses
(1) Purpose of rules. — A person who
possesses a thing in the concept of owner may
incur necessary, useful, or luxurious expenses.
In order to administer complete justice between
the owner of land and the possessor in good faith
thereof, in such a way as neither the former nor
the latter may enrich himself of that which does
not belong to him, nor any one of them remain
prejudiced by the vagueness of the rules established
to give each one of them that to which they are
entitled, the law correctly employs the expressions
“necessary expenses,’’ “useful expenses’’ and
“expenditures for pure luxury or mere pleasure.’’
(2) Possessor in good faith entitled to
many rights. — The Civil Code gives the possessor
in good faith greater indemnity in case he has
incurred on the land necessary expenses than in
case he has only incurred useful expenses (Art.
546.) or those for pure luxury or mere pleasure, and
also greater indemnity in case said expenses are
useful than in case they are for pure luxury or mere
pleasure. (see Art. 448.) The reason is because
necessary expenses are incurred for the
preservation of the realty in order that it may
produce the natural, industrial, and civil fruits it
ordinarily produces; and expenses purely for
ostentation and mere pleasure are not considered
by the Civil Code as leading to the production of all
of the aforesaid three kinds of fruits but only of the
civil fruits. (Rivera v. Roman Catholic Church, 40
Phil. 717 [1920])
Article 546 does not specifically state how the
useful improvements should be determined.
Guided by the objective of Article 546, it is the
current market value of the improvements which
should be the basis of the reimbursement. The
right of the owner or new owner of the land to
retain the improvements while the corresponding
indemnity is not paid implies the tenancy or
possession in fact of the land on which they are
built, sown, or planted. The builder, etc. who is not
paid, is entitled to retain ownership of the
improvements and necessarily, the income
therefrom. (Pecson v. Court of Appeals, 61 SCAD
385, 244 SCRA 407 [1995])
(3) Possessor in bad faith generally
without rights. — The possessor in bad faith has no
rights except as provided in Articles 546 and 549,
the right to be refunded for necessary expenses and
the limited right of removal of improvements for
pure luxury. (infra.) No mere lessee can claim to be
a possessor or builder in good faith, i.e., one who
possesses in the concept of an owner. (Eusebio v.
Intermediate Appellate Court, 144 SCRA 148
[1988]; Maceda v. Court of Appeals, 176 SCRA 440
[1989]; Mantruiste Systems, Inc. v. Court of
Appeals, 179 SCRA 136 [1989])
ii. Right of possessor with respect to necessary
expenses
Concept of necessary expenses
Necessary expenses are expenses made for the
preservation of the thing or those which seek to
prevent the waste, deterioration, or loss of the
thing (see 4 Manresa 270-271.); or those without
which the thing would deteriorate or be lost.
(1) Among such expenses are:
(a) Those incurred for cultivation,
production and upkeep (Mendoza v. De Guzman,
52 Phil. 164 [1928].) and for repairs of a house
which was uninhabitable and almost in ruins
(Angeles v. Lozada, 54 Phil. 184 [1929].);
(b) Those incurred for ordinary repairs
required by the wear and tear due to the natural
use of the thing and are indispensable for its
preservation (Art. 592.) inasmuch as they do not
increase the value of the thing, but merely prevent
it from becoming useless (see 4 Manresa 270-271.);
and
(c) Taxes for which a co-owner may
compel the others to contribute.4 (see Art. 488.)
Under Article 2175, any person who is constrained
to pay the taxes of another shall be entitled to
reimbursement from the latter.
(2) Those incurred for the following are not
necessary expenses:
(a) For the filling in and leveling of a land
because it is not a repair (which implies the putting
of something back into the condition in which it
was originally) but an improvement in the
condition of the land (Alburo v. Villanueva, 7 Phil.
277 [1907].);
(b) In the construction of a house because
it is not necessary for the preservation of the land
(Valencia v. Ayala de Roxas, 13 Phil. 45 [1909].);
(c) In making improvement on a land by a
purchaser at a sheriff’s sale just to prevent
redemption (Flores v. Lim, 50 Phil. 738 [1927].);
(d) In paying the costs of litigation over
the property for they shall be borne by every
possessor (Art. 550.); and
(e) In introducing improvements consisting of the
addition of a dining, kitchen, closet and kitchen for
without them the house would have continued to
stand just as before. (Robles v. Lizarraga Hermanos,
42 Phil. 584 [1921])
(1) Right of reimbursement and retention. — If the
possessor is in good faith, he shall be entitled to be
refunded; furthermore, he may retain the thing
until he is reimbursed therefor. (see Castillo v.
Court of Appeals, 124 SCRA 808 [1983].) During
the period of retention, he cannot be obliged to pay
rent nor damages for refusing to vacate the
premises for he is merely exercising his right of
retention which has the character of a real right
registerable as an encumbrance on the certificate of
title. (Robles v. Lizarraga Hermanos, supra)
This principle applies as well to useful expenses.
But the retention right does not entitle the
possessor to the fruits of the thing. (see Ortiz v.
Kayanan, 92 SCRA 146 [1979].)
(2) Right of reimbursement without right of
retention. — If the possessor is in bad faith, he is
entitled only to a refund without right of retention
as a punishment for his bad faith. A possessor in
bad faith sued by the owner to recover the
property should file a counterclaim for the refund
of necessary expenses to which he is entitled;
otherwise, a subsequent action to recover the same
will be barred. This rule may not be applicable to a
possessor in good faith. (see Beltran v. Valbuena, 53
Phil. 697 [1929].)
(3) Right of removal. — A possessor, whether in
good faith or in bad faith, is not granted the right
of removal with respect to necessary expenses as
they affect the existence or substance of the
property itself.
iii. Right of possessor with respect to useful expenses
Useful expenses are expenses which add
value to a thing, or augment its income (Calagan v.
Court of First Instance of Davao, 95 SCRA 498
[1980]; Mendoza v. De Guzman, supra.), or
introduce improvements thereon or increase its
usefulness to the possessor, or better serve the
purpose for which it is intended. (see Robles v.
Lizarraga Hermanos, supra; Aringo v. Arenas, 14
Phil. 263 [1909])
Examples of useful expenses are those incurred:
(1) In levelling the ground, cutting down
the trees and removing the shrubbery (Tuquero v.
Valdez, [C.A.] 35 O.G. 1799; Alburo v. Villanueva,
supra.);
(2) In introducing improvements
consisting of a dining room, kitchen, closet and
ballroom, and a stable suitable as a coach house and
dwelling (Robles v. Lizarraga, supra.);
(3) In the construction of a fishpond as it
gives its owner benefits called industrial fruits
(Rivera v. Roman Catholic Archbishop of Manila,
40 Phil. 717 [1920].), or an irrigation system but
not including farming implements and work
animals which the possessor retains and which do
not remain on the land (Valenzuela v. Lopez, 51
Phil. 297 [1927].); and
(4) In the erection of a chapel as it satisfies
spiritual and religious yearnings and contributes to
the attainment of man’s higher destinies. “To
uphold the opposite view would be to reduce life to
a mere conglomeration of desires and lust when, as
a matter of fact, it is also a beautiful aggregate of
noble impulses and lofty ideals. But even from the
purely materialistic point of view, the chapel
certainly represents an increase in value on land on
which it is erected (useful improvements), for in
the hands of persons more practical than mystic,
the same way may be converted perfectly into a
warehouse, a schoolhouse, or even a dwelling
house.’’ (Gongon v. Tiangco, [C.A.] 36 O.G. 822)
(1) Right of reimbursement and retention or
removal. — If the possessor is in good faith, he has
also the right of reimbursement and retention, as
with regard to necessary expenses, or he may
remove them provided the removal can be done
without damage to the principal thing. (Art. 547.)
The rights of the possessor in good faith are subject
to the superior right of a prevailing party to
exercise his option either to pay the amount of the
expenses or the increase in value of the thing.
Where the owner and the possessor in good faith
have claims against each other, the court may order
offsetting after the parties have proved their
respective claims. The right to offset may exist but
the question of how much is to be offset is factual
in nature and needs to be proved by factual
evidence. (Ramel v. Aquino, G.R. No. 133208, July
31, 2006.)
(2) No right whatsoever. — If the possessor is in
bad faith, he has no right whatsoever, neither
refund nor retention nor removal, regarding useful
expenses. (see Arts. 449-451, 549; Angeles v.
Guevara, 109 Phil. 1105 [1960]; Tan Queto v. Court
of Appeals, 122 SCRA 206 [1983].)
(a) Useful expenses incurred during the
period of retention by a possessor in good faith are
to be considered in bad faith.
(b) One who possesses a land registered in
the name of another under the Torrens system
cannot be a possessor in good faith, the registration
being binding on the whole world. A Torrens title
issued pursuant to a court decree is uperior to a
homestead patent granted subsequent to such
decree. (Monte de Piedad v. Velasco, 61 Phil. 467
[1935])
(c) It has been held that possession of a lot
by lessees is not possession in good faith for
purposes of Article 546, and after the lessees
become co-owners thereof, no co-owner can claim
prior possession of any individual portion as to
entitle him to a refund of useful expenses made on
his share once the lot is finally partitioned.
(Eusebio v. Intermediate Appellate Court, 144
SCRA 154 [1986])
a. If in good faith
b. If in bad faith

Ramel v. Aquino, 2006
We cannot order an offsetting of the claims as did the trial
court and the appellate court. The evidence show that both
parties failed to prove their respective claims. In the
absence of evidence from both parties on their claims,
offsetting is improper. The right to offset may exist but the
question of how much is to be offset is factual in nature and
needs to be proved by proper evidence
iv. Useful improvements
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. (n)
a. Removal
(1) Possessor in good faith. — The right of removal
given to the possessor in good faith is subject to
two conditions:
(a) The removal can be done without
damage or injury to the principal thing (i.e., there
has been no real accession); and
(b) The prevailing party does not choose to
keep the improvements by refunding the expenses
incurred or paying the increase in value which the
thing may have acquired by reason thereof. (Art.
546.)
If the two conditions are present, the prevailing
party cannot refuse the possessor’s right to remove
but he cannot compel him to remove. The right is
purely potestative. If the first condition is not
present and the prevailing party does not choose to
reimburse the possessor in good faith, the latter has
no right to remove.
(2) Possessor in bad faith. — He cannot remove the
useful improvement even if the removal is possible
without injury to the principal thing. The rule is
different with respect to improvements for pure
luxury or mere pleasure. (see Art. 549.)
i. If in good faith
ii. If in bad faith
v. Expenses for pure luxury
Art. 548. Expenses for pure luxury or mere pleasure shall not
be refunded to the possessor in good faith; but he may
remove the ornaments with which he has embellished the
principal thing if it suffers no injury thereby, and if his
successor in the possession does not prefer to refund the
amount expended. (454)
NOTES:
Expenses for pure luxury or mere pleasure are
expenses not necessary for the preservation of a
thing nor do they increase its productivity
although they add value to the thing, but are
incurred merely to embellish the thing and for the
convenience or enjoyment of particular possessors.
They are expenses which are neither necessary nor
useful incurred to satisfy personal whims or
caprices of the possessor. An expense, however,
may be luxurious under certain circumstances or
with respect to particular persons but useful under
different conditions or as to other persons.
These expenses are sometimes referred to as
luxurious expenses, or ornamental expenses, or
expenses for pure ostentation. Examples are water
fountains or statues in gardens, swimming pools,
and wall paintings. The objects, as in useful
improvements, must have been incorporated to the
principal thing in a more or less permanent way
that their separation must necessarily reduce the
value of the thing not curable by ordinary repair.
(see Art. 548.)
a. Rights of possessor
(1) Right of removal without right of
reimbursement. — If the possessor is in good faith,
he is not entitled to refund but may remove the
ornaments on two conditions:
(a) The principal thing suffers no damage
or injury thereby; and
(b) The successor in possession does not
prefer to refund the amount expended.
(2) Right of reimbursement. — The possessor in
bad faith has the same rights above but the owner
or lawful possessor is liable only for the value of
the ornaments, in case he prefers to retain them, at
the time he enters into possession. (Art. 549.) Note
that neither the possessor in good faith nor the
possessor in bad faith is entitled to reimbursement
for luxurious expenses unless the prevailing party
decides to keep the improvements
NOTES: If the owner prefers to refund the amount
expended and the possessor is in bad faith, the
owner will only pay the value they may have at the
time he enters into possession but it should not
exceed the amount expended.
vi. Rights and liabilities of possessor in bad faith
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. (455a)
NOTES:
They may be summarized as follows:

(1) Fruits. — He is not entitled to the fruits.
(a) He must reimburse the value of fruits
received subject to Article 443;
(b) He has no right whatsoever with
respect to pending fruits (Art. 449.); and
(c) He must reimburse the value of fruits
which the legitimate possessor could have
received subject to Article 443.
Corollarily, a possessor in bad faith is bound to
account for the fruits received as well as those
which the lawful possessor should or might have
received. (Director of Lands v. Abagat, 53 Phil. 147
[1929])
(2) Necessary expenses. — He is only entitled to
reimbursement without a right of retention. (Art.
546, par. 1; see Art. 443.)
(3) Useful expenses. — He is not entitled to refund
(Art. 546, par. 2.) and forfeits the improvements.
(Art. 449.) The law does not give him the right of
removal.
Article 547 refers only to a possessor in good faith
while Article 549 speaks of luxurious expenses, not
useful expenses. It has been held, however, that if
the lawful possessor can retain the improvements
introduced by the possessor in bad faith for pure
luxury or mere pleasure only by paying the value
thereof at the time he enters into possession, as a
matter of equity, a possessor in bad faith should be
allowed to remove useful improvements (i.e.,
drainage construction, walled fence and bungalow)
unless the lawful owner or possessor chooses to pay
for their value at the time said improvements were
introduced. (Carbonell v. Court of Appeals, 69
SCRA 99 [1976])
Two subsequent cases have categorically ruled that
“the right given a possessor in bad faith to remove
improvements applies only to improvements for
pure luxury or mere pleasure’’ subject to the
provisions of Article 549. (Metropolitan
Waterworks and Sewerage System v. Court of
Appeals, 143 SCRA 623 [1986]; Sabido v.
Intermediate Appellate Court, 165 SCRA 498
[1988])
(4) Luxurious expenses. — Likewise, he is not
entitled to refund. He loses the improvements but
he is granted the limited right of removal, i.e., he
may remove them if it is possible without injury to
the principal thing and the lawful possessor does
not exercise his option.
In case the lawful possessor decides to retain the
improvements for pure luxury or pleasure, he shall
pay only the value they may have at the time he
enters into possession. The possessor in good faith
is reimbursed the amount expended if the option to
retain the improvements is exercised by the lawful
possessor (Art. 548.) which amount is ordinarily
higher than the value of the improvements at the
time possession is recovered because of
deterioration or wear and tear resulting from use or
any other reason. However, should the value be
higher than the amount expended and the
possessor is in bad faith, he is entitled to be paid
only the amount expended; otherwise, instead of
being punished for his bad faith, the law will be
giving him a greater right than a possessor in good
faith.
(5) Charges. — He shall share them with the owner
or lawful possessor in proportion to the time of
their possession. (Art. 545, pars. 1, 2.)
(6) Deterioration or loss. — He is always liable,
whether due to his fault or negligence, or due to a
fortuitous event. (Art. 552.)
(7) Others. — He is liable to the owner or lawful
possessor for an amount equal to a reasonable rent
for the use and occupation of the property. (Lerma
v. De la Cruz, 7 Phil. 581 [1907])
He is likewise liable for any other damage caused
to the property or suffered by the lawful possessor
arising from the possession. (see Arts. 20, 21, 2176)
MWSS v. CA, 1986
Moreover, under Article 546 of said code, only a possessor
in good faith shall be refunded for useful expenses with the
right of retention until reimbursed; and under Article 547
thereof, only a possessor in good faith may remove useful
improvements if this can be done without damage to the
principal thing and if the person who recovers the
possession does not exercise the option of reimbursing the
useful expenses. The right given a possessor in bad faith is to
remove improvements applies only to improvements for
pure luxury or mere pleasure, provided the thing suffers no
injury thereby and the lawful possessor does not prefer to
retain them by paying the value they have at the time he
enters into possession (Article 549, Id.).
Sabido v. IAC, 1988
It is clear that the private respondent has to remove all his
constructions over Lot "B" and vacate the premises. This is
his only option. Being adjudged in privy with the spouses
Dasals, he cannot avail himself of the rights granted to a
builder in good faith. He, therefore, must remove all his
useful improvements over Lot "B" at his own expense and if
the same have already been removed, he cannot be entitled
to the right of retention or to any reimbursement.
12. Costs of litigation
Art. 550. The costs of litigation over the property shall be
borne by every possessor. (n)
NOTES:
They are borne by the possessor of the property because
they redound to his benefit, the court action being
necessary to maintain his possession. “Every possessor’’
refers really to any possessor — in good faith or in bad faith,
in the concept of owner or holder, or in his own name or in
that of another. It does not include the prevailing party who
succeeds in the possession.
Under the Rules of Court (Sec. 1, Rule 142.), the costs of an
action shall, as a rule, be paid by the losing party. The court
may, however, for special reasons, adjudge that either shall
pay the costs, or that the same be divided, as may be
equitable.
13. Improvements/loss/deterioration
Art. 551. Improvements caused by nature or time shall
always inure 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. (457a)
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. (458)
NOTES:
Improvements caused by nature or time
Article 551 covers all the natural accessions mentioned in
Articles 457 to 465 which must follow the ownership of the
principal thing, and generally, all improvements that are
not due to the will of the possessor. No distinction is made
regarding the kind of possession.
The former possessor got the benefits from the property
during his possession. It is but just that the improvements
mentioned which take place after the possession is
recovered inure to the owner or lawful possessor. Hence, he
should not pay for them.
Liability for loss or deterioration
The rules are as follows:
(1) If the possessor is in good faith. —
(a) Before receipt of judicial summons, a possessor
in good faith is presumed to continue in the same
character. (Art. 529.) He is not liable to the owner
for damages caused to the property even if due to
his fault or negligence.
(b) After receipt of judicial summons, his good faith
is converted into bad faith. Nevertheless, he is
liable only in case of fraud or negligence
(foreseeing that he may lose the suit) but not for
damage due to a fortuitous event. Thus, a possessor
in good faith is liable only if it is proved that: 1) the
loss or deterioration occurred after judicial
summons; and 2) he is guilty of fraud or
negligence.
(2) If the possessor is in bad faith. — He is absolutely liable,
whether or not the loss or deterioration occurred before or
after receipt of judicial summons, and whether or not due to
a fortuitous event. Thus, the possessor in bad faith is liable
in every case until delivery is made to the lawful possessor
even if the deterioration was caused by a fortuitous event
and even before judicial summons, as punishment for his
bad faith.
Improvements which have ceased to exist
The rule contained in the above provision is just. The
improvements referred to were enjoyed by the possessor
alone. Having ceased to exist, the owner or lawful possessor
who came too late cannot benefit from them. But he is
liable for necessary expenses even if the thing for which
they were incurred no longer exists. Necessary expenses are
not considered improvements. (see Art. 546, par. 1.)
14. Losing possession, modes
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. (459)
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. (460a)
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. (461)
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. (462a)
NOTES:
Presumption of possession during intervening period
Article 554 contemplates a situation where a present
possessor is able to prove his possession of a property at a
prior period (e.g., 1980) but not his possession during the
intervening period (between 1980 and the present year). He
is presumed to have possessed the property continuously
without interruption, unless the contrary is proved. The
presumption is useful for purposes of prescription.
Modes of losing possession
This provision applies to both real and personal property
except No. (4) which obviously refers only to real property.
Article 556 is expressly made applicable only to movables.
(1) By abandonment. — “Abandonment’’ is the voluntary
renunciation of all rights which a person has over a thing
thereby allowing a third person to acquire ownership or
possession thereof by means of occupancy.
(2) By assignment. — “Assignment’’, as used, is understood
to mean the complete transmission of the thing or right to
another by any lawful manner. It may either be by onerous
or gratuitous title. The effect is that he who was the owner
or possessor is no longer so. Abandonment is always
gratuitous.
(3) By the destruction, total loss, or withdrawal from
commerce. — Destruction or total loss covers not only that
which is caused voluntarily or intentionally but also that
which is caused by accident. Under the Civil Code, a thing
is lost when it perishes, or goes out of commerce, or
disappears in such a way that its existence is unknown, or it
cannot be recovered. (Art. 1189.) So, loss is the broader
term including both destruction and withdrawal from
commerce.
(4) By possession of another for more than one year. — This
refers to possession de facto (possession as a fact or material
possession) and not de jure (legal right or real right of
possession).
(5) By recovery by lawful owner or possessor. — Possession
may also be lost when it is recovered from the person in
possession by the lawful owner in a reivindicatory action or
by the lawful possessor in an action to recover the better
right of possession.
15. Possessory acts of a mere holder
Art. 558. Acts relating to possession, executed or agreed to by
one who possesses a thing belonging to another as a mere
holder to enjoy or keep it, in any character, do not bind or
prejudice the owner, unless he gave said holder express
authority to do such acts, or ratifies them subsequently. (463)
NOTES:
The possessor referred to in Article 558 is the same
possessor mentioned in Article 525.
Acts relating to possession of a mere holder do not bind or
prejudice the possessor in the concept of owner unless said
acts were previously authorized or subsequently ratified by
the latter. (see Art. 1317.) Possession may be acquired for
another by a stranger provided there be subsequent
ratification. (Art. 532.)
16. Possession over movables
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. (464a)
NOTES:
If the possession of a movable property was acquired in bad
faith, no right thereto is acquired by the possessor. The
property may be recovered by the true owner or possessor
without reimbursement. If the acquisition was in good faith
(see Art. 1127.), below are the rules.
(1) Possession equivalent to a title. — Possession in
good faith of a movable is presumed ownership. It is
equivalent to a title. No further proof is necessary. This is
sometimes known as the doctrine of irrevindicability.
(Aznar v. Yapdiangco, 13 SCRA 486 [1965]) Thus, if X buys
in good faith books from Y, an impostor, who succeeded in
purchasing the books from Z by falsely identifying himself
and paying the price by means of a check which was
dishonored, the law establishes an actual right thereto in
favor of X. (EDCA Publishing & Distributing Corp. v.
Santos, 186 SCRA 614 [1990])
The rule is necessary “for purposes of facilitating
transactions on movable property which are usually done
without special formalities.’’ (Sotto v. Enage, [C.A.] 43 O.G.
5075 [1947]) The possessor’s title, however, is not absolute.
It is equivalent to title but is not title itself. (Tuazon &
Sampedro, Inc. v. Gimenea, [C.A.] 46 O.G. 1113 [1950]) It is
merely presumptive because it can be defeated by the true
owner.
(2) Where owner or possessor has lost or has been
unlawfully deprived of a movable. — These are the two
exceptions to the general rule of irrevindicability.
(3) Where the property was acquired at a public
sale. — 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 recover
without reimbursing the price paid therefor. (par. 2.)
A public sale is one where there has been a public notice of
the sale in which anyone is allowed to bid for the object he
desires to buy. Hence, the mere registration of a sale on the
books of a municipality such as that of a large cattle does
not confer a public character upon the sale agreed to
between two individuals only, without previous publication
of notice for general information in order that bidders may
appear. (U.S. v. Soriano, 12 Phil. 512 [1909]) The State does
not warrant the title of properties sold by the sheriff at
public auction or at an execution sale. (see Art. 1570.)
(4) When owner cannot recover. — It is a fundamental
doctrine of law that no one can give what he has not. Sale is
a derivative mode of acquiring ownership and the vendee
gets only such rights as the vendor had. The exceptions to
the rule are:
(a) Where the owner of the movable is, by
his conduct, precluded from denying the seller’s
authority to sell;
(b) Where the law enables the apparent
owner to dispose of the movable as if he were the
true owner thereof;
(c) Where the sale is sanctioned by
statutory or judicial authority;
(d) Where the sale is made at merchant’s
stores, fairs or markets (Art. 1505.);
(e) Where the seller has a voidable title
which has not been avoided at the time of the sale
to the buyer in good faith for value and without
notice of the seller’s defect of title (Art. 1506.);
 (f) Where recovery is no longer possible
because of prescription (Art. 1132.); and
(g) Where the possessor becomes the
owner of the thing in accordance with the
principle of finder’s keeper. (see Art. 719.)
Edu v. Gomez, 1984
It is clear from the provision of said Section 60 of Republic
Act 4136 that the Commissioner's right to seize and
impound subject property is only good for the proper
enforcement of lien upon motor vehicles. The Land
Transportation Commission may issue a warrant of
constructive or actual distraint against motor vehicle for
collection of unpaid fees for registration, re-registration or
delinquent registration of vehicles.
EDCA Publishing & Distributing Corp. v. Santos, 1990
One may well imagine the adverse consequences if the
phrase "unlawfully deprived" were to be interpreted in the
manner suggested by the petitioner. A person relying on the
seller's title who buys a movable property from him would
have to surrender it to another person claiming to be the
original owner who had not yet been paid the purchase
price therefor. The buyer in the second sale would be left
holding the bag, so to speak, and would be compelled to
return the thing bought by him in good faith without even
the right to reimbursement of the amount he had paid for it.
17. Possession of animals
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. (465)
NOTES:
Animals may be:
(1) Wild, or animals, whether terrestrial or aquatic, living in
a state of nature independently of and without the aid and
care of man;
(2) Domesticated or tamed, or animals which are wild or
savage by nature but have been subdued and made use of by
man and become accustomed to live in a tamed condition;
or
(3) Domestic or tame, or any of the various animals (e.g.,
dog, carabao, cow) which live and are born and reared,
under the control and care of man, lacking the instinct to
roam freely.
Wild animals may be the object of hunting. (Art. 713.) They
are possessed only if they are under one’s control.
Possession of wild animals is lost when they regain their
freedom or come under another’s control. Domesticated
animals are possessed if hey habitually return to the
premises of the possessor. (see Arts.715-716.)
18. Lawful recovery of possession unjustly lost
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. (466)
NOTES:
This article applies to both possession in good faith as well
as to possession in bad faith, but only if beneficial to the
possessor.
Thus, a possessor in good faith will be deemed to be in
continuous possession for purposes of prescription. (see Art.
554.) A possessor in bad faith is not liable for the fruits he
recovered during the time he was unlawfully deprived of
possession, for to consider him in possession continuously
would be prejudicial and not redound to his benefit. (4
Manresa 356)
The recovery of possession must be according to law, that is,
through legal means or by requesting the aid of competent
authorities (Bishop of Cebu v. Mangaron, 6 Phil. 286
[1906].); otherwise, the benefit of continuous and
uninterrupted possession during the intervening period
cannot be invoked.
VI. USUFRUCT
a. USUFRUCT IN GENERAL (Arts. 562-565)
Article 562. Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form and
substance, unless the title constituting it or the law otherwise
provides. (467)
Article 563. Usufruct is constituted by law, by the will of
private persons expressed in acts inter vivos or in a last will
and testament, and by prescription. (468)
Article 564. Usufruct may be constituted on the whole or a
part of the fruits of the thing, in favor of one or more
persons, simultaneously or successively, and 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. (469)
Article 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 two following Chapters shall be
observed. (470)
1. Definition
Article 562. Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form and
substance, unless the title constituting it or the law otherwise
provides. (467)
NOTES:
(1) Usufruct is defined in the above provision.

