B.
NATURAL ACCESSION
§ 52. Natural Accession
[52.1] Four Forms
As discussed in supra §40.2, there are four forms of
natural accession:
(1) Alluvion;
(2) Avulsion;
(3) Natural change of course of river; and
(4) Formation of island.
Art. 457. To the owners of lands adjoining the banks
of rivers belong the accretion which they gradually
receive from the effects of the current of the waters.
Art. 458. The owners of estates adjoining ponds or
lagoons do not acquire the land left dry by the
natural decrease of the waters or lose that
inundated by them in extraordinary floods.
§53. Alluvion
[53.1] Definition
Alluvium or alluvion has been defined as the gradual
and imperceptible addition to the banks of rivers314 or
as the increment which lands abutting rivers gradually
receive as a result of the current of the waters.315
Alluvium is the soil deposited on the estate fronting the
river bank, while accretion is the process whereby the
soil is deposited.
[53.2] Riparian Owners Distinguished from Littoral
Owners
The owner of the estate fronting the river bank is called
the riparian owner. Riparian owners are, strictly
speaking, distinct from littoral owners, the latter being
owners of lands bordering the shore of the sea or lakes
or other tidal waters.
[53.3] Rule on Alluvion
The rule on alluvion is embodied in Article 457 of the
New Civil Code which states that “to the owners of lands
adjoining the banks of rivers belong the accretion which
they gradually receive from the effects of the current of
the waters.”
The riparian land, or the land adjoining the bank of the
river is the principal and the alluvial deposits
accumulated gradually along such riparian land
constitute the accessory. The alluvium, by mandate of
Article 457 of the New Civil Code, is automatically
owned by the riparian owner from the moment the soil
deposit can be seen. The same rule applies even if the
riparian land was bought under installment plan, in
which case, the benefits of accretion belong to the
purchaser even when said accretion took place before
the last installment was paid.
The reason behind the law giving the riparian owner the
right to any land or alluvion deposited by a river is to
compensate him for the danger of loss that he suffers
because of the location of his land.
If estates bordering on rivers are exposed to floods and
other evils produced by the destructive force of the
waters and if by virtue of lawful provisions, said estates
are subject to encumbrances and various kinds of
easements, it is proper that the risk or danger which
may prejudice the owners thereof should be
compensated by the right of accretion.
[53.4] Requisites of Alluvion
Accretion as a mode of acquiring property under Article
457 requires the concurrence of the following requisites:
(1) that the accumulation of soil or sediment be gradual
and imperceptible;
(2) that it be the result of the action of the waters of the
river; and
(3) that the land where the accretion takes place is
adjacent to the banks of the river.
These are called the rules on alluvion which if present
in a case, give to the owners of lands adjoining the
banks of rivers or streams any accretion gradually
received from the effects of the currents of waters.
[53.4.1] First Requisite
A sudden and forceful action like that of flooding is
hardly the alluvial process contemplated under Article
457 of the New Civil Code.
It is the slow and hardly perceptible accumulation of soil
deposits that the law grants to the riparian owner. This
is what distinguishes alluvion from avulsion. In alluvion,
the deposit of soil is gradual and imperceptible; whereas
in avulsion, it is sudden and abrupt.
[53.4.2] Second Requisite
The requirement that the deposit should be due to the
effect of the current of the river is indispensable. This
excludes from Article 457 of the New Civil Code all
deposits caused by human intervention. Alluvion must
be the exclusive work of nature.325 Hence, the riparian
owner does not acquire the additions to his land caused
by special works expressly intended or designed to
bring about accretion.
[53.4.3] Third Requisite
Under Article 457, the accretion must take place on a
land adjacent to the banks of the river. Note, however,
that while Article 457 mentions only of accretions on the
banks of rivers, this must be interpreted in conjunction
with Article 84 of the Spanish Law of Waters which
provides:
“Accretions deposited gradually upon land contiguous
to creeks, streams, rivers and lakes, by accessions or
sediments from the water thereof, belong to the owners
of such lands.”
But with respect to a creek, it must have regular and
continuous current. The rule does not apply to canals or
esteros which are not creeks and have no current but
are simply drainage system.
The Laguna de Bay, on the other hand, is a lake, the
accretion on which, by the express mandate of Article
84 of the Spanish Law of Waters cited above, belongs
to the owners of the land contiguous thereto.