(2) Another definition states that it is “a real right,
of a temporary nature, which authorizes its holder to enjoy
all the benefits which result from the normal enjoyment of
another’s property, with the obligation to return, at the
designated time, either the same thing, or, in special cases,
its equivalent.’’ (De Buen, Derecho Comma., 3rd ed., 255.)
( 3) It is the right to enjoy the property of another
temporarily, including both the jus utendi (right to use) and
the jus fruendi (right to the fruits) (Eleizegui v. Manila
Lawn Tennis Club, 2 Phil. 309 [1909].), with the owner
retaining the jus disponendi or the power to alienate or
encumber the same. (see Art. 581.)
In essence, usufruct is nothing else but simply allowing one
to enjoy another’s property. (Moralidad v. Sps. D. and A.
Pernes, G.R. No. 152809, Aug. 3, 2006.)
2. Characteristics
They are as follows:
(1) It is a real right (whether registered or not in
the Registry of Property) of use and enjoyment;
(2) It is of temporary duration;
(3) It is transmissible; and
(4) It may be constituted on real or personal
property, consumable or non-consumable, tangible or
intangible, the ownership of which is vested in another.
A person cannot create a usufruct over his own property
and at the same time retain ownership of the same. For
usufruct is essentially jus in re aliena; and to be a
usufructuary of one’s own property is, in law, a
contradiction in terms and a conceptual absurdity. (Gaboya
v. Cui, 38 SCRA 85 [1971])
3. Classifications
Usufruct may be classified as follows:
(1) As to whether or not impairment of object is allowed:
(a) normal; and
(b) abnormal. (Art. 562.)
(2) As to origin:
(a) legal;
(b) voluntary; and
(c) mixed. (Art. 563.)
(3) As to number of usufructuaries:
(a) simple; and
(b) multiple, which may be either:
1) simultaneous; or
2) successive. (Ibid.; Art. 611.)
(4) As to terms or conditions:
(a) pure;
(b) with a term or period; and
(c) conditional. (Art. 564.)
(5) As to quality or kind of object:
(a) of things; and
(b) of rights. (Ibid.)
(6) As to quantity or extent of object:
(a) total; and
(b) partial. (Art. 564.)
(7) As to extent of owner’s patrimony:
(a) universal; and
(b) particular. (see Arts. 598, 599.)
4. Usufruct v. Lease
The distinctions are as follows:
(1) As to nature of right. — Usufruct is always a
real right (see Art. 572.), while lease is generally a personal
right;
(2) As to creator of right. — In usufruct, the person
creating the usufruct should be the owner or his duly
authorized agent, while in lease, the lessor may not be the
owner as when he is a sub-lessor (see Art. 1650.) or he is
only a usufructuary;
(3) As to origin. — Usufruct may be created by law,
by contract, by will of the testator, or by prescription (Art.
563.), while lease is generally created by contract (see Arts.
448, 1670 [implied new lease].);
(4) As to extent of enjoyment. — Usufruct covers,
as a rule, all the fruits and all the uses and benefits of the
entire property (see Art. 571.), while lease generally refers
to certain uses only, i.e., to those stipulated;
(5) As to cause. — Usufruct involves a more or less
passive owner who allows the usufructuary to enjoy the
object given in usufruct, while lease involves a more active
owner or lessor who makes the lessee to enjoy (10 Manresa
458.); and
(6) As to repairs and taxes. — In usufruct, the
usufructuary pays for ordinary repairs and taxes on the
fruits (see Arts. 592, 596.), while in lease, the lessee is not
generally under obligation to undertake repairs or pay taxes.
5. How created
Article 563. Usufruct is constituted by law, by the will of
private persons expressed in acts inter vivos or in a last will
and testament, and by prescription. (468)
NOTES:
Usufruct may be classified according to how it is created
into:
(1) Legal or that created by law or declared by law,
such as the usufruct of the parents over the property of
their unemancipated children;
(2) Voluntary or that created by will of the parties,
either by act inter vivos, such as contract or donation, or by
act mortis causa, such as in a last will and testament; and
(3) Mixed or that acquired by prescription, such as
where one believing himself the owner of the property of
an absentee, gave in his will the usufruct of the property to
his wife and the naked ownership to his brother, and the
wife possessed in good faith the property as usufructuary for
the requisite prescriptive period. (see 4 Manresa 375.) This
kind of usufruct is mixed because both the law and the
volition of the person (usufructuary) participate in its
creation.
6. Kinds
Article 564. Usufruct may be constituted on the whole or a
part of the fruits of the thing, in favor of one or more
persons, simultaneously or successively, and 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. (469)
NOTES:
Under Article 564, usufruct may be:
(1) As to extent of object:
(a) Total, if it is constituted on the whole of a thing;
or
(b) Partial, if it is constituted only on a part of a
thing;
(2) As to number of beneficiaries:
(a) Simple, if there is only one usufructuary; or
(b) Multiple, if there are several usufructuaries, and
the latter may be:
1) Simultaneous (at the same time); or
2) Successive (one after another);
(3) As to effectivity or extinguishment:
(a) Pure, if there is no term or condition;
(b) With a term, if there is a period which may be
either suspensive (from a certain day) or resolutory
(up to a certain day); or
(c) Conditional, if it is subject to a condition which
may be either suspensive (from the beginning of a
certain event) or resolutory (until the happening of
a certain event); and
(4) As to subject matter:
(a) Over things, if it involves tangible property; or
(b) Over rights, if it involves intangible property as
rights are, but the rights must not be strictly
personal or intransmissible; thus, the right to
receive support cannot be the subject matter of
usufruct.
b. RIGHTS OF THE USUFRUCTUARY (Arts. 566-582)
Article 566. 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 a stranger. (471)
Article 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
third persons, acquired either at the beginning or at the
termination of the usufruct. (472)
Article 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. (473)
Article 569. Civil fruits are deemed to accrue daily, and
belong to the usufructuary in proportion to the time the
usufruct may last. (474).
Article 570. Whenever a usufruct is constituted on the right
to receive a rent or periodical pension, whether in money or
in fruits, or 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 the preceding
article. (475)
Article 571. The usufructuary shall have the right to enjoy
any increase which the thing in usufruct may acquire
through accession, the servitudes established in its favor,
and, in general, all the benefits inherent therein. (479)
Article 572. The usufructuary may personally enjoy the thing
in usufruct, lease it to another, or alienate his right of
usufruct, even by a gratuitous title; but all the contracts he
may enter into as such usufructuary shall terminate upon the
expiration of the usufruct, saving leases of rural lands, which
shall be considered as subsisting during the agricultural year.
(480)
Article 573. Whenever the usufruct includes things which,
without being consumed, gradually deteriorate through wear
and tear, the usufructuary shall have the right to make use
thereof in accordance with the purpose for which they are
intended, and shall not be obliged to return them at the
termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of his fraud
or negligence. (481)
Article 574. Whenever the usufruct includes things which
cannot be used without being consumed, the usufructuary
shall have the right to make use of them under the obligation
of paying their appraised value at the termination of the
usufruct, if they were appraised when delivered. In case they
were not appraised, he shall have the right to return the
same quantity and quality, or pay their current price at the
time the usufruct ceases. (482)
Article 575. The usufructuary of fruit-bearing trees and
shrubs may make use of the dead trunks, and even of those
cut off or uprooted by accident, under the obligation to
replace them with new plants. (483a)
Article 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. (484a)
Article 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. (485)
Article 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. (486)
Article 579. The usufructuary may make on the property
held in usufruct such useful improvements or expenses for
mere pleasure as he may deem proper, provided he does not
alter its form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without damage
to the property. (487)
Article 580. The usufructuary may set off the improvements
he may have made on the property against any damage to the
same. (488)
Article 581. The owner of property the usufruct of which is
held by another, may alienate it, but he cannot alter its form
or substance, or do anything thereon which may be
prejudicial to the usufructuary. (489)
Article 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. (490)
1. As to fruits (Art. 566)
Article 566. 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 a stranger. (471)
i. As to civil fruits (Art. 569)
Article 569. Civil fruits are deemed to accrue daily, and
belong to the usufructuary in proportion to the time the
usufruct may last. (474).
a. Usufructuary leases property, rents how applied
(Art. 568)
Article 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. (473)
b. Usufruct constituted on certain rights (Art. 570)
Article 570. Whenever a usufruct is constituted on the right
to receive a rent or periodical pension, whether in money or
in fruits, or 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 the preceding
article. (475)
NOTES:
Because civil fruits accrue daily, they belong to the
usufructuary in proportion to the time the usufruct
lasts. (Art. 569.) Payments and benefits that accrue
after the termination of the usufruct belong to the
owner.
Since the making of profits is always uncertain, the
date of distribution of benefits (e.g., dividends) is
not fixed by business enterprises. But once decision
has been made to grant the benefits, the company
usually fixes the date when they shall be
distributed.
The date when the benefits accrue determines
whether they should belong to the usufructuary or
 to the owner. Article 570 applies whether or not
the date of distribution of benefits is fixed.
ii. As to natural and industrial fruits (Art. 567)
Article 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
third persons, acquired either at the beginning or at the
termination of the usufruct. (472)
a. Fruits growing at the beginning of the usufruct
They belong to the usufructuary who is not bound
to refund to the owner the expenses of cultivation
and production incurred for obviously the owner
delivered his property to the usufructuary in its
condition at the time without thought of being
reimbursed for such expenses or the parties must
have considered the matter in fixing the terms and
conditions of the usufruct as when it was created
by contract.
However, in case the expenses were incurred by
innocent third persons, the usufructuary under
Article 443, pursuant to the last paragraph of
Article 567, has the obligation to pay the expenses
made. (see Art. 545; see 4 Manresa 390-391.)
b. Fruits growing at the termination of the usufruct
They belong to the owner but he is bound to
reimburse the usufructuary the ordinary
cultivation expenses (see Art. 545.) out of the fruits
received. (see Art. 443.) If the expenses exceed the
proceeds of the growing fruits, the owner has no
obligation to reimburse the difference for the law
says “from the proceeds of the growing fruits.’’
Again, the rights of third person in good faith are
protected.
In connection with paragraph 2 of Article 567,
Manresa is of the opinion that if at the termination
of the usufruct, force majeure should prevent the
usufructuary from gathering the fruits, said fruits
shall belong to him and not to the naked owner.
He says that to give the fruits to the naked owner
would be tantamount to making the usufructuary
responsible for force majeure, condemning him to
lose fruits by causes independent of his will. If the
usufruct is terminated by the death of the
usufructuary then the fruits should go to his heirs.
(see 4 Manresa 389.)
2. As to hidden treasure (Art. 566, 438, 439)
Article 566. 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 a stranger. (471)
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 or 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.
3. As to increase which the thing in usufruct may acquire
(Art. 571)
Article 571. The usufructuary shall have the right to enjoy
any increase which the thing in usufruct may acquire
through accession, the servitudes established in its favor,
and, in general, all the benefits inherent therein. (479)
4. Transactions that the usufructuary may enter into (Art.
572)
Article 572. The usufructuary may personally enjoy the thing
in usufruct, lease it to another, or alienate his right of
usufruct, even by a gratuitous title; but all the contracts he
may enter into as such usufructuary shall terminate upon the
expiration of the usufruct, saving leases of rural lands, which
shall be considered as subsisting during the agricultural year.
(480)
NOTES:
The usufructuary may primarily enjoy the thing in usufruct,
that is, to possess the thing, use it, and receive its fruits.
(1) With respect to the thing in usufruct. — He may lease it
(Art. 568.) even without the owner’s consent (see Art. 590.)
but, not being the owner, the usufructuary, cannot alienate,
pledge or mortgage (see Art. 2085[2].) the thing itself. He
may sell future crops subject to the rule that those
ungathered at the time when the usufruct terminates
belong to the owner.
When the things given in usufruct cannot be used without
being consumed or were appraised when delivered, the
usufructuary may dispose of them. (see Art. 374.)
(2) With respect to the right of usufruct. — Since the
usufructuary is the owner of the right itself, he may
alienate, pledge, or mortgage it, even by gratuitous title. It
has been held that after a usufructuary has donated her
usufructuary right over certain properties, she cannot get it
back on the ground that she did not own the properties.
(Seifert v. Bachrach, 79 Phil. 748 [1947])
5. Abnormal usufructs (Art. 573 and 574)
Article 573. Whenever the usufruct includes things which,
without being consumed, gradually deteriorate through wear
and tear, the usufructuary shall have the right to make use
thereof in accordance with the purpose for which they are
intended, and shall not be obliged to return them at the
termination of the usufruct except in their condition at that
time; but he shall be obliged to indemnify the owner for any
deterioration they may have suffered by reason of his fraud
or negligence. (481)
Article 574. Whenever the usufruct includes things which
cannot be used without being consumed, the usufructuary
shall have the right to make use of them under the obligation
of paying their appraised value at the termination of the
usufruct, if they were appraised when delivered. In case they
were not appraised, he shall have the right to return the
same quantity and quality, or pay their current price at the
time the usufruct ceases. (482)
6. Usufruct on fruit-bearing trees and shrubs (Art. 575, 576)
Article 575. The usufructuary of fruit-bearing trees and
shrubs may make use of the dead trunks, and even of those
cut off or uprooted by accident, under the obligation to
replace them with new plants. (483a)
Article 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. (484a)
7. Usufruct of woodland and nurseries (Art. 577)
Article 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. (485)
8. Usufruct of judicial action to recover (Art. 578)
Article 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. (486)
9. As to useful or luxurious improvements made by
usufructuary (Art. 579)
Article 579. The usufructuary may make on the property
held in usufruct such useful improvements or expenses for
mere pleasure as he may deem proper, provided he does not
alter its form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without damage
to the property. (487)
Moralidad v. Pernes, 2006
By express provision of law, respondents, as usufructuary,
do not have the right to reimbursement for the
improvements they may have introduced on the property.
We quote Articles 579 and 580 of the Civil Code. Given the
foregoing perspective, respondents will have to be ordered
to vacate the premises without any right of reimbursement.
If the rule on reimbursement or indemnity were otherwise,
then the usufructuary might, as an author pointed out,
improve the owner out of his property. The respondents
may, however, remove or destroy the improvements they
may have introduced thereon without damaging the
petitioner's property.
i. Right to set-off improvements (Art. 580)
Article 580. The usufructuary may set off the improvements
he may have made on the property against any damage to the
same. (488)
NOTES: Necessary expenses are reimbursed as long as it is
spend for the capital and not to the usufruct.
“Set-off” means that even if the useful or luxurious
improvements can be removed, the usufructuary may
choose not to remove them to set-off its value against any
damage to the usufruct as a result of his fault or negligence.
10. Right of the naked owner to alienate property in usufruct
(Art. 581)
Article 581. The owner of property the usufruct of which is
held by another, may alienate it, but he cannot alter its form
or substance, or do anything thereon which may be
prejudicial to the usufructuary. (489)
11. Effect of usufruct of part of a common property (Art. 582)
Article 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. (490)
c. OBLIGATIONS OF THE USUFRUCTUARY (Arts.
583-602, 612)
Article 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. (491)
Article 584. The provisions of No. 2 of the preceding article
shall not apply to the donor who has reserved the usufruct of
the property donated, or to the parents who are
usufructuaries of their children's property, except when the
parents contract a second marriage. (492a)
Article 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. (493)
Article 586. Should the usufructuary fail to give security in
the cases in which he is bound to give it, the owner may
demand that the immovables be placed under administration,
that the movables be sold, 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 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. (494)
Article 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. (495)
Article 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. (496)
Article 589. The usufructuary shall take care of the things
given in usufruct as a good father of a family. (497)
Article 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. (498)
Article 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. (499a)
Article 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. (500)
Article 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. (501)
Article 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, the usufructuary may make
them; but he shall have a right to demand of the owner, at
the termination of the usufruct, the increase in value which
the immovable may have acquired by reason of the repairs.
(502a)
Article 595. The owner may construct any works and make
any improvements of which the immovable in usufruct is
susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminution in the
value of the usufruct or prejudice the right of the
usufructuary. (503)
Article 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. (504)
Article 597. The taxes which, during the usufruct, may be
imposed directly on the capital, shall be at the expense of the
owner.
If the latter has paid them, the usufructuary shall pay him
the proper interest on the sums which may have been paid in
that character; and, if the said sums have been advanced by
the usufructuary, he shall recover the amount thereof at the
termination of the usufruct. (505)
Article 598. If the usufruct be constituted on the whole of a
patrimony, and if at the time of its constitution the owner
has debts, the provisions of articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to 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. (506)
Article 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 not 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. (507)
Article 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. (509)
Article 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.
(511)
Article 602. The expenses, costs and liabilities in suits
brought with regard to the usufruct shall be borne by the
usufructuary. (512)
Article 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.
(522a)
1. Before the usufruct begins (Art. 583)
Article 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. (491)
i. Making of inventory
The making of an inventory is not necessary before the
commencement of the right of the usufructuary or the
coming into existence of the usufruct but is merely a
condition to be complied with before the usufructuary may
enter into the possession and enjoyment of the property.
(see 3 Sanchez Roman 574-575.)
(1) Previous notice to be given. — In the making of
the inventory, the concurrence of the naked owner is not
required. Under the law, it is sufficient that he is notified of
such fact personally or through a legitimate representative.
Note that the law says “legitimate,’’ not legal representative,
so that notice may be given in proper cases to the owner’s
parents, spouse, guardian, administrator, or agent. The
owner has the right to ask for the correction of any error he
may find later. (see 4 Manresa 451-452.)
(2) Expenses of inventory. — The expenses of the
inventory should be borne by the usufructuary. The reason
is that it is his duty to make the same.
(3) Form of inventory. — Article 583 does not
provide for the form of inventory. It may, therefore, be
contained in a private document. However, a public
instrument is necessary to affect third persons when there
are immovables. (see Art. 1358[2].)
(4) Contents of inventory. — The inventory shall
contain an itemized list and an appraisal of the movables
and description of the condition of the immovables. The
movables must be appraised because, compared to
immovables, they are subject to greater danger of loss and
deterioration. Both kinds of property must be properly
identified.
a. When obligation excused (Art. 585)
Article 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. (493)
NOTES:
The usufructuary may be excused from the obligation in the
following cases:
(1) Where the naked owner renounces or
waives his right to the inventory or security;
(2) Where the title constituting the
usufruct relieves the usufructuary from the
obligation; and
(3) Where the usufructuary asks that he be
exempted from the obligation and no one will be
injured thereby.
No. (2) is frequently true in usufructs constituted by a last
will and testament or by a deed of donation in view of the
trust which the testator or donor has in the usufructuary.
Under No. (3), the usufructuary may apply to the courts for
relief in case the naked owner refuses to grant the
exemption where, for example, the usufruct is over the
right to receive a periodic income (e.g., rent) or pension. No
one will be injured by the exemption because the property
itself or the capital is not delivered to the usufructuary. (see
4 Manresa 464-467.)
ii. Give security
The purpose of the giving of security or bond is to insure
the fulfillment by the usufructuary of the obligations
imposed upon him including the duty to return to the
owner the thing in usufruct upon the termination of the
usufruct.
The law does not specify the kind of security that should be
given. Hence, the security may be in the form of cash, a
personal bond, pledge, or mortgage as long as it is sufficient.
a. When obligation to give security inapplicable
(Art. 584)
Article 584. The provisions of No. 2 of the preceding article
shall not apply to the donor who has reserved the usufruct of
the property donated, or to the parents who are
usufructuaries of their children's property, except when the
parents contract a second marriage. (492a)
b. Effects of failure to give security (Art. 586)
Article 586. Should the usufructuary fail to give security in
the cases in which he is bound to give it, the owner may
demand that the immovables be placed under administration,
that the movables be sold, 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 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. (494)
NOTES:
(1) On rights of owners. — Where the obligation to
give security or to file a bond is not excused or exempted,
the failure of the usufructuary to comply with the same
entitles the naked owner for his protection to demand that
immovables be placed under administration or receivership,
movables be sold, credit instruments be converted into
registered certificates or deposited, and cash and profits be
invested but the interest (12% per annum) on the proceeds
of sale of movables and credit instruments, and the net
proceeds of immovables placed under administration shall
belong to the usufructuary. The naked owner gets the
proceeds of the sale of movables and credit instruments.
The potestative right of retention and administration given
to the owner in paragraph 3 subsists until the usufructuary
gives security or is excused from so doing. The owner,
however, may choose not to exercise this right and deliver
the property to the usufructuary without renouncing his
right to later on demand the security.
(2) On rights of usufructuary. — Until he gives the
proper security, the usufructuary cannot enter upon the
possession and enjoyment of the property. Under Article
599, he may not collect any matured credits nor invest
capital in usufruct without the consent of the owner or
judicial authorization. The failure, however, to give security
does not extinguish the right of usufruct. (see Art. 603.)
Hence, the usufructuary may alienate his right to the
usufruct.
It is to be noted that Article 586, like Article 584, speaks
only of “security.’’ It would seem that the failure of the
usufructuary to make an inventory, when not excused, does
not have the same effect as when security is not given. The
owner can always demand the inventory and hold the
usufructuary liable for whatever prejudice caused by his
failure to make the same.
c. In lieu of security (Art. 587)
Article 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. (495)
NOTES:
This article applies when the usufructuary who is under
obligation to give security cannot afford to do so and no one
is willing to give security for them.
(1) The court, on humane consideration (as when a
poor family badly in need of a house acquires the same in
usufruct by inheritance or donation), may allow the
usufructuary to enjoy the property upon taking an oath —
“by virtue of a promise under oath’’ (caucion juratoria) — to
take care of the property (Art. 589.), and retain it until the
termination of the usufruct (Art. 612) in lieu of giving
security. So, the usufructuary cannot alienate or lease the
property under a sworn undertaking, for this means that he
does need it. (4 Manresa 473-474.)
(2) The usufructuary must first ask the naked
owner to grant him the rights mentioned, and should the
latter refuse, he may resort to the courts.
Articles with artistic or sentimental value may not be sold.
(Art. 586) The owner may demand their delivery to him if
he gives security to the usufructuary for the payment of the
legal interest on their appraised value.
2. During the usufruct
i. To take care of the property (Art. 589)
Article 589. The usufructuary shall take care of the things
given in usufruct as a good father of a family. (497)
ii. Liability for fault or negligence of substitute (Art.
590)
Article 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. (498)
NOTES:
The usufructuary is the owner of the right of usufruct. He
may, therefore, alienate or lease his right. (Art. 572.)
However, the usufructuary shall be liable to the owner for
any damage which the property in usufruct may suffer
through the fault or negligence (also fraud or willful acts) of
the substitute without prejudice to his right of action
against the latter.
iii. To replace things in usufruct (Art. 591)
Article 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. (499a)
iv. To make repairs
a. Ordinary repairs (Art. 592)
Article 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. (500)
b. Extraordinary repairs (Art. 593, 594)
Article 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. (501)
Article 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, the usufructuary may make
them; but he shall have a right to demand of the owner, at
the termination of the usufruct, the increase in value which
the immovable may have acquired by reason of the repairs.
(502a)
NOTES:
Meaning of extraordinary repairs — They are repairs which
are not ordinary. By implication from the definition of
ordinary repairs in Article 592, the following are
extraordinary repairs:
(a) Those required by the wear and tear
due to the natural use of the thing but not
indispensable for its preservation;
(b) Those required by the deterioration of
or damage to the thing caused by exceptional
circumstances but not indispensable for its
preservation; and
(c) Those required by the deterioration of
or damage to the thing caused by exceptional
circumstances and are indispensable for its
preservation.
i. To notify naked owner (Art. 593)