[53.5] Right of Riparian Owner to Alluvium Is Ipso
Jure
The right of the owners of the bank adjacent to rivers to
the accretion which they receive by virtue of the action
of the waters of the river is ipso jure and there is no need
of an action of the owner of the bank to possess the new
addition since it belongs to him by the very fact of the
addition.
However, such accretion does not automatically
become registered land just because the lot which
receives the same is covered by Torrens title. Thus, the
accretion to registered land does not preclude
acquisition of the additional area by another person
through prescription.
[53.6] Exception to the Rule on Alluvion
Article 458 of the New Civil Code serves as an
exception to the general rule on alluvion. It is noteworthy
that this article refers only to ponds and lagoons but is
not applicable to a lake since with regard to a lake the
rule of alluvion is applicable in accordance with the
Spanish Law of Waters.
[54.1] Definition
Avulsion has been defined as the accretion which takes
place when the current of a river, creek or torrent
segregates a known portion of land from an estate on
its banks and transfers it to another estate. Or, the
accretion taking place in the estate on the bank of a river
caused not by the slow and constant action of the
waters but by the violent and sudden action of a torrent.
Art. 461. River beds which are abandoned through
the natural change in the course of the water’s ipso
facto belong to the owners whose lands are
occupied by the new course in proportion to the
area lost. However, the owners of the lands
adjoining the old bed shall have the right to acquire
the same by paying the value thereof, which value
shall not exceed the value of the area occupied by
the new bed.
Art. 464. Islands which may be formed on the seas
within the jurisdiction of the Philippines, on lakes,
and on navigable or floatable rivers belong to the
State.
Art. 467. The principal thing, as between two things
incorporated, is deemed to be that to which the
other has been united as an ornament, or for its use
or perfection.
Art. 468. If it cannot be determined by the rule given
in the preceding article which of the two things
incorporated is the principal one, the thing of the
greater value shall be so considered, and as
between two things of equal value, that of the
greater volume.
In painting and sculpture, writings, printed matter,
engraving and lithographs, the board, metal, stone,
canvas, paper or parchment shall be deemed the
accessory thing.
QUIETING OF TITLE (n)
Art. 476. Whenever there is a cloud on title to real
property or any interest therein, by reason of any
instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective
but is in truth and in fact invalid, ineffective,
voidable, or unenforceable, and may be prejudicial
to said title, an action may be brought to remove
such cloud or to quiet the title.
An action may also be brought to prevent a cloud
from being cast upon title to real property or any
interest therein.
Chapter 4
RUINOUS BUILDINGS AND TREES
IN DANGER OF FALLING
Art. 482. If a building, wall, column, or any other
construction is in danger of falling, the owner shall
be obliged to demolish it or to execute the
necessary work in order to prevent it from falling.
If the proprietor does not comply with this
obligation, the administrative authorities may order
the demolition of the structure at the expense of the
owner or take measures to insure public safety.
Title III. CO-OWNERSHIP
Art. 484. There is co-ownership whenever the
ownership of an undivided thing or right belongs to
different persons.
In default of contracts, or of special provisions, co-
ownership shall be governed by the provisions of
this Title.
[62.2] Requisites of Co-ownership
There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons.
Hence, in order that a co-ownership may exist the
following requisites must concur:
[62.2.1] Plurality of Subjects
There must be plurality of subjects, who are the co-
owners. The regime of co-ownership exists when
ownership of an undivided thing or right belongs to
different persons. Thus, co-ownership is a
manifestation of the private right of dominion, where in
lieu of its being exercised by the owner in an inclusive
manner over things or rights, there are two or more
owners.
[62.2.2] Unity of the Object
There must be unity of the object (or material indivision),
which means that there is a single object which is not
materially divided, and which is the element which binds
the subjects. The juridical concept of co-ownership is
unity of the object or property and plurality of subjects.
As a consequence, a co-owner of an undivided parcel
of land is an “owner of the whole, and over the whole he
exercises the right of dominion, but he is at the same
time the owner of a portion which is truly abstract.
“Hence, each co-owner of property which is held pro
indiviso exercises his rights over the whole property and
may use and enjoy the same with no other limitation
than that he shall not injure the interests of his co-
owners. The underlying rationale is that until a division
is made, the respective share of each cannot be
determined and every co-owner exercise, together with
his co-participants, joint ownership over the pro indiviso
property, in addition to his use and enjoyment of the
same. The foregoing being the case, there is no
coownership when the different portions owned by
different people are already concretely determined and
separately identifiable, even if not yet technically
described.
[62.2.3] Recognition of Ideal Share
There must be recognition of ideal shares, which
determines the rights and obligations of the co-owners.