v. Permit works and improvements by naked owner
(Art. 595)
Article 595. The owner may construct any works and make
any improvements of which the immovable in usufruct is
susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminution in the
value of the usufruct or prejudice the right of the
usufructuary. (503)
vi. To pay annual taxes or charges (Art. 597)
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. (504)
Article 597. The taxes which, during the usufruct, may be
imposed directly on the capital, shall be at the expense of the
owner.
If the latter has paid them, the usufructuary shall pay him
the proper interest on the sums which may have been paid in
that character; and, if the said sums have been advanced by
the usufructuary, he shall recover the amount thereof at the
termination of the usufruct. (505)
vii. To pay debts when the usufruct is constituted on
the whole of a patrimony (Art. 598)
Article 598. If the usufruct be constituted on the whole of a
patrimony, and if at the time of its constitution the owner
has debts, the provisions of articles 758 and 759 relating to
donations shall be applied, both with respect to the
maintenance of the usufruct and to 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. (506)
NOTES:
Article 598 applies to a universal usufruct or one which
covers the entire patrimony of the owner, and at the time of
its constitution, by donation or any other acts inter vivos,
he has debts, whether secured or unsecured, or is bound to
make periodical payments even if, in the latter case, there
should be no known capital. The liability of the
usufructuary for the debts of the naked owner is the same as
that of the donee under Articles 758 and 759.
(1) When there is a stipulation for the payment by the
usufructuary of the debts of the owner, the former is liable
only for debts contracted by the latter before the
constitution of the usufruct.
(2) In the absence of stipulation, the usufructuary shall be
responsible only when the usufruct was created in fraud of
creditors which is always presumed when the owner did
not reserve sufficient property to pay his debts prior to the
creation of the usufruct. (see Art. 1387.)
viii. To secure the naked owner’s or court’s approval
to collect credits in certain cases (Art. 599)
Article 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 not 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. (507)
NOTES:
(1) If the usufructuary has given sufficient security,
he may claim matured credits forming part of the usufruct,
collect them, and use and invest, with or without interest,
the capital he has collected, in any manner he may deem
proper.
(2) If he has not given security, or that given is not
sufficient, or he has been excused from giving security (see
Arts. 584, 585, 587.) he may collect the credits and invest
the capital which must be at interest, with the consent of
the naked owner or approval of the court. The credits
themselves which constitute the capital belong to the naked
owner but the usufructuary has the right to use and invest
them, and to receive the interest therefrom.
In every case, the investment of capital must be with
sufficient security to preserve its integrity.
ix. To notify owner of any prejudicial act committed
by third persons (Art. 601)
Article 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.
(511)
x. To pay court expenses and costs regarding the
usufruct (Art. 602)
Article 602. The expenses, costs and liabilities in suits
brought with regard to the usufruct shall be borne by the
usufructuary. (512)
xi. Usufruct of mortgaged immovables (Art. 600)
Article 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. (509)

3. At the termination of the usufruct
i. To return the thing in usufruct (Art. 612)
Article 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.
(522a)
ii. To pay legal interest for the time that the usufruct
lasts, on the amount spent by the owner for
extraordinary repairs (Art. 594) and the proper
interest on the sums paid as taxes by the owner (Art.
597)
Article 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, the usufructuary may make
them; but he shall have a right to demand of the owner, at
the termination of the usufruct, the increase in value which
the immovable may have acquired by reason of the repairs.
(502a)
Article 597. The taxes which, during the usufruct, may be
imposed directly on the capital, shall be at the expense of the
owner.
If the latter has paid them, the usufructuary shall pay him
the proper interest on the sums which may have been paid in
that character; and, if the said sums have been advanced by
the usufructuary, he shall recover the amount thereof at the
termination of the usufruct. (505)
iii. To indemnify the naked owner for any losses due
to his negligence or his transferees (Art. 589-590)
Article 589. The usufructuary shall take care of the things
given in usufruct as a good father of a family. (497)
Article 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. (498)
d. EXTINGUISHMENT OF THE USUFRUCT (Arts.
603-612)
Article 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a
contrary intention clearly appears;
(2) By the expiration of the period for which it was
constituted, or by the 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. (513a)
Article 604. If the thing given in usufruct should be lost only
in part, the right shall continue on the remaining part. (514)
Article 605. Usufruct cannot be constituted in favor of a
town, corporation, or association for more than fifty 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. (515a)
Article 606. A usufruct granted for the time that may elapse
before a third person attains a certain age, shall subsist for
the number of years specified, even if the third person
should die before the period expires, unless such usufruct has
been expressly granted only in consideration of the existence
of such person. (516)
Article 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. (517)
Article 608. If the usufructuary shares with the owner the
insurance of the tenement given in usufruct, the former
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 latter
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. (518a)
Article 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. (519)
Article 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, the latter 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. (520)
Article 611. A usufruct constituted in favor of several persons
living at the time of its constitution shall not be extinguished
until the death of the last survivor. (521)
Article 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.
(522a)
1. Modes of extinguishment (Art. 603)
Article 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a
contrary intention clearly appears;
(2) By the expiration of the period for which it was
constituted, or by the 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. (513a)
NOTES:
Besides those enumerated in Article 603, other causes for
extinguishment of usufruct are annulment or rescission of
the contract creating the usufruct, mutual consent, and
special causes provided for by other legal provisions, such as
emancipation of a child (by attainment of age of majority or
marriage of a minor) which terminates parental usufruct
over the property of the child. (see Arts. 225, 226, 234,
Family Code.)
Buluran v. Navarro, 1977
With the material possession being the only one
transferred, all that the parties acquired was the right of
usufruct which in essence is the right to enjoy the property
of another. Under the document in question, spouses
Paraiso would harvest the crop of the unirrigated riceland
while the other party, Avelino Baluran, could build a house
on the residential lot, subject, however, to the condition,
that when any of the children of Natividad Paraiso
Obedencio, daughter of spouses Paraiso, shall choose to
reside in the municipality and build his house on the
residential lot, Avelino Baluran shall be obliged to return
the lot to said children "with damages to be incurred."
(Condition No. 2 of the Agreement) Thus, the mutual
agreement — each party enjoying "material possession" of
the other's property — was subject to a resolutory condition
the happening of which would terminate the right of
possession and use.
2. Effect of partial loss (Art. 604)
Article 604. If the thing given in usufruct should be lost only
in part, the right shall continue on the remaining part. (514)
3. Usufruct in favor of juridical or non-juridical entities (Art.
605)
Article 605. Usufruct cannot be constituted in favor of a
town, corporation, or association for more than fifty 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. (515a)
NHA v. CA, 2005
The law clearly limits any usufruct constituted in favor of a
corporation or association to 50 years. A usufruct is meant
only as a lifetime grant. Unlike a natural person, a
corporation or association's lifetime may be extended
indefinitely. The usufruct would then be perpetual. This is
especially invidious in cases where the usufruct given to a
corporation or association covers public land. Proclamation
No. 1670 was issued 19 September 1977, or 28 years ago.
Hence, under Article 605, the usufruct in favor of MSBF has
22 years left.
4. Usufruct with duration dependent on age of a third person
(Art. 606)
Article 606. A usufruct granted for the time that may elapse
before a third person attains a certain age, shall subsist for
the number of years specified, even if the third person
should die before the period expires, unless such usufruct has
been expressly granted only in consideration of the existence
of such person. (516)
NOTES: An example when the usufruct is expressly granted
only in consideration of the existence of a person is when
the usufructuary will use the usufruct for the support of
such person.
5. Where usufruct on land and building, and building
destroyed (Art. 607)
Article 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. (517)
NOTES:
The same rule applies although the usufruct does not cover
the land for the simple reason that the use of the building
necessarily involves the use of the land.
But for the very reason that the land is not included in the
usufruct, the owner is given the preferential right to
construct another building, occupy the land and make use
of the material even against the objection of the
usufructuary. The only right of the usufructuary is to
receive during the continuance of the usufruct, legal
interest on the value of the land and of the materials. (par.
2; see Lopez v. Constantino, 74 Phil. 160 [1943]; Vda. de
Albar v. Carandang, supra.)

6. Payment of cost and insurance (Art. 608)

Article 608. If the usufructuary shares with the owner the

insurance of the tenement given in usufruct, the former
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 latter
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. (518a)

7. Expropriation of thing in usufruct (Art. 609, 610)

Article 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. (519)

Article 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, the latter 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. (520) VII. EASEMENT OR SERVITUDES

8. Usufruct in favor of several persons (Art. 611) a. EASEMENTS IN GENERAL (Arts. 613-633)

Article 611. A usufruct constituted in favor of several persons Article 613. An easement or servitude is an encumbrance
living at the time of its constitution shall not be extinguished imposed upon an immovable for the benefit of another
until the death of the last survivor. (521) immovable belonging to a different owner.

Policarpio v. Asuncion, 1966
If the theory of appellee in the sense that the death of the
three usufructuaries has the effect of consolidating their
rights with that of the naked owner were correct, Article
611 of the Civil Code would be superfluous, because Article
603 already provides that the death of the usufructuary
extinguishes the usufruct unless the contrary appears.
Furthermore, said theory would cause a partial extinction of
the usufruct, contrary to the provisions of Article 611
which expressly provides that the usufruct shall not be
extinguished until the death of the last survivor. The theory
of appellee cannot, therefore, be entertained.
The immovable in favor of which the easement is established
is called the dominant estate; that which is subject thereto,
the servient estate. (530)
Article 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. (531)
Article 615. Easements may be continuous or discontinuous,
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. (532)
Article 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, and a negative easement, that
which prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement did
not exist. (533)
Article 617. Easements are inseparable from the estate to
which they actively or passively belong. (534)
Article 618. Easements are indivisible. If the servient estate is
divided between two 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 two 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. (535)
Article 619. Easements are established either by law or by
the will of the owners. The former are called legal and the
latter voluntary easements. (536)
SECTION 2
Modes of Acquiring Easements
Article 620. Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten years.
(537a)
Article 621. In order to acquire by prescription the
easements referred to in the preceding article, the time of
possession shall be computed thus: 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 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. (538a)
Article 622. Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, may be
acquired only by virtue of a title. (539)
Article 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. (540a)
Article 624. The existence of an apparent sign of easement
between two estates, established or maintained by the owner
of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue
actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided in
the title of conveyance of either of them, or 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. (541a)
Article 625. Upon the establishment of an easement, all the
rights necessary for its use are considered granted. (542)
Article 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. (n)
SECTION 3
Rights and Obligations of the Owners of the Dominant and
Servient Estates
Article 627. The owner of the dominant estate may make, at
his own expense, on the servient estate 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. (543a)
Article 628. Should there be several dominant estates, the
owners of all of them shall be obliged to contribute to the
expenses referred to in the preceding article, in proportion to
the benefits which each may derive from the work. Anyone
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. (544)
Article 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, the
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may be
changed at his expense, provided he offers another place or
manner equally convenient and 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. (545)
Article 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. (n)
SECTION 4
Modes of Extinguishment of Easements
Article 631. Easements are extinguished:
 (1) By merger in the same person of the ownership
of the dominant and servient estates;
(2) By nonuser for ten years; with respect to
discontinuous easements, this period shall be
computed from the day on which they ceased to be
used; and, with respect to 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. (546a)
Article 632. The form or manner of using the easement may
prescribe as the easement itself, and in the same way. (547a)
Article 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. (548)
1. Easement or Servitude, defined (Art. 613)
Article 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. (530)
NOTES:
The definition given in Article 613 is not complete, being
limited to real easement. In view of Article 614 which
refers to personal easement, the term may be defined as an
encumbrance imposed upon an immovable for the benefit
of another immovable belonging to a different owner or for
the benefit of a community or one or more persons to
whom the encumbered estate does not belong by virtue of
which the owner is obliged to abstain from doing or to
permit a certain thing to be done on his estate.
Easement is an English law term while servitude, which is
derived from Roman Law is the name used in civil law
countries. However, they do not exactly have the same
meaning. Servitude is the broader term. It may be real or
personal. Easement is always real. It is said that easement
refers to the right enjoyed by one, and servitude, the
burden imposed upon another. (I Bouvier’s Law Dictionary,
p. 967.)
2. Characteristics (Art. 617, 618)
Article 617. Easements are inseparable from the estate to
which they actively or passively belong. (534)
Article 618. Easements are indivisible. If the servient estate is
divided between two 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 two 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. (535)
NOTES:
They are as follows:
(1) It is a real right but will affect third persons
only when duly registered;
(2) It is enjoyed over another immovable, never on
one’s own property;
(3) It involves two neighboring estates (in the case
of real easement), the dominant to which a right belongs
and the servient upon which an obligation rests;
(4) It is inseparable from the estate to which it is
attached and, therefore, cannot be alienated independently
of the estate (Art. 617.);
(5) It is indivisible for it is not affected by the
division of the estate between two or more persons (Art.
618.);
(6) It is a right limited by the needs of the
dominant owner or estate, without possession;
(7) It cannot consist in the doing of an act unless
the act is accessory in relation to a real easement; and
(8) It is a limitation on the servient owner’s rights
of ownership for the benefit of the dominant owner; and,
therefore, it is not presumed.
Easement gives the holder an incorporeal right on the land
but grants no title thereto. Therefore, an acknowledgment
of the easement is an admission that the property belongs to
another. (Bogo-Medellin Co., Inc. v. Court of Appeals, 407
SCRA 518 [2005], citing 2 Tolentino, Civil Code, 353-354
[1992].)
3. Vs. Lease
They are as follows:
(1) Easement is a real right, whether registered or
not, and whether it is real or personal, while lease is a real
right only when it is registered, or when its subject matter
is real property and the duration exceeds one year (see Art.
1878[8].);
(2) Easement is imposed only on real property,
while lease may involve either real or personal property;
and
(3) In easement, there is a limited right to the use
of real property of another but without the right of
possession, while in lease, there is a limited right to both
the possession and use of another’s property.
The last distinction has been illustrated as follows: “There
are two distinct methods in which I may acquire a road
across another man’s property. I may agree with him for the
exclusive possession of a defined strip land; or I may agree
with him for the use of such a strip for the sole purpose of
passage, without any exclusive possession or occupation of
it. In the first case, I acquire a lease; in the second, a
servitude.’’ (Salmond, Jurisprudence, p. 459)
4. Vs. Usufruct
The distinctions are the following:
(1) Easement is imposed only on real property,
while usufruct may involve either real or personal property;
(2) Easement is limited to a particular or specific
use (e.g., right of way) of the servient estate, while usufruct
includes all the uses (jus utendi) and the fruits (jus fruendi)
of the property;
(3) Easement is a non-possessory right over an
immovable, while usufruct involves a right of possession in
an immovable or movable; and
(4) Easement is not extinguished by the death of
the dominant owner, while usufruct is, as a rule,
extinguished by the death of the usufructuary.
Both usufruct and easement are real rights, whether
registered or not, and are transmissible.
5. Classifications
Article 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. (531)
NOTES:
They are as follows:
(1) As to recipient of benefit:
(a) Real. — When the easement is in favor of
another immovable (Art. 613.); or
(b) Personal. — When it is in favor of a community
or of one or more persons. (Art. 614.) Thus, it may
be public or private.
(2) As to its source:
(a) Voluntary. — When the easement is established
by the will or agreement of the parties or by a
testator (Art. 619.);
(b) Legal. — When it is imposed by law either for
public use or in the interest of private persons
(Ibid.; Arts. 637-687.); or
(c) Mixed. — When it is created partly by will or
agreement and partly by law.
(3) As to its exercise:
(a) Continuous. — See Article 615; or
(b) Discontinuous. — (Ibid.)
(4) As to whether or not its existence is indicated:
(a) Apparent. — (Ibid.); or
(b) Non-apparent. — (Ibid.)
(5) As to duty of servient owner:
(a) Positive. — See Article 616; or
(b) Negative. — (Ibid.)
i. As to recipient of benefit
Article 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. (531)
NOTES:
A servitude may be established for the benefit of a
particular estate and consequently, for its owner, or
for the benefit of a person or group of persons
without being the owner or owners of a dominant
estate. The first is real or predial servitude (e.g.,
Art. 637) defined in Article 613 and the second is
personal servitude which is referred to in the
present article.
Unlike a real easement, personal easement does not
require two immovables. An example of personal
servitude is a right of way granted to certain
persons and their “family, friends, drivers, servants,
and jeeps.’’
Personal easements may be:
(1) Public, if it is vested in the public at large or in
some class of indeterminate individuals; for
example, the right of the public to a highway over
a land of private ownership, or to navigate a river
of which the bed belongs to some private person
(Salmond, Jurisprudence, p. 459.); or
(2) Private, if it is vested in a determinate
individual or certain persons, for example, a right
of way, of light, or of support, vested in the owner
of one parcel of land over an adjoining parcel of
land.
ii. As to manner of its exercise; As to whether or not
its existence is indicated (Art. 615)
Article 615. Easements may be continuous or discontinuous,
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. (532)
NOTES:
Continuous and discontinuous easements
These two kinds of easements are defined on the
above provision.
(1) For an easement to be continuous, it is not
necessary that the use be incessant; it is sufficient
that the use may be so. Examples are the right to
support a beam on another’s wall which really
exists continuously and the right of aqueduct
which may be used only on certain days depending
on the need for water but which is continuous
 since its use does not depend upon the intervention
of man. (see Art. 646.)
(2) An example of discontinuous servitude is the
right of way (see Arts. 649[par. 3], 656.) which is
used at intervals because it is physically impossible
that man shall continually pass over the way. (see 4
Manresa 597.)
The easement itself, whether continuous or
discontinuous, exists continuously, whether it is
being used or not, but its exercise may be
continuous or discontinuous, or there may be no
exercise at all. The distinction lies in the fact that
in continuous easements, the exercise or enjoyment
can be had without the intervention of man while
in discontinuous easements, such exercise or
enjoyment requires the intervention of man. In
both easements, the benefit and burden exist from
the moment the easements are created.
Apparent and non-apparent easements
These two kinds of easements are likewise defined
in Article 615.
(1) To constitute an apparent easement, it is not
necessary that its sign be seen; it is sufficient if it
may be seen or known on inspection. The sign or
signs may be encountered, according to the
circumstances, in the dominant or servient estate.
Thus, the sign of the easement of view is found in
the dominant estate, while that of aqueduct, in the
servient estate.
(2) An example of non-apparent easement is a right
of way when there is no indication of its existence.
A right of way is apparent when there is a visible
road or path to show its exercise. In general,
negative easements (Art. 616.) are non-apparent.
The easement of aqueduct is usually apparent, but
if it is exercised through an underground channel,
the easement becomes non-apparent. However, it
is considered apparent by express provision of
Article 646. (4 Manresa 549)
iii. As to duty of servient owner (Art. 616)
Article 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, and a negative easement, that
which prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement did
not exist. (533)
NOTES:
They are defined by the above provision.
(1) An example of positive easement is the
easement of the right of way which imposes upon
the owner of the servient estate the duty to allow
the use of said way. It has been opined that an
easement can never consist in a personal prestation
to do on the part of the owner of the servient
estate.
Although Article 616 seems to imply that the
servient owner may be required to do something,
this obligation has an accessory character and does
not represent the fundamental essence of servitude.
Thus, under Article 680, the owner of a tree whose
branches extend over a neighboring estate, may be
required to cut-off so much of the branches
extending over the said estate.
But the real exercise of the easement in this case is
negative — the obligation of the servient owner
not to allow the branches of his tree to extend
beyond his property. (II Tolentino, Civil Code of
the Philippines, 321, 325; see 4 Manresa 604)
(2) An example of negative easement is the
easement of light and view (Art. 670.) whereby the
owner of the servient estate is prohibited from
obstructing the passage of light. It may also be
positive depending upon the manner by which it is
exercised.
When the opening or window is made on another’s
wall (wall of servient estate) or on a party wall, the
easement acquired is positive because the owner of
the wall allows the servitude to burden his wall. If
the window is through one’s own wall (wall of the
dominant estate) which does not extend over
another’s property (servient estate), the easement is
negative. (see Art. 668; Cortes v. Yu-Tibo, 2 Phil.
24 [1903])
iv. As to source (Art. 619)
Article 619. Easements are established either by law or by
the will of the owners. The former are called legal and the
latter easements. (536)
NOTES:
The courts cannot impose or constitute any
servitude where none existed. They can only
declare its existence if in reality it exists by law or
by the will of the owners. There are, therefore, no
judicial easements. (see 4 Manresa 621.)
Voluntary easements must be recorded in the
Registry of Property in order not to prejudice third
persons. (Art. 708.)
6. Modes of Acquiring Easements
i. For continuous and apparent easements (Art. 620)
Article 620. Continuous and apparent easements are acquired
either by virtue of a title or by prescription of ten years.
(537a)
NOTES:
 Only continuous and apparent easements may be
acquired either by virtue of a title or by
prescription in ten years. The other kinds of
easements may be acquired by any one of the
modes enumerated but not by prescription.
By “title’’ refers to the juridical act which gives
birth to the easement, such as law, donation,
contract, and will of the testator. (see 4 Manresa
624-625.) Article 620 fixes ten years as the period
of prescription, regardless of the good faith or bad
faith of the possessor and whether or not he has
just title. The general rules on prescription do not
apply (see Art. 1115.), the only requirement being
that there be adverse possession (exercise) of the
easement for ten years.
a. Computation of prescriptive period (Art. 621)
Article 621. In order to acquire by prescription the
easements referred to in the preceding article, the time of
possession shall be computed thus: 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 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. (538a)
NOTES:
Continuous and apparent easements may be either
positive or negative. (Art. 616.)
If the easement is positive, the period is counted
from the day on which the owner of the dominant
estate began to exercise it (e.g., from the day a
window was built in a party wall); if negative, from
the day on which a notarial prohibition was made
on the servient estate.
The old Civil Code requires “a formal act.’’ Now,
the prohibition must be “by an instrument
acknowledged before a notary public,’’ a public act,
and hence, more difficult to execute because of its
publicity and the expense connected therewith. (I
Capistrano, op. cit., p. 555.) An oral prohibition is
not sufficient; nor any writing, but one executed in
due form and solemn formalities because easements
constitute an encumbrance on the servient owner’s
rights of ownership. (Cid v. Javier, 108 Phil. 850
[1960])
Note: Under Article 622, non-apparent easements
may not be acquired by prescription. Negative
easements are essentially nonapparent. However,
Article 621 provides the prescriptive period for
negative easements. The notarial prohibition may
be taken as making the easement apparent and,
therefore, prescriptible.
b. Computation: Easement of Light and View (Art.
621)
Article 621. In order to acquire by prescription the
easements referred to in the preceding article, the time of
possession shall be computed thus: 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 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. (538a)
NOTES:
As already stated, the easement of light and view
may be positive and negative depending upon the
manner of its exercise. (see Art. 616.)
(1) If made on one’s own wall and the wall does not
extend over the property of another, the easement
is negative because the owner is merely exercising
his inherent right of dominion and not of an
easement. The servient owner cannot close it up;
otherwise, he will be liable for trespass. But the
negative easement is not automatically vested. The
owner must make the prohibition required upon
the proprietor of the adjoining land or tenement
(Art. 668[2].) to prevent him from obstructing the
light and view by the construction of an
overshadowing structure on his land, a thing he
can lawfully do were it not for the existence of the
easement. If the latter consents to such prohibition
and the period fixed by law expires, the easement
will be acquired by prescription.
There is no true easement for as long as the right to
prohibit its exercise exists. (Cortes v. Yu-Tibo, 2
Phil. 24 [1903]; Fabie v. Lichauco, 11 Phil. 14
[1908])
(2) Now, if made through a party wall or on one’s
own wall which extends over the neighboring
estate, the easement acquired is positive because
the owner of the latter estate who has a right to
close it up allows an encumbrance on his property.
The period of prescription shall be counted from
the time of the opening of the window. (Art.
668[1]; see Relova v. Lavarez, supra.)
ii. For continuous non-apparent easements and
discontinuous ones (Apparent or Non-Apparent)
(Art. 622)
Article 622. Continuous nonapparent easements, and
discontinuous ones, whether apparent or not, may be
acquired only by virtue of a title. (539)
NOTES:
Continuous and apparent easements are the only
easements that can be acquired by prescription
because they are the only ones the possession of
which fulfills two important requisites required by
law for prescription, to wit: that the possession be
 public and continuous. (I Capistrano, op. cit., p.
554)
The easements mentioned in Article 622 may be
acquired by title, but not by prescription, because
their possession or exercise is either not public
(non-apparent) such as easement of lateral and
subjacent support (Arts. 684-687.), or it is public
but not continuous or uninterrupted
(discontinuous), such as right of way if there is a
visible path. (see Ronquillo v. Roco, 63 Phil. 86
[1958]; see Art. 1118.) However, for legal purposes,
the easement of aqueduct shall be considered as
continuous and apparent, although it is not really
so. (Art. 646.)
a. Deed of Recognition or Final Judgment (Art. 623)
Article 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. (540a)
NOTES:
Article 623 applies to the easements mentioned in
Article 622. It presupposes that there is a “title’’ for
the easement, i.e., that it has been acquired by
virtue of a title but there is no document or proof
showing its origin.
The easement may have been acquired by oral
contract, or by virtue of some documents that has
been lost. In either case, easement exists. The
owner of the servient estate may voluntarily
execute the deed referred to in Article 623
acknowledging the existence of the easement. If he
refuses or denies the existence of the easement, the
court, in an action for the purpose and upon
sufficient proof, may, in its judgment, declare such
existence. (4 Manresa 642)
iii. Alienation by same owner of two estates with
sign of existence of servitude (Art. 624)
Article 624. The existence of an apparent sign of easement
between two estates, established or maintained by the owner
of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue
actively and passively, unless, at the time the ownership of
the two estates is divided, the contrary should be provided in
the title of conveyance of either of them, or 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. (541a)
NOTES:
This provision contemplates a situation where two
estates between which there exists an apparent sign
(e.g., window, road) of an easement, belong to the
same owner. What the law requires is that the sign
indicates the existence of a servitude although
there is no true servitude there being only one
owner.
(1) In case the owner alienates either of them or
both of them with the result that the ownership
thereof is divided, the easement shall “continue’’
unless the contrary has been stipulated in the title
of conveyance of either of them or the sign
removed before the execution of the deed.
Actually, the easement does not “continue,’’ for it
arises or is constituted for the first time only upon
alienation of either estate, inasmuch as before that
time, there was no easement to speak of, there is
but one owner of both estates. (Gargantos v. Tan
Yanon, 108 Phil. 888 [1960])
(2) Article 624 applies in case of the division of a
common property by the co-owners as the effect is
the same as an alienation, or there is only one
estate and a part thereof is alienated.
The provision is, of course, not applicable in case
the two estates or portions of the same estate
remain or continue to be in the same owner after
alienation or partition.
7. Rights and obligations of the dominant owner and the
servient owner (Arts. 625-630)
Article 625. Upon the establishment of an easement, all the
rights necessary for its use are considered granted. (542)
Article 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. (n)
SECTION 3
Rights and Obligations of the Owners of the Dominant and
Servient Estates
Article 627. The owner of the dominant estate may make, at
his own expense, on the servient estate 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. (543a)
Article 628. Should there be several dominant estates, the
owners of all of them shall be obliged to contribute to the
expenses referred to in the preceding article, in proportion to
the benefits which each may derive from the work. Anyone
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. (544)
Article 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, the
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may be
changed at his expense, provided he offers another place or
manner equally convenient and 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. (545)
Article 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. (n)
8. Modes of extinguishment of easements
SECTION 4
Modes of Extinguishment of Easements
Article 631. Easements are extinguished:
(1) By merger in the same person of the ownership
of the dominant and servient estates;
(2) By nonuser for ten years; with respect to
discontinuous easements, this period shall be
computed from the day on which they ceased to be
used; and, with respect to 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. (546a)
Article 632. The form or manner of using the easement may
prescribe as the easement itself, and in the same way. (547a)
Article 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. (548)
b. LEGAL EASEMENTS (Arts. 634-687)
CHAPTER 2
Legal Easements
SECTION 1
General Provisions
Article 634. Easements imposed by law have for their object
either public use or the interest of private persons. (549)
Article 635. All matters concerning easements established for
public or communal use shall be governed by the special laws
and regulations relating thereto, and, in the absence thereof,
by the provisions of this Title. (550)
Article 636. Easements established by law in the interest of
private persons or for private use shall be governed by the
provisions of this Title, without prejudice to the provisions of
general or local laws and ordinances for the general welfare.
These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or
no injury is suffered by a third person. (551a)
SECTION 2
Easements Relating to Waters
Article 637. Lower estates are obliged to receive the waters
which naturally and without the intervention of man
descend from the higher estates, as well as the stones or earth
which they carry with them.
The owner of the lower estate cannot construct works which
will impede this easement; neither can the owner of the
higher estate make works which will increase the burden.
(552)
Article 638. The banks of rivers and streams, even in case
they are of private ownership, are subject throughout their
entire length and within a zone of three meters along their
margins, to the easement of public use in the general interest
of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for the
exclusive service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Article 639. Whenever for the diversion or taking of water
from a river or brook, or for the use of any other continuous
or discontinuous stream, it should be necessary to build a
dam, and the person who is to construct it is not the owner
of the banks, or lands which must support it, he may
establish the easement of abutment of a dam, after payment
of the proper indemnity. (554)
Article 640. Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of public
use in favor of a town or village, after payment of the proper
indemnity. (555)
Article 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
indemnity shall include this service. (556)
Article 642. Any person who may wish to use upon his own
estate any water of which he can dispose shall have the right
to make it flow through the intervening estates, with the
obligation to indemnify their owners, as well as the owners
of the lower estates upon which the waters may filter or
descend. (557)
Article 643. One desiring to make use of the right granted in
the preceding article is obliged:
(1) To prove that he can dispose of the water and
that it is sufficient for the use for which it is
intended;
(2) To show that the proposed right of way is the
most convenient and the least onerous to third
persons;
(3) To indemnify the owner of the servient estate in
the manner determined by the laws and regulations.
(558)
Article 644. The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing. (559)
Article 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or
from building over the aqueduct in such manner as not to
cause the latter any damage, or render necessary repairs and
cleanings impossible. (560)
Article 646. For legal purposes, the easement of aqueduct
shall be considered as continuous and apparent, even though
the flow of the water may not be continuous, or its use
depends upon the needs of the dominant estate, or upon a
schedule of alternate days or hours. (561)
Article 647. One who for the purpose of irrigating or
improving his estate, has to construct a stop lock or sluice
gate in the bed of the stream from which the water is to be
taken, may demand that the owners of the banks permit its
construction, after payment of damages, including those
caused by the new easement to such owners and to the other
irrigators. (562)
Article 648. The establishment, extent, form and conditions
of the servitudes of waters, to which this section refers, shall
be governed by the special laws relating thereto insofar as no
provision therefor is made in this Code. (563a)
SECTION 3
Easement of Right of Way
Article 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. (564a)
Article 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and,
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the shortest.
(565)
Article 651. The width of the easement of right of way shall
be that which is sufficient for the needs of the dominant
estate, and may accordingly be changed from time to time.
(566a)
Article 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified
by the donee for the establishment of the right of way. (567a)
Article 653. In the case of the preceding article, if it is the
land of the grantor that becomes isolated, he may demand a
right of way after paying a indemnity. However, the donor
shall not be liable for indemnity. (n)
Article 654. If the right of way is permanent, the necessary
repairs shall be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed by said
owner to the proprietor of the servient estate. (n)
Article 655. If the right of way granted to a surrounded
estate ceases to be necessary because its owner has joined it
to another abutting on a public road, the owner of the
servient estate may demand that the easement be
extinguished, returning what he may have received by way
of indemnity. The interest on the indemnity shall be deemed
to be in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
In both cases, the public highway must substantially meet
the needs of the dominant estate in order that the easement
may be extinguished. (568a)
Article 656. If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to
carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the
damage caused him. (569a)
Article 657. Easements of the right of way for the passage of
livestock known as animal path, animal trail or any other,
and those for watering places, resting places and animal
folds, shall be governed by the ordinances and regulations
relating thereto, and, in the absence thereof, by the usages
and customs of the place.
Without prejudice to rights legally acquired, the animal path
shall not exceed in any case the width of 75 meters, and the
animal trail that of 37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement
of the right of way or for a watering place for animals, the
provisions of this Section and those of articles 640 and 641
shall be observed. In this case the width shall not exceed 10
meters. (570a)
SECTION 4
Easement of Party Wall
Article 658. The easement of party wall shall be governed by
the provisions of this Title, by the local ordinances and
customs insofar as they do not conflict with the same, and by
the rules of co-ownership. (571a)
Article 659. The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to
the contrary:
(1) In dividing walls of adjoining buildings up to the
point of common elevation;
(2) In dividing walls of gardens or yards situated in
cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural
lands. (572)
Article 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there
is a window or opening;
(2) Whenever the dividing wall is, on one side,
straight and plumb on all its facement, and on the
other, it has similar conditions on the upper part,
but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the
boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of
the binding beams, floors and roof frame of one of
the buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way
that the coping sheds the water upon only one of
the estates;
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain
intervals project from the surface on one side only,
but not on the other;
(7) Whenever lands inclosed by fences or live
hedges adjoin others which are not inclosed.
In all these cases, the ownership of the walls, fences
or hedges shall be deemed to belong exclusively to
the owner of the property or tenement which has in
its favor the presumption based on any one of these
signs. (573)
Article 661. Ditches or drains opened between two estates
are also presumed as common to both, if there is no title or
sign showing the contrary.
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only
on one side thereof, in which case the ownership of the ditch
shall belong exclusively to the owner of the land having this
exterior sign in its favor. (574)
Article 662. The cost of repairs and construction of party
walls and the maintenance of fences, live hedges, ditches,
and drains owned in common, shall be borne by all the
owners of the lands or tenements having the party wall in
their favor, in proportion to the right of each.
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-
ownership, except when the party wall supports a building
belonging to him. (575)
Article 663. If the owner of a building, supported by a party
wall desires to demolish the building, he may also renounce
his part-ownership of the wall, but the cost of all repairs and
work necessary to prevent any damage which the demolition
may cause to the party wall, on this occasion only, shall be
borne by him. (576)
Article 664. Every owner may increase the height of the
party wall, doing so at his own expense and paying for any
damage which may be caused by the work, even though such
damage be temporary.
The expenses of maintaining the wall in the part newly
raised or deepened at its foundation shall also be paid for by
him; and, in addition, the indemnity for the increased
expenses which may be necessary for the preservation of the
party wall by reason of the greater height or depth which has
been given it.
If the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his
own expense and, if for this purpose it be necessary to make
it thicker, he shall give the space required from his own land.
(577)
Article 665. The other owners who have not contributed in
giving increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by
paying proportionally the value of the work at the time of
the acquisition and of the land used for its increased
thickness. (578a)
Article 666. Every part-owner of a party wall may use it in
proportion to the right he may have in the co-ownership,
without interfering with the common and respective uses by
the other co-owners. (579a)
SECTION 5
Easement of Light and View
Article 667. No part-owner may, without the consent of the
others, open through the party wall any window or aperture
of any kind. (580)
Article 668. The period of prescription for the acquisition of
an easement of light and view shall be counted:
(1) From the time of the opening of the window, if
it is through a party wall; or
(2) From the time of the formal prohibition upon
the proprietor of the adjoining land or tenement, if
the window is through a wall on the dominant
estate. (n)
Article 669. When the distances in article 670 are not
observed, the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to another,
can make in it openings to admit light at the height of the
ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an
iron grating imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can close
them should he acquire part-ownership thereof, if there be
no stipulation to the contrary.
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having
such openings, unless an easement of light has been acquired.
(581a)
Article 670. No windows, apertures, balconies, or other
similar projections which afford a direct view upon or
towards an adjoining land or tenement can be made, without
leaving a distance of two meters between the wall in which
they are made and such contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of
sixty centimeters.
The nonobservance of these distances does not give rise to
prescription. (582a)
Article 671. The distance referred to in the preceding article
shall be measured in cases of direct views from the outer line
of the wall when the openings do not project, from the outer
line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties. (583)
Article 672. The provisions of article 670 are not applicable
to buildings separated by a public way or alley, which is not
less than three meters wide, subject to special regulations and
local ordinances. (584a)
Article 673. Whenever by any title a right has been acquired
to have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in article 671. Any
stipulation permitting distances less than those prescribed in
article 670 is void. (585a)
SECTION 6
Drainage of Buildings
Article 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public place,
and not on the land of his neighbor, even though the
adjacent land may belong to two or more persons, one of
whom is the owner of the roof. Even if it should fall on his
own land, the owner shall be obliged to collect the water in
such a way as not to cause damage to the adjacent land or
tenement. (586a)
Article 675. The owner of a tenement or a piece of land,
subject to the easement of receiving water falling from roofs,
may build in such manner as to receive the water upon his
own roof or give it another outlet in accordance with local
ordinances or customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate. (587)
Article 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can be
demanded, giving an outlet to the water at the point of the
contiguous lands or tenements where its egress may be
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate,
after payment of the property indemnity. (583)
SECTION 7
Intermediate Distances and Works for Certain Constructions
and Plantings
Article 677. No constructions can be built or plantings made
near fortified places or fortresses without compliance with
the conditions required in special laws, ordinances, and
regulations relating thereto. (589)
Article 678. No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its
nature or products is dangerous or noxious, without
observing the distances prescribed by the regulations and
customs of the place, and without making the necessary
protective works, subject, in regard to the manner thereof, to
the conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by stipulation
on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be taken
as may be considered necessary, in order to avoid any
damage to the neighboring lands or tenements. (590a)
Article 679. No trees shall be planted near a tenement or
piece of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and, in
the absence thereof, at a distance of at least two meters from
the dividing line of the estates if tall trees are planted and at
a distance of at least fifty centimeters if shrubs or small trees
are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which have
grown spontaneously. (591a)
Article 680. If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the owner of
the latter shall have the right to demand that they be cut off
insofar as they may spread over his property, and, if it be the
roots of a neighboring tree which should penetrate into the
land of another, the latter may cut them off himself within
his property. (592)
Article 681. Fruits naturally falling upon adjacent land
belong to the owner of said land. (n)
SECTION 8
Easement Against Nuisance (n)