It is a basic principle in civil law that before a property
owned in common is actually partitioned, all that the co-
owner has is an ideal or abstract quota or proportionate
share in the entire property.
[62.7] Sources of Co-ownership
Co-ownership may be created by any of the following
causes:
(1) By law: Examples:
(a) Co-ownership will arise if by the will of their
owners two things of the same kind or different
kinds are mixed. Co-ownership will likewise
arise if by the will of only one owner, but in good
faith, two things of the same or different kinds
are mixed or confused.
(b) When a man and woman who are capacitated
to marry each other, live exclusively with each
other as husband and wife without the benefit
of marriage or under a void marriage, the
property acquired by both of them through their
work or industry shall be governed by the rules
on co-ownership.39 In cases of cohabitation not
falling under Article 147 of the Family Code,
only the properties acquired by both of the
parties though their actual joint contribution of
money, property, or industry shall be owned by
them in common in proportion to their
respective contributions.
(2) By contract: An agreement to keep the thing
undivided for a certain period, not exceeding ten years,
shall be valid. This term may be extended by a new
agreement.
(3) By succession: Where there are two or more heirs,
the whole estate of the decedent is, before its partition,
owned in common by such heirs, subject to the payment
of debts of the deceased. The testator may likewise
prohibit the partition of the estate among the heirs for a
period not to exceed twenty (20) years.
(4) By fortuitous event or chance: Co-ownership will
arise if two things of the same kind or different kinds are
mixed by chance and the things are not separable
without injury.
(5) By occupancy: As when two or more persons catch
a wild pig or get forest products or when a hidden
treasure is accidentally discovered by a stranger, who
is not a trespasser, on the land of another.
Art. 487. Any one of the co-owners may bring an
action in ejectment.
Art. 488. Each co-owner shall have a right to compel
the other co-owners to contribute to the expenses
of preservation of the thing or right owned in
common and to the taxes. Any one of the latter may
exempt himself from this obligation by renouncing
so much of his undivided interest as may be
equivalent to his share of the expenses and taxes.
No such waiver shall be made if it is prejudicial to
the co-ownership.
Art. 489. Repairs for preservation may be made at
the will of one of the co-owners, but he must, if
practicable, first notify his co-owners of the
necessity for such repairs. Expenses to improve or
embellish the thing shall be decided upon by a
majority as determined in Article 492.
[66.3] Effect of Failure to Comply with the Notice
Requirement
If the giving of notice is practicable and the co-owner
who undertook the repair for preservation failed to
previously notify the other co-owners of the necessity of
such repair, will the absence of such notice deprive him
of the right to demand contribution from the other co-
owners for the expenses he incurred? According to
Senator Tolentino, such failure does not deprive the co-
owner who incurred the expenses of the right to recover
the proportionate shares of the other co-owners in the
expenses. The only effect of such failure is to place
upon the co-owner who incurred the expenses the
burden of proving the necessity of the repairs and the
reasonableness of the expenses.
Art. 491. None of the co-owners shall, without the
consent of the others, make alterations in the thing
owned in common, even though benefits for all
would result therefrom. However, if the withholding
of the consent by one or more of the co-owners is
clearly prejudicial to the common interest, the
courts may afford adequate relief.
Art. 492. For the administration and better
enjoyment of the thing owned in common, the
resolutions of the majority of the co-owners shall be
binding. There shall be no majority unless the
resolution is approved by the co-owners who
represent the controlling interest in the object of the
coownership.
Should there be no majority or should the
resolution of the majority be seriously prejudicial to
those interested in the property owned in common,
the court, at the instance of an interested party,
shall order such measures as it may deem proper,
including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to
one of the co-owners, and the remainder is owned
in common, the preceding provisions shall apply
only to the part owned in common.
Art. 493. Each co-owner shall have the full
ownership of his part and of the fruits and benefits
pertaining thereto, and he may therefore alienate,
assign or mortgage it, and even substitute another
person in its enjoyment, except when personal
rights are involved. But the effect of the alienation
or the mortgage, with respect to the co-owners,
shall be limited to the portion which may be allotted
to him in the division upon the termination of the co-
ownership.
[70.4] Alienation of Entire Co-owned Property
As a mere part owner, a co-owner cannot alienate the
shares of the other co-owners. The prohibition is
premised on the elementary rule that “no one can give
what he does not have” — nemo dat quod non habet.