Article 682. Every building or piece of land is subject to the
easement which prohibits the proprietor or possessor from
committing nuisance through noise, jarring, offensive odor,
smoke, heat, dust, water, glare and other causes.
Article 683. Subject to zoning, health, police and other laws
and regulations, factories and shops may be maintained
provided the least possible annoyance is caused to the
neighborhood.
SECTION 9
Lateral and Subjacent Support (n)
Article 684. No proprietor shall make such excavations upon
his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support.
Article 685. Any stipulation or testamentary provision
allowing excavations that cause danger to an adjacent land or
building shall be void.
Article 686. The legal easement of lateral and subjacent
support is not only for buildings standing at the time the
excavations are made but also for constructions that may be
erected.
Article 687. Any proprietor intending to make any
excavation contemplated in the three preceding articles shall
notify all owners of adjacent lands.
1. Definition (Art. 634)
Article 634. Easements imposed by law have for their object
either public use or the interest of private persons. (549)
NOTES:
As provided above, legal easements are easements imposed
or mandated by law and which have for their object either
public use or the interest of private persons, and thereby
become a continuing property right. (see Benedicto v. Court
of Appeals, 25 SCRA 145 [1968]; Villanueva v. Velasco, 346
SCRA 99 [2000])
2. Kinds of legal easements (Art. 634)
Article 634. Easements imposed by law have for their object
either public use or the interest of private persons. (549)
NOTES:
The law classifies them according to their use or object into:
(1) Public legal easements or those for public or communal
use; and
(2) Private legal easements or those for the interest of
private persons or for private use, which include those
relating to:
(a) waters (Arts. 637-648.);
(b) right of way (Arts. 649-657.);
(c) party wall (Arts. 658-666.);
(d) light and view (Arts. 667-673.);
(e) drainage (Arts. 674-676.);
(f) intermediate distances (Arts. 677-681.);
(g) against nuisance (Arts. 682-683.); and
(h) lateral and subjacent support. (Arts. 684-687.)
3. Easements Relating to Waters
i. Natural Drainage (Art. 637)
Article 637. Lower estates are obliged to receive the waters
which naturally and without the intervention of man
descend from the higher estates, as well as the stones or earth
which they carry with them.
The owner of the lower estate cannot construct works which
will impede this easement; neither can the owner of the
higher estate make works which will increase the burden.
(552)
NOTES:
Article 637 impose a natural easement upon the
lower estates which are obliged to receive the
waters which naturally and without the
intervention of man (not waters, for example, from
reservoirs or tanks) descend from the higher
estates, as well as the stones or earth carried by the
waters.
(1) Duty of servient owner. — The owner of the
lower estate cannot construct works, which will
impede this easement, such as walls, ditches or
fences, or a dam which block the natural flow of
the waters. The dominant owner may demand
their removal or destruction and recover damages.
(see Lunod v. Meneses, 11 Phil. 428 [1908]; see
Osmeña v. Camara, [C.A.] 38 O.G. [No. 121], p.
2773.)
Since the enjoyment of the easement does not
depend upon the acts of man because the flow of
waters is due to the force of gravity, this easement
is a continuous one and may be extinguished by
non-user for the period of ten years required by
law. (Art. 631[2].) Thus, if a dike was constructed
by the servient owner (an act contrary to the
easement), the action to destroy the dike is barred
if brought only after than ten years. The servient
owner may construct works to regulate the flow of
waters and prevent damage to himself but not
those “which will impede the easement.’’
(2) Duty of dominant owner. — The owner of the
higher tenement cannot make works which will
increase the burden. If the waters are the result of
artificial development, or are the overflow from
irrigation dams, or proceed from industrial
establishments recently set up, the owner of the
lower estate shall be entitled to compensation for
his loss or damage. (Art. 11, Spanish Law of
Waters, cited in Lunod v. Meneses, supra) Thus, in
a case, liability for damages was imposed on the
owner of a piggery farm for negligence in allowing
the waste water containing pig manure to flood his
neighbor’s property which was practically made a
catch-basin of the polluted water resulting in the
impairment of the latters’ land and death of several
 fruit trees. (Remman Enterprises, Inc. v. Court of
Appeals, 330 SCRA 145 [2000])
But the dominant owner is not prohibited from
cultivating his land or constructing works to
regulate the descent of the waters to prevent
erosion to his land and as long as he does not
impede the natural flow of the waters and increase
the burden of the lower estate, he is not liable for
damages. (see Art. 674.)
ii. Easements on Riparian Banks for Navigation,
Floatage, Fishing, Salvage and Towpath (Art. 638)
Article 638. The banks of rivers and streams, even in case
they are of private ownership, are subject throughout their
entire length and within a zone of three meters along their
margins, to the easement of public use in the general interest
of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers
are, furthermore, subject to the easement of towpath for the
exclusive service of river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
NOTES:
(1) Banks of rivers and streams, whether they are of
public or private ownership, are subject to
easement of public use for: (a) navigation, (b)
floatage, (c) fishing, and (d) salvage, and (e) with
respect to estates adjourning banks of navigable
rivers, also to easement of towpath.
(2) If the land is of public ownership, there is no
indemnity; if of private ownership, the proper
indemnity shall first be paid before it may be
occupied. Riparian owners cannot be required to
subject their property to the easement for the
benefit of the public without prior indemnity.
(Ayala de Roxas v. City of Manila, 6 Phil. 25
[1906])
(3) The width of the zone subject to the easement is
three meters throughout the entire length of the
bank along its margin. In a case, the City of Manila
leased a public alley to a private party rendering it
impossible for the public to use the zone of three
meters along the estero for purposes of navigation,
etc., contrary to Article 638, the Supreme Court
held: “The authority of local governments to enact
municipal ordinances is subject to the general
limitation that the same shall not be repugnant to
law.’’ (Unson v. Lacson, 100 Phil. 695 [1957])
The easement established by Article 638 does not
apply to canals (esteros). (Ayala de Roxas v. City of
Manila, supra)
iii. Easement of Dam (Art. 639)
Article 639. Whenever for the diversion or taking of water
from a river or brook, or for the use of any other continuous
or discontinuous stream, it should be necessary to build a
dam, and the person who is to construct it is not the owner
of the banks, or lands which must support it, he may
establish the easement of abutment of a dam, after payment
of the proper indemnity. (554)
NOTES:
A person who needs to build a dam to divert or
take water from a river or brook but is not the
owner of the banks or lands which must support
the dam, may be allowed the easement of abutment
or buttress of a dam (estribo de presa).
(1) He must seek the permission of the owner, and
in case of the latter’s refusal he must secure
authority from the proper administrative agency
which will conduct the necessary investigation in
which all interested parties are given opportunity
to be heard. In establishing the easement, the
proper indemnity must be paid.
(2) Where the construction of a dam is
unauthorized, the same can be considered a private
nuisance and may be lawfully destroyed or
removed by the injured landowner or by any
person acting under his directions. It is incumbent
upon the builder who seeks to restrain affected
landowners from interfering with his use of the
dam to prove that he has legal right or authority to
build the same. (Solis v. Pujeda, 42 Phil. 697
[1922])
iv. Easement for Drawing Water or for Watering
Animals (Arts. 640-641)
Article 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
indemnity shall include this service. (556)
NOTES:
This is a personal easement which includes the
accessory easement of passage or right of way of
persons and animals to the place where the
easement is to be used.
The requisites for this easement are:
(1) It must be imposed for reasons of public use;
(2) It must be in favor of a town or village; and
(3) There must be payment of proper indemnity.
v. Easement of Aqueduct (Art. 642-646)
Article 642. Any person who may wish to use upon his own
estate any water of which he can dispose shall have the right
to make it flow through the intervening estates, with the
obligation to indemnify their owners, as well as the owners
of the lower estates upon which the waters may filter or
descend. (557)
Article 643. One desiring to make use of the right granted in
the preceding article is obliged:
 (1) To prove that he can dispose of the water and
that it is sufficient for the use for which it is
intended;
(2) To show that the proposed right of way is the
most convenient and the least onerous to third
persons;
(3) To indemnify the owner of the servient estate in
the manner determined by the laws and regulations.
(558)
Article 644. The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing. (559)
Article 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or
from building over the aqueduct in such manner as not to
cause the latter any damage, or render necessary repairs and
cleanings impossible. (560)
Article 646. For legal purposes, the easement of aqueduct
shall be considered as continuous and apparent, even though
the flow of the water may not be continuous, or its use
depends upon the needs of the dominant estate, or upon a
schedule of alternate days or hours. (561)
NOTES:
Easement of aqueduct defined.
Easement of aqueduct is the right arising from a
forced easement by virtue of which the owner of
an estate who desires to avail himself of water for
the use of said estate may make such waters pass
through the intermediate estate with the obligation
of indemnifying the owner of the same and also the
owner of the estate to which the water may filter
or flow. (2 Castan 527)
This easement is provided in Article 642. It gives
the right to make water flow through or under
intervening or lower estates.
Requisites of the easement
Article 643 gives the requisites for its exercise
while Article 644 states on what properties the
easement cannot be imposed.
The person desiring to make use of the easement
must:
(1) Prove that he has the capacity to dispose of the
water;
(2) Prove that the water is sufficient for the use
intended;
(3) Show that the proposed right of way is the most
convenient and the least onerous to third persons;
and
(4) Pay indemnity to the owner of the servient
estate.
The easement cannot be imposed over buildings,
courtyards, annexes, or gardens if the easement is
for private interest. (Art. 644.)
Rights of owner of servient estate
Notwithstanding the easement of aqueduct, the
servient owner may close or fence his estate, or
build over the aqueduct so long as no damage is
caused to the aqueduct or the necessary repairs and
cleanings of the same are not rendered impossible.
Like the owner of the lower estate on which an
easement of natural drainage has been established
(Art. 637.), he can construct works he may deem
necessary to prevent damage to himself provided
that he does not impede or impair, in any manner
whatsoever, the use of the easement. If he does, the
dominant owner may ask for the removal or
destruction of such works with a right to
indemnity for damages.
Easement considered as continuous and apparent
The easement of aqueduct is generally non-
apparent because it is found underground; and
discontinuous because it is used only at times, and
during the dry season, the use may be very seldom
due to the insufficient flow of water. For legal
purposes, however, the easement is considered
apparent and continuous and, therefore, may be
susceptible of acquisitive prescription. (see Art.
620.)
vi. Easement for the construction of stop lock or
sluice gate (Art. 647)
Article 647. One who for the purpose of irrigating or
improving his estate, has to construct a stop lock or sluice
gate in the bed of the stream from which the water is to be
taken, may demand that the owners of the banks permit its
construction, after payment of damages, including those
caused by the new easement to such owners and to the other
irrigators. (562)
NOTES:
In Article 639, the purpose of building a dam is to
divert or take water from a river or brook. Here,
the purpose of the construction is take water for
irrigation, or to improve an estate.
In both cases, the construction is on the estate of
another and proper indemnity has to be paid.
Furthermore, no damage must be caused to third
persons.
vii. Laws governing servitude of waters
Article 648. The establishment, extent, form and conditions
of the servitudes of waters, to which this section refers, shall
be governed by the special laws relating thereto insofar as no
provision therefor is made in this Code. (563a)
NOTES:
All matters pertaining to the establishment, extent,
form, and conditions of the servitude of waters are
governed by Articles 637 to 647 which are the Civil
Code provisions on easements of waters and by
special laws relating thereto particularly, the Water
 Code of the Philippines. (Pres. Decree No. 1067.) In
case of conflict, the Civil Code prevails.
4. Easement of right of way
i. Definition (Art. 649)
Article 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. (564a)
NOTES:
Easement of right of way is the right granted by
law to the owner of an estate which is surrounded
by other estates belonging to other persons and
without an adequate outlet to a public highway to
demand that he be allowed a passageway
throughout such neighboring estates after payment
of the proper indemnity.
ii. Nature of easement
(1) They are demanded by necessity, that
is, to enable owners of isolated estates to make full
use of their properties, which lack of access to
public roads has denied them. (see Costabella Corp.
v. Court of Appeals, 193 SCRA 333 [1991])
(2) Under Article 649, they are
compulsory and hence, legally demandable, subject
to indemnity and the concurrence of certain
conditions. (Ibid.) As compulsory easements, they
are inseparable from the estate to which they
actively or passively belong. (Art. 617)
(3) It is no argument that no contract of
easement is annotated in the title of the servient
estate nor notice of lis pendens to enforce the
easement recorded with the register of deeds, for it
is in the nature of legal easement that the servient
estate is legally bound to provide the dominant
estate ingress from and egress to the public
highway. (Villanueva v. Velasco, 138 SCAD 566,
346 SCRA 99 [2000])
(4) The compulsory (legal) right of way
may be claimed if the existence of the requisites
mentioned below is established by the claimant
(see Locsin v. Climaco, 26 SCRA 816 [1969]; Vda.
de Baltazar v. Court of Appeals, 62 SCAD 76, 245
SCRA 333 [1995].), i.e., the owner or proprietor of
the dominant estate, by clear and convincing
evidence, an easement being regarded as a charge
or encumbrance on the servient estate, involving as
it does an abnormal restriction on the property
rights of the servient owner. (Cristobal v. Court of
Appeals, 95 SCAD 44, 291 SCRA 122 [1998]) He is
not at liberty to impose one based on arbitrary
choice. (Costabella Corp. v. Court of Appeals,
supra)
iii. Requisites of the easement (Art. 649-650)
Article 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. (564a)
Article 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and,
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the shortest.
(565)
NOTES:
(1) Claimant must be an owner of enclosed
immovable or one with real right. — Not only the
owner of the enclosed estate but any person who
by virtue of a real right may cultivate or use an
immovable, may demand a right of way. It is clear
that a usufructuary may demand a right of way.
(2) There must be no adequate outlet to a public
highway. — The servitude may be demanded when
there is no outlet or access to a public highway, or
even when there is one, the same is not adequate.
Thus, where the use of an existing outlet is
dangerous or is very difficult, or is very costly, or is
not always available, or requires travel at a long
distance, a new right of way may be demanded.
The owner of the servient estate subject to the
easement cannot obstruct the use of the easement,
as when he fences the original right of way and
moves the path to another portion of his land if the
proposed new location is farther and is not as
convenient as the original path. He may be
restrained by injunction. (Resolme v. Lazo, 27 Phil.
816 [1914]; see De La Cruz v. Ramiscal, 450 SCRA
449 [2005])
(3) The right of way must be absolutely necessary.
— The right cannot be claimed merely for the
convenience of the owner of the enclosed estate.
(4) The isolation must not be due to the claimant’s
own act. — The right of the dominant proprietor to
have a right of way shall not be granted when the
isolation of his estate is due to his own acts as when
he constructs a permanent structure on that
portion of his land which gives him sufficient
access to the public highway even when he can do
so without inconvenience and additional cost on
another portion. The proprietor can only blame
himself for his predicament. He cannot, by his own
act, isolate his property from a public highway and
then claim an easement of way through an adjacent
estate. It will not do to assert that use of the
passageway was difficult or inconvenient.
(Francisco v. Intermediate Appellate Court, 177
SCRA 527 [1989]; see Dionisio v. Ortiz, 204 SCRA
745 [1991])
(5) The easement must be established at the point
least prejudicial to the servient estate. — This point
is generally taken where the distance from the
dominant estate to a public highway is the shortest,
but is not always so. (Art. 651.) The criterion of
least prejudice or injury to the servient estate shall
be observed although the distance may not be the
shortest or is even the longest.
This is a question of fact to be determined by the
court in each particular case.
(6) There must be payment of proper indemnity. —
The right can be acquired only after the proper
indemnity has been paid. (see Art. 652)
iv. Kinds of easement
The easement may be:
(1) Private, when it is established in favor of a
private person, such as the right granted in Article
649; or
(2) Public, when it is available in favor of the
community or public at large.
v. Acquisition and extinguishment by prescription
Only easements which are continuous and at the
same time apparent may be acquired by
prescription. The period is ten years. (Art. 620.)
Discontinuous easements, whether apparent or not,
may be acquired only by virtue of a title (Art. 622)
and not by prescription.
(1) The easement of right of way, being
discontinuous, cannot, therefore, be acquired by
prescription. The use of a footpath or road may be
apparent but it is not a continuous easement
because its use is at intervals and depends upon the
acts of man. It can be exercised only if a man passes
or puts his feet over somebody else’s land.
(Abellana, Sr. v. Court of Appeals, 208 SCRA 316
[1922])
The view has been expressed “that when the right
of way is permanent and has an apparent sign, it
can be acquired by prescription. If the land itself
occupied by the road can be acquired in ownership
by prescription why can’t a servitude which is less
than ownership? When there is a permanent road,
the easement should be considered continuous
because the existence of the road is a continuing
assertion of a right against the exclusive dominion
of its owner.’’ (II Tolentino, op. cit., p. 352)
A right of way may be regarded as continuous
under certain circumstances.
(2) In any case, the right cannot be acquired by
prescription if the use relied upon as basis for
prescription was merely tolerated by the owner of
an estate for convenience. (Archbishop of Manila v.
Roxas, 22 Phil. 450 [1912]; Cuaycong v. Benedicto,
37 Phil. 781 [1981])
(3) One whose land is enclosed by the lands of
others at once acquires the right to demand an
easement of way to the nearest street or road, but
his failure to do so does not constitute a
renunciation of his right under No. (5) of Article
631, nor does the right to demand such easement
prescribe under No. (2) of the same article.
(Francisco v. Paez, 54 Phil. 239 [1930]) The right to
demand a right of way under the conditions
provided in Article 649 is imprescriptible. (Art.
1143.)
vi. Width of passage (Art. 651)
Article 651. The width of the easement of right of way shall
be that which is sufficient for the needs of the dominant
estate, and may accordingly be changed from time to time.
(566a)
NOTES:
In the Encarnacion case, the petitioner and his
family could easily make do with a few pushcarts
to tow the plants to the national highway, when he
started out as a plant nursery operator. But the
business grew and with it the need for the use of
modern means of conveyance or transport. Manual
hauling of plants and garden soil and use of
pushcarts have become extremely cumbersome and
physically taxing. The Supreme Court said: “To
force petitioner to leave his jeepney in the
highway, exposed to the elements and the risk of
theft simply because it could not pass through the
 improvised pathway, is sheer pigheadedness on the
part of the servient estate. Petitioner should not be
denied a passageway wide enough to accommodate
his jeepney since that is reasonable and necessary
aspect of the plant nursery business.’’
vii. Where land of transferor or transferee enclosed
(Art. 652)
Article 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified
by the donee for the establishment of the right of way. (567a)
Article 653. In the case of the preceding article, if it is the
land of the grantor that becomes isolated, he may demand a
right of way after paying an indemnity. However, the donor
shall not be liable for indemnity. (n)
NOTES:
Articles 652 and 653 provide an exception to the
requirement in Article 649 regarding the payment
of indemnity.
(1) Buyer’s, etc., land enclosed. — If the land
transferred is surrounded by other estates of the
vendor, exchanger, or co-owner, the transferee is
not obliged to pay indemnity for the easement as
the consideration for the transfer is presumed to
include the easement without the indemnity.
(2) Donee’s land enclosed. — Article 652 is not
applicable in cases of simple donation because the
donor receives nothing for his property, unlike in
sale, exchange, or partition. A simple donation is
one made out of pure liberality. (Art. 725.)
(3) Seller’s, etc. or donor’s land enclosed. — If it is
the land of the grantor, i.e., seller, barterer, or co-
owner that becomes isolated, he may demand a
right of way but he shall be obliged to pay
indemnity unless the purchaser agreed to grant
right without indemnity. The donor shall not be
liable for indemnity as it is considered a tacit
condition of the donation. (Art. 653.)
viii. Responsibility for repairs and taxes (Art. 654)
Article 654. If the right of way is permanent, the necessary
repairs shall be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed by said
owner to the proprietor of the servient estate. (n)
NOTES:
Article 654 applies if the right of way is permanent.
(see Art. 649, par. 2.) It provides a fair adjustment
between the rights of the dominant and servient
owners. (Report of the Code Commission, p. 98)
The servient owner retains ownership of the
passageway; hence, he pays all the taxes. But the
dominant owner is liable for the necessary repairs
and the proportionate share of the taxes paid by the
servient owner, that is, the amount of the taxes
corresponding to the portion on which the
easement is established.
ix. Extinguishment of compulsory easement of
right of way (Art. 655)
Article 655. If the right of way granted to a surrounded
estate ceases to be necessary because its owner has joined it
to another abutting on a public road, the owner of the
servient estate may demand that the easement be
extinguished, returning what he may have received by way
of indemnity. The interest on the indemnity shall be deemed
to be in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving access to the isolated estate.
In both cases, the public highway must substantially meet
the needs of the dominant estate in order that the easement
may be extinguished. (568a)
NOTES:
(1) Causes of extinguishment. — Article 655 applies
to compulsory easement of right of way. It provides
for two causes of extinguishment: the joining of the
isolated estate to another abutting a public road
and opening of a new road which gives access to
the estate. In both cases, the new outlet must be
adequate. (see Art. 649, par. 1.)
(2) Extinguishment not automatic. — The
extinguishment is not automatic because the law
says that the owner of the servient estate may
demand that the easement be extinguished, if he so
desires. Hence, the dominant owner cannot ask for
the return of the indemnity, if the servient owner
chooses to allow the continuation of the easement.
The return of the indemnity is predicated on the
extinguishment of the right of way.
(3) Obligation of servient owner. — The amount to
be returned consists of the value of the land
occupied and the damage caused to the servient
estate, where the servitude is a permanent passage.
(Art. 649, par. 2.) The servient owner is not liable
to pay interest on the indemnity as the interest is
deemed to be payment for the use of the easement.
If the servitude is temporary or discontinuous,
nothing has to be returned since the indemnity is
considered the compensation for the damage
already suffered.
x. Temporary easement of right of way (Art. 656)
Article 656. If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to
carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work,
the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the
damage caused him. (569a)
NOTES:
This provision deals with a right of way which is
essentially temporary or transitory.
(1) The word “owner’’ comprehends the
usufructuary who may make use of the right
granted. (4 Manresa 753)
(2) The words “improvement, alteration or
beautification’’ are added to make the rule
comprehensive. These would not materially add to
the burden of the servitude considering that it is
essentially temporary. (I Capistrano, op. cit., p. 577)
(3) Although the law provides that the easement
mentioned must be “indispensable’’ for the
construction, etc. of a building, it is not to be
construed in its literal meaning; it is sufficient that
great inconvenience, difficulty, or expense would
be encountered if the easement were not granted.
In a case, the trial court found that irrespective of
which route the petitioner used in gaining access to
his property, he had to pass private respondent’s
subdivision. Thus, the petitioner was granted a
temporary easement. Article 656 provides that
temporary easement is allowed only after the
payment of the proper indemnity. Note that Article
656 deals only with temporary easement of passage.
The installation of electric power lines is a
permanent easement not covered by the law.
(Preysler, Jr. v. Court of Appeals, G.R. No. 158141,
July 11, 2006.)
xi. Right of way for the passage of livestock,
watering places (Art. 657)
Article 657. Easements of the right of way for the passage of
livestock known as animal path, animal trail or any other,
and those for watering places, resting places and animal
folds, shall be governed by the ordinances and regulations
relating thereto, and, in the absence thereof, by the usages
and customs of the place.
Without prejudice to rights legally acquired, the animal path
shall not exceed in any case the width of 75 meters, and the
animal trail that of 37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement
of the right of way or for a watering place for animals, the
provisions of this Section and those of articles 640 and 641
shall be observed. In this case the width shall not exceed 10
meters. (570a)
NOTES:
The easements shall be governed by the ordinances
and regulations relating thereto, and in their
absence, by the usages and customs of the place.
The maximum width of the passageway depends on
whether it is an animal path or an animal trail. If
the easement established is compulsory, the width
shall not extend ten meters.
Articles 640 and 641 referred to in the provision
relate to easement for drawing waters and for
watering animals. They can be imposed only for
reasons of public use in favor of a town or barrio
and only after payment of the proper indemnity
which shall include that for the passage required to
be allowed to persons and animals to the place
where such easements are to be used.
5. Easement of party wall
i. Definition (Art. 658)
Article 658. The easement of party wall shall be governed by
the provisions of this Title, by the local ordinances and
customs insofar as they do not conflict with the same, and by
the rules of co-ownership. (571a)
NOTES:
Easement of party wall refers to all those mass of
rights and obligations emanating from the
existence and common enjoyment of wall, fence,
enclosures or hedges, by the owners of adjacent
buildings and estates separated by such objects. (2
Castan 532)
ii. Presumption (Art. 659)
Article 659. The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to
the contrary:
(1) In dividing walls of adjoining buildings up to the
point of common elevation;
(2) In dividing walls of gardens or yards situated in
cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural
lands. (572)
NOTES:
In the three cases mentioned, the presumption is
that the structures referred to are party walls.
The legal presumption is juris tantum; it may be
rebutted by a title or exterior sign, or any other
proof showing that the entire wall in controversy
belongs exclusively to one of the adjoining
property owners. Thus, it has been held:
“Considering the fact that the wall is supported by
buttresses on both sides, and considering that both
parties have used the wall for the purpose of
supporting the structures on their respective lots,
and considering the fact that the plaintiffs have a
wall joined to the wall in question and that they
and the defendants have used the wall as a partial
support for the kitchen, and considering the
conflicting character of the testimony with
reference to the ownership of the wall, together
with the exterior signs of the same, we are of the
opinion that the said wall is a party wall, that it
 belongs to the petitioners and objectors jointly.’’
(Valenzuela v. Unson, 32 Phil. 19 [1915])
a. General rule (Art. 659)
b. Exceptions (Art. 660)
Article 660. It is understood that there is an exterior sign,
contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there
is a window or opening;
(2) Whenever the dividing wall is, on one side,
straight and plumb on all its facement, and on the
other, it has similar conditions on the upper part,
but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the
boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of
the binding beams, floors and roof frame of one of
the buildings, but not those of the others;
(5) Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way
that the coping sheds the water upon only one of
the estates;
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain
intervals project from the surface on one side only,
but not on the other;
(7) Whenever lands inclosed by fences or live
hedges adjoin others which are not inclosed.
In all these cases, the ownership of the walls, fences or
hedges shall be deemed to belong exclusively to the owner of
the property or tenement which has in its favor the
presumption based on any one of these signs. (573)
NOTES:
Article 660 mentions some exterior signs rebutting
the presumption of a party wall. The wall becomes
the exclusive property of the owner of the estate
which has in its favor the presumption based on
any of the above exterior signs. The enumeration is
merely illustrative, and is not exclusive.
The exterior signs may contradict each other. In
such case, the court shall decide the matter taking
into consideration all the circumstances. But in
case of conflict between a title evidencing
ownership to a wall and an exterior sign, the
former must prevail, for the latter merely gives rise
to an inference of ownership.
iii. Ditches or drains (Art. 661)
Article 661. Ditches or drains opened between two estates
are also presumed as common to both, if there is no title or
sign showing the contrary.
There is a sign contrary to the part-ownership whenever the
earth or dirt removed to open the ditch or to clean it is only
on one side thereof, in which case the ownership of the ditch
shall belong exclusively to the owner of the land having this
exterior sign in its favor. (574)
NOTES:
The deposit of earth or debris on one side alone is
an exterior sign that the owner of that side is the
owner of the ditch or drain. The presumption is an
addition to those enumerated in Article 660 and is
likewise rebuttable.
iv. Cost of repairs and construction (Art. 662)
Article 662. The cost of repairs and construction of party
walls and the maintenance of fences, live hedges, ditches,
and drains owned in common, shall be borne by all the
owners of the lands or tenements having the party wall in
their favor, in proportion to the right of each.
Nevertheless, any owner may exempt himself from
contributing to this charge by renouncing his part-
ownership, except when the party wall supports a building
belonging to him. (575)
NOTES:
As in co-ownership (see Art. 488.), the part-owners
of the party wall shall contribute to the cost in
proportion to their respective interests. This
presupposes that the need for the expenses is due to
fortuitous event or any cause not attributable to the
fault of any one of the part-owners, in which case,
he alone shall bear the same.
Any owner may free himself from contributing to
the charge by renouncing his rights in the party
wall unless it actually supports his building.
According to Manresa, the renunciation must be
total (4 Manresa 784.), that is, of “his part
ownership.’’ (par. 2.) Obviously, the renunciation
will include the land on which the party wall is
constructed. In co-ownership, partial renunciation
is allowed. (see Art. 488.)
v. Demolition of building (Art. 663)
Article 663. If the owner of a building, supported by a party
wall desires to demolish the building, he may also renounce
his part-ownership of the wall, but the cost of all repairs and
work necessary to prevent any damage which the demolition
may cause to the party wall, on this occasion only, shall be
borne by him. (576)
NOTES:
An owner may also renounce his part ownership of
a party wall if he desires to demolish his building
supported by the wall. He shall bear all the
expenses of repairs and work necessary to prevent
any damage which the demolition may cause to the
party wall.
The phrase “on this occasion only’’ means that his
liability for damages is limited to those damages
suffered simultaneously, during, or immediately
after, and by reason of the demolition. (2 Sanchez
Roman 627)
 vi. Increasing height (Art. 664, 665)
Article 664. Every owner may increase the height of the
party wall, doing so at his own expense and paying for any
damage which may be caused by the work, even though such
damage be temporary.
The expenses of maintaining the wall in the part newly
raised or deepened at its foundation shall also be paid for by
him; and, in addition, the indemnity for the increased
expenses which may be necessary for the preservation of the
party wall by reason of the greater height or depth which has
been given it.
If the party wall cannot bear the increased height, the owner
desiring to raise it shall be obliged to reconstruct it at his
own expense and, if for this purpose it be necessary to make
it thicker, he shall give the space required from his own land.
(577)
Article 665. The other owners who have not contributed in
giving increased height, depth or thickness to the wall may,
nevertheless, acquire the right of part-ownership therein, by
paying proportionally the value of the work at the time of
the acquisition and of the land used for its increased
thickness. (578a)
NOTES:
An owner is given the right to increase the height
of a party wall subject to the following conditions:
(1) He must do so at his own expense;
(2) He must pay for any damage which may be
caused thereby even if the damage is temporary;
(3) He must bear the cost of maintaining the
portion added; and
(4) He must pay the increased cost of preservation
of the wall.
He shall be obliged to reconstruct the wall at his
expense if it is necessary so that the wall can bear
the increased height, and if additional thickness is
required, he shall provide the space therefor from
his own land. The other owners cannot object to
the work as long as the above conditions are
complied with. The owner who makes the addition
acquires ownership therefor unless the other
owners avail of their right under Article 665 by
paying proportionately the value of the work at the
time of the acquisition (not construction) and of
the land used for the wall’s increased thickness.
vii. Proportional use (Art. 666)
Article 666. Every part-owner of a party wall may use it in
proportion to the right he may have in the co-ownership,
without interfering with the common and respective uses by
the other co-owners. (579a)
NOTES:
The part owners share in the expenses of
maintaining a party wall in proportion to the
interest of each. (Art. 662.) They have also a
proportionate right to its use without interfering
with the common and respective uses by the other
co-owners. (see Art. 486.)
Thus, if X owns 2/3 of the party wall and Y, 1/3, X
may use the wall (e.g., insert a beam therein) up to
2/ 3 of its thickness, and Y, up to 1/3. This is just. (I
Capistrano, op. cit., p. 583)
6. Easement of light and view (Art. 667-673)
i. Definition
Article 667. No part-owner may, without the consent of the
others, open through the party wall any window or aperture
of any kind. (580)
a. Easement of light
Easement of light (jus luminum) is the right to
admit light from the neighboring estate by virtue of
the opening of a window or the making of certain
openings. (2 Castan 536; see Art. 667.)
b. Easement of view
Easement of view (jus prospectus) is the right to
make openings or windows, to enjoy the view
through the estate of another and the power to
prevent all constructions or works which would
obstruct such view or make the same difficult.
(Ibid.; see Arts. 670-673.) It necessarily includes
the easement of light. It is possible to have light
only without view.
ii. Prescriptive period (Art. 668)
Article 668. The period of prescription for the acquisition of
an easement of light and view shall be counted:
(1) From the time of the opening of the window, if
it is through a party wall; or
(2) From the time of the formal prohibition upon
the proprietor of the adjoining land or tenement, if
the window is through a wall on the dominant
estate. (n)
a. In positive easement
Where easement positive — It is considered
positive if made through a party wall (No. 1.) or
even if made on one’s own wall, if the window is
on a balcony or projection extending over the
adjoining property. (Fabie v. Lichauco, 11 Phil. 14
[1908]) A party wall is not for the opening of
windows; its purpose is to support the buildings of
the part-owners. When a window is opened
through a party wall, an apparent and continuous
easement (Art 620.) is created from the time of
such opening. But there is no true easement as long
as the right to prevent its use exists.
Under Article 668(1), the adjoining owner can
order the window closed within ten years from the
time of the opening of the window. (Ibid)
b. In negative easement
 Where easement negative — The easement is
considered negative if the window is made through
a wall on the dominant estate. In this case, the ten-
year period of prescription commences from the
time of the formal prohibition upon the adjoining
owner. The “formal prohibition’’ must be an
instrument acknowledged before a notary public.
(Art. 621)
Before the expiration of the prescriptive period, the
window exists by mere tolerance of the adjoining
owner who always retains the right to have it
closed or to build an obstruction, although the
opening was made more than ten years after he
decided to exercise his right. Thus, where the
opening by X was made in 2000 but he made a
formal notarial demand prohibiting Y to obstruct
the view only in 1994, Y may still demand the
closure of the window in 2001.
iii. Openings at height of ceiling joists to admit light
(Art. 669)
Article 669. When the distances in article 670 are not
observed, the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to another,
can make in it openings to admit light at the height of the
ceiling joists or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an
iron grating imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can close
them should he acquire part-ownership thereof, if there be
no stipulation to the contrary.
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having
such openings, unless an easement of light has been acquired.
(581a)
NOTES:
(1) Wall is not a party wall. — The owner of a wall
which is not a party wall may make an opening for
the purpose of admitting light and air, but not for
view. The restrictions are the following:
(a) The size must not exceed thirty centimeters
square;
(b) The opening must be at the height of the ceiling
joists or immediately under the ceiling;
(c) There must be an iron grating imbedded in the
wall; and
(d) There must be a wire screen.
(2) Wall becomes a party wall. — If a wall becomes
a party wall, a part-owner can order the closure of
the opening (par. 2.) because no part-owner may
make an opening through a party wall without the
consent of the others. (Art. 667.) It can also
obstruct the opening unless an easement of light
has been acquired (par. 3) by prescription (Art.
668) in which case the servient owner may not
impair the easement
iv. Direct and oblique views (Art. 670-671)
Article 670. No windows, apertures, balconies, or other
similar projections which afford a direct view upon or
towards an adjoining land or tenement can be made, without
leaving a distance of two meters between the wall in which
they are made and such contiguous property.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of
sixty centimeters.
The non-observance of these distances does not give rise to
prescription. (582a)
Article 671. The distance referred to in the preceding article
shall be measured in cases of direct views from the outer line
of the wall when the openings do not project, from the outer
line of the latter when they do, and in cases of oblique view
from the dividing line between the two properties. (583)
NOTES:
Article 670 requires a distance of two meters for
direct view and sixty centimeters for oblique (or
side) view, while Article 671 provides the manner
of measuring the distance. The distance for oblique
view is much shorter obviously because of the
difficulty of affording a full view of the adjoining
tenement.
An owner can build within the minimum distance
or even up to the dividing line provided no
window is opened except as provided in Article
669.
When windows are opened, without observing the
required legal distances, the adjoining owner has a
right to have them closed. (Chico v. Santamaria,
supra) Under paragraph 3 of Article 670, the non-
observance of the distances does not give rise to
prescription. This means that the mere opening of
the windows in violation of Article 670 does not
give rise to the servitude by prescription. Article
670 refers to a negative easement because the
window is through a wall of the dominant estate
(Art. 668[2].) and so the cause of action does not
accrue from the mere opening of the window.
Prescription may still be acquired as a negative
easement after ten years from the time of notarial
prohibition.
v. Where buildings separated by a public way or
alley (Art. 672)
Article 672. The provisions of article 670 are not applicable
to buildings separated by a public way or alley, which is not
less than three meters wide, subject to special regulations and
local ordinances. (584a)
NOTES:
The distance provided in Article 670 is not
compulsory where there is a public way or alley
 provided that it is not less than three meters wide.
The minimum width is necessary for the sake of
privacy and safety. (Report of the Code
Commission, p. 99)
The width of the way or alley is, however, subject
to special regulations and local ordinances. A
private alley opened to the use of the general
public falls within the provision of Article 672.
(Masongsong v. Flores, 57 Phil. 243 [1932])
vi. Where easement of direct view has been
acquired (Art. 673)
Article 673. Whenever by any title a right has been acquired
to have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in article 671. Any
stipulation permitting distances less than those prescribed in
article 670 is void. (585a)
NOTES:
The word “title,’’ as used in Article 673, refers to
any of the modes of acquiring easements, namely,
contract, will, donation, or prescription. (see Art.
620.) Whenever the easement of direct view has
been acquired by any such title, there is created a
true easement; the owner of the servient estate
cannot build thereon at less than a distance of three
meters from the boundary line.
The distance may be increased or decreased by
stipulation of the parties provided that in case of
decrease, the minimum distance of two meters or
sixty centimeters prescribed in Article 670 must be
observed; otherwise, the stipulation shall be void.
The said distances involve considerations of public
policy and the general welfare; hence, they should
not be rendered ineffective by stipulation. (I
Capistrano, op. cit., p. 588)
7. Drainage of buildings (Art. 674-676)
SECTION 6
Drainage of Buildings
Article 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public place,
and not on the land of his neighbor, even though the
adjacent land may belong to two or more persons, one of
whom is the owner of the roof. Even if it should fall on his
own land, the owner shall be obliged to collect the water in
such a way as not to cause damage to the adjacent land or
tenement. (586a)
Article 675. The owner of a tenement or a piece of land,
subject to the easement of receiving water falling from roofs,
may build in such manner as to receive the water upon his
own roof or give it another outlet in accordance with local
ordinances or customs, and in such a way as not to cause any
nuisance or damage whatever to the dominant estate. (587)
Article 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can be
demanded, giving an outlet to the water at the point of the
contiguous lands or tenements where its egress may be
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate,
after payment of the property indemnity. (583)
8. Intermediate distances and works for certain construction
and plantings (Art. 677-681)
SECTION 7
Intermediate Distances and Works for Certain Constructions
and Plantings
Article 677. No constructions can be built or plantings made
near fortified places or fortresses without compliance with
the conditions required in special laws, ordinances, and
regulations relating thereto. (589)
Article 678. No person shall build any aqueduct, well, sewer,
furnace, forge, chimney, stable, depository of corrosive
substances, machinery, or factory which by reason of its
nature or products is dangerous or noxious, without
observing the distances prescribed by the regulations and
customs of the place, and without making the necessary
protective works, subject, in regard to the manner thereof, to
the conditions prescribed by such regulations. These
prohibitions cannot be altered or renounced by stipulation
on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be taken
as may be considered necessary, in order to avoid any
damage to the neighboring lands or tenements. (590a)
Article 679. No trees shall be planted near a tenement or
piece of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and, in
the absence thereof, at a distance of at least two meters from
the dividing line of the estates if tall trees are planted and at
a distance of at least fifty centimeters if shrubs or small trees
are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which have
grown spontaneously. (591a)
Article 680. If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the owner of
the latter shall have the right to demand that they be cut off
insofar as they may spread over his property, and, if it be the
roots of a neighboring tree which should penetrate into the
land of another, the latter may cut them off himself within
his property. (592)
Article 681. Fruits naturally falling upon adjacent land
belong to the owner of said land. (n)
9. Easement against nuisance (Art. 682-683)
 SECTION 8
Easement Against Nuisance (n)
Article 682. Every building or piece of land is subject to the
easement which prohibits the proprietor or possessor from
committing nuisance through noise, jarring, offensive odor,
smoke, heat, dust, water, glare and other causes.
Article 692. The title and, in a proper case, the possession of
an easement acquired by prescription shall determine the
rights of the dominant estate and the obligations of the
servient estate. In default thereof, the easement shall be
governed by such provisions of this Title as are applicable
thereto. (598)

Article 683. Subject to zoning, health, police and other laws
and regulations, factories and shops may be maintained
provided the least possible annoyance is caused to the
neighborhood.
10. Lateral and subjacent support (Arts. 684-687)
Article 693. If the owner of the servient estate should have
bound himself, upon the establishment of the easement, to
bear the cost of the work required for the use and
preservation thereof, he may free himself from this
obligation by renouncing his property to the owner of the
dominant estate. (599)

SECTION 9
Lateral and Subjacent Support (n)

Article 684. No proprietor shall make such excavations upon

his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support.

Article 685. Any stipulation or testamentary provision

allowing excavations that cause danger to an adjacent land or
building shall be void.

Article 686. The legal easement of lateral and subjacent

support is not only for buildings standing at the time the
excavations are made but also for constructions that may be
erected.

Article 687. Any proprietor intending to make any

excavation contemplated in the three preceding articles shall
notify all owners of adjacent lands.

c. VOLUNTARY EASEMENTS (Arts. 688-693)

Article 688. Every owner of a tenement or piece of land may

establish thereon the easements which he may deem
suitable, and in the manner and form which he may deem
best, provided he does not contravene the laws, public policy
or public order. (594)

Article 689. The owner of a tenement or piece of land, the

usufruct of which belongs to another, may impose thereon,
without the consent of the usufructuary, any servitudes
which will not injure the right of usufruct. (595)

Article 690. Whenever the naked ownership of a tenement

or piece of land belongs to one person and the beneficial
ownership to another, no perpetual voluntary easement may
be established thereon without the consent of both owners.
(596)

Article 691. In order to impose an easement on an undivided

tenement, or piece of land, the consent of all the co-owners
shall be required.

The consent given by some only, must be held in abeyance

until the last one of all the co-owners shall have expressed
his conformity.

But the consent given by one of the co-owners separately

from the others shall bind the grantor and his successors not
to prevent the exercise of the right granted. (597a)
 (1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of water;
or
(5) Hinders or impairs the use of property.

Article 695. Nuisance is either public or private. A public

nuisance affects a community or neighborhood or any
considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be
unequal. A private nuisance is one that is not included in the
foregoing definition.

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 therefor in
the same manner as the one who created it.

Article 697. The abatement of a nuisance does not preclude

the right of any person injured to recover damages for its
past existence.

Article 698. Lapse of time cannot legalize any nuisance,

whether public or private.

Article 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.

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

Article 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.

Article 702. The district health officer shall determine

whether or not abatement, without judicial proceedings, is
the best remedy against a public nuisance.

Article 703. A private person may file an action on account

of a public nuisance, if it is specially injurious to himself.

Article 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
VIII. NUISANCE (Arts. 694-707) the local police; and
(4) That the value of the destruction does not exceed
Article 694. A nuisance is any act, omission, establishment, three thousand pesos.
business, condition of property, or anything else which:
Article 705. The remedies against a private nuisance are:
 (1) A civil action; or
(2) Abatement, without judicial proceedings.
Article 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.
Article 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 nuisance.
a. Definition and Concept (Art. 694)
Article 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of
others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality;
or
(4) Obstructs or interferes with the free passage of
any public highway or street, or any body of water;
or
(5) Hinders or impairs the use of property.
b. Public and private nuisances (Art. 695)
Article 695. Nuisance is either public or private. A public
nuisance affects a community or neighborhood or any
considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be
unequal. A private nuisance is one that is not included in the
foregoing definition.
c. Mixed nuisances
A thing may be a private nuisance without being a public
one or a public nuisance without being a private one. On
the other hand, a nuisance may be both public and private
in character; it may be a public nuisance because it violates
public rights to the injury of many persons, and it may also
be private in character in that it produces special injury to
private rights (see Art. 703.) to any extent beyond the injury
to the public
Nuisance of this kind are generally called mixed nuisances.
Thus:
(1) A house abutting on a street railway track is a
private nuisance to the railway company and a public
nuisance because it obstructs the street.
(2) Raising and breeding animals (pigs, goats and
sheep) for commercial purposes in a vicinity that is fast
becoming a fashionable residential district and where it is
shown that the place where the animals are kept are found
to be unsanitary on account of the offensive odors,
pernicious to health, coming from manure scattered
therein, stagnant water, etc. constitutes both public and
private nuisance. (58 Am. Jur. 2d 559-561.)
(3) The keeping or storage of gasoline may
constitute a nuisance, either private or public. Whether or
not it becomes a nuisance depends upon the location, the
quantity, and other surrounding circumstances. While it
would not necessarily depend upon the degree of care used
in the storage, the manner in which the tanks are
constructed and operated may be considered. (Javier v.
Ozaeta, 64 Phil. 626 [1937])
d. Per Se and Per Accidens
1. Definitions
(1) Nuisance per se is an act, occupation, or
structure which unquestionably is a nuisance at all times
and under any circumstances, regardless of location or
surroundings. It is anything which of itself is a nuisance
because of its inherent qualities, productive of injury or
dangerous to life or property without regard to
circumstance. (see 58 Am. Jur. 2d 568-569.)
(2) Nuisance per accidens is an act, occupation, or
structure, not a nuisance per se, but which may become a
nuisance by reason of circumstances, location, or
surroundings. Thus, raising and breeding pigs in a house
within city limits is a nuisance per accidens.
2. Distinctions
The difference between nuisance per se and nuisance per
accidens lies in the proof, not in the remedy. The
responsibility for a nuisance for either sort is the same.
(1) In the case of a nuisance per se, the thing
becomes a nuisance as a matter of law. Its existence need
only be proved in any locality, without a showing of
specific damages, and the right to relief is established by
averment and proof of the mere act. But whether a thing
not a nuisance per se is a nuisance per accidens or in fact,
depends upon its location and surroundings, the manner of
its conduct or other circumstances, and in such cases, proof
of the act and its consequences is necessary. The act or
thing complained of must be shown by evidence to be a
nuisance under the law, and whether it is a nuisance or not
is generally a question of fact. (see 58 Am. Jur. 2d 569.)
(2) As nuisance per se affects the immediate safety
of persons and property, they may be summarily abated
under the undefined law of necessity. But if the nuisance be
per accidens, even the municipal authorities, under their
power to declare and abate nuisances, would not have the
right to compel the abatement of a particular thing or act as
a nuisance without reasonable notice to the person alleged
to be maintaining or doing the same at the time and place of
hearing before a tribunal authorized to decide whether such
a thing or act does in law constitute a nuisance.
(Monteverde v. Generoso, 52 Phil. 23 [1928])
e. Doctrine attractive nuisance
(1) Reason for doctrine. — The doctrine of
attractive nuisance has been stated, in short, as follows:
“One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to
attract children in play, and who fails to exercise ordinary
care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is
injured thereby, even if the child is technically a trespasser
in the premises. The principal reason for the doctrine is that
the condition or appliance in question although its danger is
apparent to those of age, is so enticing or alluring to
children of tender years as to induce them to approach, get
on or use it, and this attractiveness is an implied invitation
to such children.’’ (Hidalgo Enterprises, Inc. v. Balandan, 91
Phil. 488 [1952]; Taylor v. Manila Electric Railroad and
Light Co., 16 Phil. 8 [1910]; 65 C.J.S. 455, 458)
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
three thousand pesos.
i. Remedies against a private nuisance (Art.
705)

(2) Application to bodies of water. — The attractive
nuisance doctrine generally is not applicable to bodies of
water, artificial as well as natural in the absence of some
unusual condition or artificial feature other than the mere
water and its location. Thus, a swimming pool or pond or
reservoir of water is not considered an attractive nuisance.
Article 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
j. Abatement of nuisance, liability and rights (Art.
697, 706)

f. Liability of successor of property constituting a nuisance
(Art. 696)
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 therefor in
the same manner as the one who created it.
g. Effect of lapse of time (Art. 698)
Article 698. Lapse of time cannot legalize any nuisance,
whether public or private.
Article 697. The abatement of a nuisance does not preclude
the right of any person injured to recover damages for its
past existence.
Article 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.

h. Remedies against a public nuisance (Art. 699)

Article 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.

1. Role of district health officer and others (Art.

700-702)

Article 700. The district health officer shall take care that
one or all of the remedies against a public nuisance are
availed of.
IX. DIFFERENT MODES OF ACQUIRING
Article 701. If a civil action is brought by reason of the OWNERSHIP
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor.
a. PRELIMINARY PROVISIONS

Article 702. The district health officer shall determine

1. Different modes of acquiring ownership and other real
whether or not abatement, without judicial proceedings, is
rights
the best remedy against a public nuisance.
Article 712. Ownership is acquired by occupation and by
2. Right of private person to file (Art. 703-704)
intellectual creation.

Article 703. A private person may file an action on account

Ownership and other real rights over property are acquired
of a public nuisance, if it is specially injurious to himself.
and transmitted by law, by donation, by testate and intestate
succession, and in consequence of certain contracts, by
Article 704. Any private person may abate a public nuisance
tradition.
which is specially injurious to him by removing, or if
They may also be acquired by means of prescription. (609a)
i. Original modes
ii. Derivative modes
X. OCCUPATION (Arts. 713-720)
Article 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. (610)
Article 714. The ownership of a piece of land cannot be
acquired by occupation. (n)
Article 715. The right to hunt and to fish is regulated by
special laws. (611)
Article 716. The owner of a swarm of bees shall have a right
to pursue them to another's land, indemnifying the possessor
of the latter for the damage. If the owner has not pursued the
swarm, or ceases to do so within two consecutive days, the
possessor of the land may occupy or retain the same. The
owner of domesticated animals may also claim them within
twenty days to be counted from their occupation by another
person. This period having expired, they shall pertain to him
who has caught and kept them. (612a)
Article 717. Pigeons and fish which from their respective
breeding places pass to another pertaining to a different
owner shall belong to the latter, provided they have not been
enticed by some article or fraud. (613a)
Article 718. He who by chance discovers hidden treasure in
another's property shall have the right granted him in article
438 of this Code. (614)
Article 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
two 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 eight days after the
publication.
Six 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. (615a)
Article 720. If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, one-tenth of the
sum or of the price of the thing found. (616a)
a. Definition
Article 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. (610)
NOTES:
(1) In the light of Article 713, occupation may be
defined as the appropriation of things appropriable by
nature which are without an owner.
(2) The term has also been defined as “a mode of
acquiring dominion by the seizure of things corporeal
which have no owner, with the intention of acquiring
them, and according to the rules laid down by law.’’ (3
Sanchez Roman 210)
(3) A shorter definition refers to it as “the seizure
of things corporeal which have no owner with the intention
of acquiring the ownership thereof.’’ (1 De la Serna 589.)
b. Requisites
They are as follows:
(1) There must be seizure of a thing;
(2) The thing seized must be corporeal personal
property;
(3) The thing must be susceptible of appropriation
by nature;
(4) The thing must be without an owner;
(5) There must be an intention to appropriate; and
(6) The requisites or conditions laid down by law must be
complied with.
The rules for the acquisition of ownership by occupation
are contained in Articles 713 to 720. Under Article 560,
wild animals are considered possessed only while they are
under one’s control.
c. Vs. possession
The distinctions are the following:
(1) Occupation is a mode of acquiring ownership,
while possession merely raises the presumption of
ownership when it is exercised in the concept of owner;
(2) Occupation refers only to corporeal personal
property, while possession may be exercised over any kind
of property, whether real or personal, corporeal or
incorporeal;
(3) Occupation requires that the object thereof be
without an owner, while possession may refer to property
owned by somebody;
(4) Occupation requires that there be an intent to
acquire ownership, while possession may be had in the
concept of mere holder;
(5) Occupation may not take place without some
form of possession, while possession may exist without
occupation;
(6) Occupation is of short duration, while
possession is generally of longer duration; and
 (7) Occupation by itself cannot lead to another
mode of acquisition, while possession may lead to another
mode which is prescription.
d. Occupation of/ Right to:
1. Land (Art. 714)
Article 714. The ownership of a piece of land cannot be
acquired by occupation. (n)
2. Hunt and fish (Art. 715)
Article 715. The right to hunt and to fish is regulated by
special laws. (611)
3. Swarm of bees and domesticated animals (Art.
716)
Article 716. The owner of a swarm of bees shall have a right
to pursue them to another's land, indemnifying the possessor
of the latter for the damage. If the owner has not pursued the
swarm, or ceases to do so within two consecutive days, the
possessor of the land may occupy or retain the same. The
owner of domesticated animals may also claim them within
twenty days to be counted from their occupation by another
person. This period having expired, they shall pertain to him
who has caught and kept them. (612a)
4. Pigeons and fish (Art. 717)
Article 717. Pigeons and fish which from their respective
breeding places pass to another pertaining to a different
owner shall belong to the latter, provided they have not been
enticed by some article or fraud. (613a)
5. Hidden treasure (Art. 718)
Article 718. He who by chance discovers hidden treasure in
another's property shall have the right granted him in article
438 of this Code. (614)
6. Movable property (Art. 719-720)
Article 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
two 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 eight days after the
publication.
Six 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. (615a)
Article 720. If the owner should appear in time, he shall be
obliged to pay, as a reward to the finder, one-tenth of the
sum or of the price of the thing found. (616a)
XI. DONATION (Arts. 725-773)
TITLE III
DONATION
CHAPTER 1
Nature of 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. (618a)
Article 726. When a person gives to another a thing or right
on account of the latter's merits or of the services rendered
by him to the donor, provided they do not constitute a
demandable debt, or when the gift imposes upon the donee a
burden which is less than the value of the thing given, there
is also a donation. (619)
Article 727. Illegal or impossible conditions in simple and
remuneratory donations shall be considered as not imposed.
(n)
Article 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. (620)
Article 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. (n)
Article 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. (n)
Article 731. When a person donates something, subject to
the resolutory condition of the donor's survival, there is a
donation inter vivos. (n)
Article 732. Donations which are to take effect inter vivos
shall be governed by the general provisions on contracts and
obligations in all that is not determined in this Title. (621)
Article 733. Donations with an onerous cause shall be
governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards
that portion which exceeds the value of the burden imposed.
(622)
Article 734. The donation is perfected from the moment the
donor knows of the acceptance by the donee. (623)
CHAPTER 2
Persons Who May Give or Receive a Donation
Article 735. All persons who may contract and dispose of
their property may make a donation. (624)
Article 736. Guardians and trustees cannot donate the
property entrusted to them. (n)
Article 737. The donor's capacity shall be determined as of
the time of the making of the donation. (n)
Article 738. All those who are not specially disqualified by
law therefor may accept donations. (625)
Article 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. (n)
Article 740. Incapacity to succeed by will shall be applicable
to donations inter vivos. (n)
Article 741. Minors and others who cannot enter into a
contract may become donees but acceptance shall be done
through their parents or legal representatives. (626a)
Article 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born. (627)
Article 743. Donations made to incapacitated persons shall be
void, though simulated under the guise of another contract
or through a person who is interposed. (628)
Article 744. Donations of the same thing to two or more
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons. (n)
Article 745. The donee must accept the donation personally,
or through an authorized person with a special power for the
purpose, or with a general and sufficient power; otherwise,
the donation shall be void. (630)
Article 746. Acceptance must be made during the lifetime of
the donor and of the donee. (n)
Article 747. Persons who accept donations in representation
of others who may not do so by themselves, shall be obliged
to make the notification and notation of which article 749
speaks. (631)
Article 748. The donation of a movable may be made orally
or in writing.
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be
made in writing. Otherwise, the donation shall be void.
(632a)
Article 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. (633)
CHAPTER 3
Effect of Donations and Limitations Thereon
Article 750. The donation may comprehend all the 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 of all 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 in petition of any person affected.
(634a)
Article 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635)
Article 752. The provisions of article 750 notwithstanding,
no person may give or receive, by way of donation, more
than he may give or receive by will.
The donation shall be inofficious in all that it may exceed
this limitation. (636)
Article 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there shall
be no right of accretion among them, unless the donor has
otherwise provided.
The preceding paragraph shall not be applicable to donations
made to the husband and wife jointly, between whom there
shall be a right of accretion, if the contrary has not been
provided by the donor. (637)
Article 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the donor.
The latter, on the other hand, is not obliged to warrant the
things donated, save when the donation is onerous, in which
case the donor shall be liable for eviction to the concurrence
of the burden.
The donor shall also be liable for eviction or hidden defects
in case of bad faith on his part. (638a)
Article 755. The right to dispose of some of the things
donated, or of some amount which shall be a charge thereon,
may be reserved by the donor; but if he should die without
having made use of this right, the property or amount
reserved shall belong to the donee. (639)
Article 756. The ownership of property may also be donated
to one person and the usufruct to another or others, provided
all the donees are living at the time of the donation. (640a)
Article 757. Reversion may be validly established in favor of
only the donor for any case and circumstances, but not in
favor of other persons unless they are all living at the time of
the donation.
Any reversion stipulated by the donor in favor of a third
person in violation of what is provided in the preceding
paragraph shall be void, but shall not nullify the donation.
(614a)
Article 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does
not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear to
have been previously contracted. In no case shall the donee
be responsible for the debts exceeding the value of the
property donated, unless a contrary intention clearly
appears. (642a)
Article 759. There being no stipulation regarding the
payment of debts, the donee shall be responsible therefor
only when the donation has been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve sufficient
property to pay his debts prior to the donation. (643)
CHAPTER 4
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 as provided in the next article, by the happening of
any of these events:
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate children,
even though they be 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 subsequently adopt a minor child.
(644a)
Article 761. In the cases referred to in the preceding article,
the donation shall be revoked or reduced insofar as it exceeds
the portion that may be freely disposed of by will, taking
into account the whole estate of the donor at the time of the
birth, appearance or adoption of a child. (n)
Article 762. Upon the revocation or reduction of the
donation by the birth, appearance or adoption of a child, the
property affected shall be returned or its value if the donee
has sold the same.
If the property is mortgaged, the donor may redeem the
mortgage, by paying the amount guaranteed, with a right to
recover the same from the donee.
When the property cannot be returned, it shall be estimated
at what it was worth at the time of the donation. (645a)
Article 763. The action for revocation or reduction on the
grounds set forth in article 760 shall prescribe after four
years from the birth of the first child, or from his
legitimation, recognition or adoption, or from the judicial
declaration of filiation, or 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. (646a)
Article 764. The donation shall be revoked at the instance of
the donor, when the donee fails to comply with any of the
conditions which the former imposed upon the latter.
In this case, the property donated shall be returned to the
donor, the alienations made by the donee and the mortgages
imposed thereon by him being void, with the limitations
established, with regard to third persons, by the Mortgage
Law and the Land Registration laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to
the heirs of the donor, and may be exercised against the
donee's heirs. (647a)
Article 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 imputes 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. (648a)
Article 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
effected before the notation of the complaint for revocation
in the Registry of Property shall subsist.
Later ones shall be void. (649)
Article 767. In the case referred to in the first paragraph of
the preceding article, the donor shall have a right to demand
from the donee the value of property alienated which he
cannot recover from third persons, or the sum for which the
same has been mortgaged.
The value of said property shall be fixed as of the time of the
donation. (650)
Article 768. When the donation is revoked for any of the
causes stated in article 760, or by reason of ingratitude, or
when it is reduced because it is inofficious, the donee shall
not return the fruits except from the filing of the complaint.
If the revocation is based upon noncompliance with any of
the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof which
he may have received after having failed to fulfill the
condition. (651)
Article 769. The action granted to the donor by reason of
ingratitude cannot be renounced in advance. This action
prescribes within one year, to be counted from the time the
donor had knowledge of the fact and it was possible for him
to bring the action. (652)
Article 770. This action shall not be transmitted to the heirs
of the donor, if the latter did not institute the same, although
he could have done so, and even if he should die before the
expiration of one year.
Neither can this action be brought against the heir of the
donee, unless upon the latter's death the complaint has been
filed. (653)
Article 771. Donations which in accordance with the
provisions of article 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 articles 911 and 912 of this Code shall govern. (654)
Article 772. Only those who at the time of the donor's death
have a right to the legitime and their heirs and successors in
interest may ask for the reduction or inofficious donations.
Those referred to in the preceding paragraph cannot
renounce their right during the lifetime of the donor, either
by express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled to
the legitime and the creditors of the deceased can neither ask
for the reduction nor avail themselves thereof. (655a)
Article 773. If, there being two or more donations, the
disposable portion is not sufficient to cover all of them, those
of the more recent date shall be suppressed or reduced with
regard to the excess. (656)
a. NATURE OF DONATIONS
1. Concept, nature and effect
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. (618a)
NOTES:
Concept of donation
In its generic sense, the term donation includes all forms of
gratuitous dispositions. As defined by Article 725, it is to be
considered apart from donations mortis causa (Art. 728) and
condonation or remission of debt (or renunciation of an
acquired right) which are governed elsewhere by the Civil
Code and from donations propter nuptias which are
governed by the Family Code (infra.)
The donation the article speaks of and which is governed by
Title III is the donation proper or the true (or real)
donation. It is sometimes simply referred to as “ordinary
donation’’ as opposed to the other kinds of donation.
Nature and effect of donation
(1) Although Article 725 defines donation as an act,
it is really a contract (Art. 1305.), with all the essential
requisites (consent of both parties, subject matter and cause)
of a contract. (Art. 1318.) It falls under contracts of pure
beneficence, the consideration being the mere liberality of
the benefactor. (Art. 1350.) Thus, a stipulation in a deed of
donation that it was made for and in consideration of the
“love and affection’’ which the donor feels for the donee is a
sufficient cause for a donation.
The legal provisions on contracts suppletorily apply to
donation. However, the Civil Code considers donation not
among the contracts that transfer ownership but as a
particular mode of acquiring and transmitting
ownership. (Art. 712, par. 2)
(2) As a mode of acquiring ownership, donation
results in an effective transfer of title over the property
is perfected from the
from the donor to the donee and
moment the donor is made aware of the
acceptance by the donee (Art. 734.), provided that the
donee is not disqualified or prohibited by law from
accepting the donation. (Art. 738.) Once the donation is
accepted, it is generally considered irrevocable, and the
donee becomes owner of the property, except on account of
officiousness, failure of the donee to comply with the
charge imposed on the donation, or ingratitude. (Heirs of R.
Florencio v. Heirs T. De Leon, 425 SCRA 447 [2004])
The effect of donation is to reduce the patrimony or asset of
the donor and to increase that of the donee. Hence, the
giving of a mortgage or any other security does not
constitute a donation.
2. Requisites
CIDA
They are as follows:
(1) The donor must have capacity to make the donation of a
thing or right;
(2) He must have the donative intent (animus donandi) or
intent to make the donation out of liberality to benefit the
donee;
(3) There must be delivery, whether actual or constructive,
of the thing or right donated; and
(4) The donee must accept or consent to the donation.
In certain donations, the form prescribed by law must be
followed. (see Arts. 748-749.) The subject matter of a
donation may be a thing or right. A person may be a donee
although he is incapacitated to enter into a contract (Art.
741.) if he is not specially disqualified by law to accept
donations. (Art. 738.)
It is not enough that the act is gratuitous; there must be an
intent to benefit the donee. Thus, commodatum is
gratuitous, but it is not a donation.
The acceptance or consent of the donee is required because
no one can be obliged to receive a benefit against his will.
This requirement shows the law’s respect for individual
will. (5 Manresa 70-71.) It applies to all kinds of donations
because the law does not make any distinction. Since a
donation mortis causa takes effect only after the donor’s
death (infra.), it is only after the latter’s death that
acceptance of the donation may be made.
3. Kinds
i. As to consideration (Art. 725, 726, 733)
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. (618a)
Article 726. When a person gives to another a thing or right
on account of the latter's merits or of the services rendered
by him to the donor, provided they do not constitute a
demandable debt, or when the gift imposes upon the donee a
burden which is less than the value of the thing given, there
is also a donation. (619)
Article 733. Donations with an onerous cause shall be
governed by the rules on contracts and remuneratory
donations by the provisions of the present Title as regards
that portion which exceeds the value of the burden imposed.
(622)
NOTES:
As to consideration:
(a) Pure or simple or that the cause of which is the
pure liberality of the donor (Art. 725.) in consideration of
the donee’s merits (Art. 726.) This is donation in its truest
form;
(b) Remuneratory or compensatory or that which is
given out of gratitude on account of the services rendered
by the donee to the donor, provided they do not constitute
a demandable debt (Ibid.);
(c) Modal or that which imposes upon the donee a
burden (e.g., services to be performed in the future) less
than the value of the gift (Ibid.); and
(d) Onerous or that the value of which is
considered the equivalent of the consideration for which it
is given or that made for a valuable consideration and is
thus governed by the rules on obligations and contracts.
(Art. 733.)
ii. As to taking effect (Art. 728-731)
As to effectivity or extinguishment:
(a) Pure or that which is not subject to any
condition (uncertain event) or period (term);
(b) Conditional or that which is subject to a
condition, suspensive or resolutory (see Arts. 730, 731.); and
(c) With a term or that which is subject to a period,
suspensive or resolutory (see Art. 730.)
a. Distinctions (Art. 728, 729)
Article 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. (620)
Article 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. (n)
NOTES:
Distinctions between donations inter vivos and donations
mortis causa
They are as follows:
(1) The first takes effect during the lifetime of the
donor, independently of his death, even if the actual
execution may be deferred until said death, while the
second, upon the death of the donor testator, so that
nothing is conveyed to or acquired by the donee — until
said death;
(2) The first is made out of the donor’s pure
generosity, while the second is made in contemplation of
his death without the intention to lose the thing or its free
disposal in case of survival (Balaqui v. Dongso, 53 Phil. 673
[1929].);
(3) The first is valid even if the donor should
survive the donee, while the second is void should the
donor survive the donee;
(4) The first must follow the formalities of
donations (Arts. 748-749.), while the second must follow
the formalities for the validity of a will (Arts. 728, 805, 806.)
for it is in reality a legacy or devise; otherwise, it is void and
cannot transfer ownership;
(5) The first must be accepted by the donee during
his lifetime, while the second, being in the nature of a
testamentary disposition, can only be accepted after the of acceptance and to alienate the property unless the
donor’s death; contrary has been provided in the deed of `donation.

(6) The first cannot be revoked except for grounds d. Instances of donations inter vivos
provided for by law (Arts. 760, 765.), while the second is
always revocable at any time and for any reason before the The donations given below have also been held to be inter
donor’s death (Puig v. Peñaflorida, 15 SCRA 276 [1965].); vivos.

(7) In the first, the right to dispose of the property (1) Donor warrants title to property over which she
is completely conveyed to the donee (although certain reserved lifetime usufruct
reservations as to possession and enjoyment, for example, (2) Donation accepted by donees who were given
may be made), while in the second, this right is retained by limited right of disposition, with donor reserving beneficial
the donor while he is still alive; and ownership
(3) Donation was executed out of love and affection
(8) The first is subject to donor’s tax (Sec. 98, as well as a recognition of the personal services rendered by
National Internal Revenue Code.), while the second is the donee.
subject to estate tax. (Sec. 84, Ibid) (4) Ownership and possession of property
immediately transferred to donee but his right to fruits to
b. Designation given – not conclusive begin only after donor’s death
(5) Causes of revocation specified
Whether a donation is inter vivos or mortis causa depends (6) Donor states that he makes a perfect,
upon the nature of the disposition made as reflected irrevocable and consummated donation
from the provisions contained in the donation and the (7) Donor and donee prohibited from alienating
intention of the parties as demonstrated by the and encumbering the property
(8) Usufruct reserved by the donor
circumstances attendant upon its execution.
e. Instances of donations mortis causa
Did the donor intend to transfer the ownership of the
property donated upon the execution of the donation? If this
The donations that follow have been held to be mortis
is so, then it is inter vivos; otherwise, it is merely mortis
causa.
causa. (Castro v. Court of Appeals, 27 SCRA 1076 [1969];
Reyes v. Mosqueda, 187 SCRA 661 [1990]; Gestopa v. Court
(1) Registration of deed of donation prohibited
of Appeals, 135 SCAD 233, 342 SCRA 105 [2000])
(2) Donation to take effect and pass title only by
and because of death
In case of doubt, the conveyance should be deemed
(3) Donated properties to be delivered after donor’s
donation mortis causa in order to avoid uncertainty as to
death
the ownership of the property subject to the deed. (Puig v.
(4) Right to dispose and enjoy reserved by donor
Peñaflorida, supra.) The legal principle enunciated in
(5) Donation makes no actual conveyance
Article 1378 is that in case of doubt relative to a gratuitous
contract, the construction must be that entailing “the least
f. Effect of a suspensive condition on donations inter vivos
transmission of rights and interests.’’
(Art. 730)
c. Donations to be delivered after donor’s death
Article 730. The fixing of an event or the imposition of a
suspensive condition, which may take place beyond the
A distinction must be made between the actual donation
natural expectation of life of the donor, does not destroy the
and the execution thereof. That the donation is to have
nature of the act as a donation inter vivos, unless a contrary
effect during the lifetime of the donor does not mean that
intention appears. (n)
the delivery of the property must be made during his life.
g. Effect of resolutory conditions on donations inter vivos
Article 729, a crystallization of the doctrine announced in
(Art. 731)
decided cases (see Alejandro v. Geraldez, 78 SCRA 245
[1977].), speaks of donations in praesenti which take effect
Article 731. When a person donates something, subject to
during the lifetime of the donor but the property shall be
the resolutory condition of the donor's survival, there is a
delivered after the donor’s death. Such donations are inter
donation inter vivos. (n)
vivos although the subject matter is not delivered at once, or
the delivery is to be made post mortem, which is a simple
h. Provisions governing inter vivos donations (Art. 732)
matter of form and does not change the nature of the act.
(Balaqui v. Dongso, 53 Phil. 673 [1919]; see Vita v.
Article 732. Donations which are to take effect inter vivos
Montanano, 194 SCRA 180 [1991])
shall be governed by the general provisions on contracts and
obligations in all that is not determined in this Title. (621)
The fruits shall belong to the donee from the time of
acceptance unless otherwise provided by the donor. Thus,
Article 733. Donations with an onerous cause shall be
where R donates to E a parcel of land to be delivered upon
governed by the rules on contracts and remuneratory
R’s death, E becomes owner upon his acceptance of the
donations by the provisions of the present Title as regards
donation, with the right to receive the fruits from the time
that portion which exceeds the value of the burden imposed.
(622)
4. Perfection of donation (Art. 734)
Article 734. The donation is perfected from the moment the
donor knows of the acceptance by the donee. (623)
b. PERSONS WHO MAY GIVE OR RECEIVE A
DONATION
1. Natural persons, requisites (Art. 735)
Article 735. All persons who may contract and dispose of
their property may make a donation. (624)
2. Corporations, power to make donations (Sec. 36 (9), BP 68)
Among the express powers granted to a corporation under
the Corporation Code (B.P. Blg. 68.), is the power to
contribute to charity. Section 36(9) thereof provides that
every corporation incorporated under the Code has the
power and capacity: “To make reasonable donations,
including those for the public welfare or for hospital,
charitable, cultural, scientific, civic, or similar purposes:
Provided, That no corporation, domestic or foreign, shall
give donations in aid of any political party or candidate or
for purposes of partisan political activity.’’
The provision gives recognition to the growing tendency to
regard charitable gifts as within the scope of corporate
authority. It is based on the view that business corporations
are not organized solely as profit-making enterprises but
also as economic and social institutions with corresponding
public responsibility to aid in the betterment of economic
and social conditions in the community in which such
corporations are doing business.
3. Donation by the guardian or trustee (Art. 736)
Article 736. Guardians and trustees cannot donate the
property entrusted to them. (n)
4. Time for determination of capacity of the donor (Art. 737,
801)
Article 737. The donor's capacity shall be determined as of
the time of the making of the donation. (n)
Article 801. Supervening incapacity does not invalidate an
effective will, nor is the will of an incapable validated by the
supervening of capacity. (n)
5. Capacity of the donee (Art. 738)
Article 738. All those who are not specially disqualified by
law therefor may accept donations. (625)
i. Special disqualifications
a. Civil Code (Art. 739, 740, 743)
Article 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. (n)
Article 740. Incapacity to succeed by will shall be applicable
to donations inter vivos. (n)
Article 743. Donations made to incapacitated persons shall be
void, though simulated under the guise of another contract
or through a person who is interposed. (628)
b. Family Code (Art. 87, 98, 125)
Art. 87. 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 persons living together as
husband and wife without a valid marriage. (133a)
Art. 98. Neither spouse may donate any community
property without the consent of the other. However, either
spouse may, without the consent of the other, make
moderate donations from the community property for
charity or on occasions of family rejoicing or family distress.
(n)
Art. 125. Neither spouse may donate any conjugal
partnership property without the consent of the other.
However, either spouse may, without the consent of the
other, make moderate donations from the conjugal
partnership property for charity or on occasions of family
rejoicing or family distress. (174a)
ii. Donations to minors and other incapacitated
persons (Art. 741)
Article 741. Minors and others who cannot enter into a
contract may become donees but acceptance shall be done
through their parents or legal representatives. (626a)
iii. Donations to conceived and unborn children
(Art. 742)
Article 742. Donations made to conceived and unborn
children may be accepted by those persons who would
legally represent them if they were already born. (627)
iv. Donation of the same thing to different donees
(Art. 744)
Article 744. Donations of the same thing to two or more
different donees shall be governed by the provisions
concerning the sale of the same thing to two or more
different persons. (n)
6. Acceptance of donation
i. Whom made (Art. 745)

Article 745. The donee must accept the donation personally,
or through an authorized person with a special power for the
purpose, or with a general and sufficient power; otherwise,
the donation shall be void. (630)
ii. When made (Art. 746)
Article 746. Acceptance must be made during the lifetime of
the donor and of the donee. (n)
iii. Acceptance by representative (Art. 747)
Article 747. Persons who accept donations in representation
of others who may not do so by themselves, shall be obliged
to make the notification and notation of which article 749
speaks. (631)
7. Formalities
a. Donation of movables (Art. 748)
Article 748. The donation of a movable may be made orally
or in writing.
An oral donation requires the simultaneous delivery of the
thing or of the document representing the right donated.
If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be
made in writing. Otherwise, the donation shall be void.
(632a)
b. Donation of immovables (Art. 749)
Article 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. (633)
c. EFFECT OF DONATIONS AND LIMITATIONS
THEREON
CHAPTER 3
Effect of Donations and Limitations Thereon
Article 750. The donation may comprehend all the 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 of all 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 in petition of any person affected.
(634a)
Article 751. Donations cannot comprehend future property.
By future property is understood anything which the donor
cannot dispose of at the time of the donation. (635)
Article 752. The provisions of article 750 notwithstanding,
no person may give or receive, by way of donation, more
than he may give or receive by will.
The donation shall be inofficious in all that it may exceed
this limitation. (636)
Article 753. When a donation is made to several persons
jointly, it is understood to be in equal shares, and there shall
be no right of accretion among them, unless the donor has
otherwise provided.
The preceding paragraph shall not be applicable to donations
made to the husband and wife jointly, between whom there
shall be a right of accretion, if the contrary has not been
provided by the donor. (637)
Article 754. The donee is subrogated to all the rights and
actions which in case of eviction would pertain to the donor.
The latter, on the other hand, is not obliged to warrant the
things donated, save when the donation is onerous, in which
case the donor shall be liable for eviction to the concurrence
of the burden.
The donor shall also be liable for eviction or hidden defects
in case of bad faith on his part. (638a)
Article 755. The right to dispose of some of the things
donated, or of some amount which shall be a charge thereon,
may be reserved by the donor; but if he should die without
having made use of this right, the property or amount
reserved shall belong to the donee. (639)
Article 756. The ownership of property may also be donated
to one person and the usufruct to another or others, provided
all the donees are living at the time of the donation. (640a)
Article 757. Reversion may be validly established in favor of
only the donor for any case and circumstances, but not in
favor of other persons unless they are all living at the time of
the donation.
Any reversion stipulated by the donor in favor of a third
person in violation of what is provided in the preceding
paragraph shall be void, but shall not nullify the donation.
(614a)
Article 758. When the donation imposes upon the donee the
obligation to pay the debts of the donor, if the clause does
not contain any declaration to the contrary, the former is
understood to be liable to pay only the debts which appear to
have been previously contracted. In no case shall the donee
be responsible for the debts exceeding the value of the
property donated, unless a contrary intention clearly
appears. (642a)
Article 759. There being no stipulation regarding the
payment of debts, the donee shall be responsible therefor
only when the donation has been made in fraud of creditors.
The donation is always presumed to be in fraud of creditors,
when at the time thereof the donor did not reserve sufficient
property to pay his debts prior to the donation. (643)
d. REVOCATION AND REDUCTION OF
DONATIONS
1. Grounds (Art. 760)
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 as provided in the next article, by the happening of
any of these events:
(1) If the donor, after the donation, should have
legitimate or legitimated or illegitimate children,
even though they be 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 subsequently adopt a minor child.
(644a)
2. Extent and basis (Art. 761)
Article 761. In the cases referred to in the preceding article,
the donation shall be revoked or reduced insofar as it exceeds
the portion that may be freely disposed of by will, taking
into account the whole estate of the donor at the time of the
birth, appearance or adoption of a child. (n)
3. Obligation of donee upon revocation or reduction (Art.
762)
Article 762. Upon the revocation or reduction of the
donation by the birth, appearance or adoption of a child, the
property affected shall be returned or its value if the donee
has sold the same.
If the property is mortgaged, the donor may redeem the
mortgage, by paying the amount guaranteed, with a right to
recover the same from the donee.
When the property cannot be returned, it shall be estimated
at what it was worth at the time of the donation. (645a)
4. Prescription (Art. 763)
Article 763. The action for revocation or reduction on the
grounds set forth in article 760 shall prescribe after four
years from the birth of the first child, or from his
legitimation, recognition or adoption, or from the judicial
declaration of filiation, or 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. (646a)
5. Failure to comply with conditions (Art. 764)
Article 764. The donation shall be revoked at the instance of
the donor, when the donee fails to comply with any of the
conditions which the former imposed upon the latter.
In this case, the property donated shall be returned to the
donor, the alienations made by the donee and the mortgages
imposed thereon by him being void, with the limitations
established, with regard to third persons, by the Mortgage
Law and the Land Registration laws.
This action shall prescribe after four years from the
noncompliance with the condition, may be transmitted to
the heirs of the donor, and may be exercised against the
donee's heirs. (647a)
i. Condition, meaning
Meaning of condition. — The word “conditions’’ actually
refers to the obligations, charges or burdens imposed by the
donor for his benefit or that of a third person. So what is
contemplated is an onerous or a modal donation. (see Arts.
726, 733.)
It may also refer to a resolutory condition (see Art. 732.) but
not to a suspensive condition because if the condition is not
fulfilled, the donation never becomes effective
ii. Period to fulfill condition
Period for fulfillment. — The condition must be fulfilled
within the period fixed by the donor. If the donation does
not fix a period, the court shall determine such period as
may under the circumstances have been probably
contemplated by the donor. (see Art. 1197; see Barretto v.
City of Manila, 7 Phil. 416 [1907].)
Where the time for the fulfillment of the condition,
whether suspensive or resolutory, depends upon the
exclusive will of the donee, the starting point from which
the corresponding action must be instituted by the donor
begins with the expiration of a reasonable period and
opportunity for the donee to fulfill what has been charged
upon him by the donor. (Central Phil. University v. Court
of Appeals, 63 SCAD 72, 246 SCRA 511 [1995])
a. Effect of non-fulfillment
Effect of non-fulfillment. — The property donated reverts
to the donor. Furthermore, the fruits of the property which
the donee may have received after having failed to fulfill
the condition have to be returned to the donor. (Art. 768,
par. 2.) If the property has been alienated or mortgaged, the
alienation or mortgage shall be void subject to the rights of
innocent third persons under registration laws who may
have taken the property donated without notice of the
condition imposed. The failure of the donee to comply with
any condition imposed by the donor will not affect said
third persons.
A similar rule is provided with respect to donations revoked
on account of ingratitude. (Art. 766.)
iii. Remedy of donor
Remedy of donor. — In case of non-fulfillment by the
donee of any of the conditions imposed by the donor, the
donation shall be revoked at the instance of the donor.
However, the donor may file instead an action for specific
performance to compel the donee to comply with said
conditions. Having accepted the donation with its Neither can this action be brought against the heir of the
conditions, the donee is bound to the fulfillment of the donee, unless upon the latter's death the complaint has been
same. The action must be brought within four years from filed. (653)
the non-compliance with the condition. (last par.) Under
Article 764, only the donor or his heirs have the personality i. General rule
to question the non-compliance with any of the conditions
imposed by the donor. ii. Exceptions

6. Revocation by reason of ingratitude of the donee (Art.
765)
Article 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 imputes 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. (648a)
7. Effect of revocation on prior alienations and mortgages
(Art. 766)
Article 766. Although the donation is revoked on account of
ingratitude, nevertheless, the alienations and mortgages
effected before the notation of the complaint for revocation
in the Registry of Property shall subsist.
Later ones shall be void. (649)
10. Reduction of inofficious donations
i. When proper (Art. 771)
Article 771. Donations which in accordance with the
provisions of article 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 articles 911 and 912 of this Code shall govern. (654)
ii. Who may ask (Art. 772)
Article 772. Only those who at the time of the donor's death
have a right to the legitime and their heirs and successors in
interest may ask for the reduction or inofficious donations.
Those referred to in the preceding paragraph cannot
renounce their right during the lifetime of the donor, either
by express declaration, or by consenting to the donation.
The donees, devisees and legatees, who are not entitled to
the legitime and the creditors of the deceased can neither ask
for the reduction nor avail themselves thereof. (655a)

8. When donee obliged to return fruits (Art. 768) iii. When there are two or more donations (Art.
773)
Article 768. When the donation is revoked for any of the
causes stated in article 760, or by reason of ingratitude, or
when it is reduced because it is inofficious, the donee shall
not return the fruits except from the filing of the complaint.

If the revocation is based upon noncompliance with any of

the conditions imposed in the donation, the donee shall
return not only the property but also the fruits thereof which
he may have received after having failed to fulfill the
condition. (651)

Article 769. The action granted to the donor by reason of

ingratitude cannot be renounced in advance. This action
prescribes within one year, to be counted from the time the
donor had knowledge of the fact and it was possible for him
to bring the action. (652)

9. Transmission of action for revocation (Art. 770)

Article 770. This action shall not be transmitted to the heirs

of the donor, if the latter did not institute the same, although
he could have done so, and even if he should die before the
expiration of one year.