As a person can sell only what he owns or is authorized
to sell, the buyer can as a consequence acquire no
more than what the seller can legally transfer. Based
from this principle, no co-owner has the right to alienate
the entire property owned in common. However, even if
a co-owner sells the whole property as his, the sale will
affect only his own share but not those of the other co-
owners who did not consent to the sale, following the
well-established principle that the binding force of a
contract must be recognized as far as it is legally
possible to do so — quando res non valet ut ago, valeat
quantum valere potest (when a thing is of no effect as I
do it, it shall have effect as far as [or in whatever way] it
can).166 Since a co-owner is entitled to sell his
undivided share, a sale of the entire property by one co-
owner without the consent of the other co-owners is not
null and void. However, only the rights of the co-owner-
seller are transferred, thereby making the buyer a co-
owner of the property. Since the sale is not null and void,
the proper action in cases like this is not for the
nullification of the sale. And since such sale had the
effect of making the buyer a co-owner of the property,
an action for the recovery of possession of the thing
owned in common from the buyer who substituted the
co-owner or co-owners who alienated their shares is
likewise not proper169 since the possession by the
buyer, being a new co-owner, will not be regarded as
adverse to the other co-owners but is, in fact, beneficial
to all of them. It is now settled that the appropriate
recourse of co-owners in cases where their consent was
not secured in a sale of the entire property as well as in
a sale merely of the undivided shares of some of the co-
owners is an action for partition under Rule 69 of the
Revised Rules of Court. Such partition should result in
segregating the portion belonging to the seller and its
delivery to the buyer. Neither recovery of possession
nor restitution can be granted since the buyer is a
legitimate proprietor and possessor in joint ownership of
the common property claimed.
Art. 494. No co-owner shall be obliged to remain in
the co-ownership. Each co-owner may demand at
any time the partition of the thing owned in
common, insofar as his share is concerned.
Nevertheless, an agreement to keep the thing
undivided for a certain period of time, not exceeding
ten years, shall be valid. This term may be extended
by a new agreement.
A donor or testator may prohibit partition for a
period which shall not exceed twenty years. Neither
shall there be any partition when it is prohibited by
law. No prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so long
as he expressly or impliedly recognizes the co-
ownership.
§ 72. Extinguishment of Co-ownership
[72.1] Causes of Extinguishment of Co-ownership
Co-ownership may be extinguished or terminated by
any of the following causes:
(1) By the merger in one person of all the interest of the
co-ownership;
(2) By prescription of the thing or right in favor of third
persons or a co-owner;
(3) By destruction of the thing or loss of the right which
is owned in common; and
(4) By partition of the property owned in common.
[72.2] Merger
Merger, as a mode of terminating the co ownership,
takes place when all the interests in a co-ownership are
consolidated in one person. This may happen, for
example, when the shares of the other co-owners are
acquired by one co-owner either by way of purchase or
through the exercise of the right of legal redemption.
[72.3] Destruction of Thing or Lost of Right
A state of co-ownership exists only because there is
unity of the object or property and plurality of subjects.
Note that a co-ownership is only a state of fact which
exists so long as the property remains materially
undivided. Hence, the moment that the state of fact no
longer exists because the object of the co-ownership is
either destroyed or lost, the co-ownership also ceases.
[72.4] Redemption by One Co-Owner of the Entire
Property
The rule in this jurisdiction is that the redemption by one
co-heir or co-owner of the property in its totality does not
vest in him ownership over it since redemption is not a
mode of terminating a co-ownership.
A redemption by a co-owner within the period
prescribed by law inures to the benefit of all the other
co-owners. In such a situation, therefore, the
redemption made by one co-owner will simply entitle
him to collect reimbursement from the remaining co-
owners pursuant to the provisions of Article 488
considering that redemption entails a necessary
expense.
This is exemplified in the case of Adille v. Court of
Appeals. In this case, the land in question originally
belonged to one Feliza Alzul as her own private
property. Sometime in 1939, Feliza sold the property in
pacto de retro to certain third persons, the period of
repurchase being three years. During the period of
redemption, her son in the first marriage repurchased
the subject property, who thereafter was able to secure
title to the property only in his name. Subsequently,
however, the other children of Felisa in her second
marriage fi led an action for partition and accounting
claiming that they were co-owners of the subject
property, being heirs. The son of Felisa in the first
marriage contends that the subject property devolved
upon him upon the failure of his co-heirs to join him in
its redemption within the period required by law.
Answering this particular contention, the Supreme
Court held —
The right of repurchase may be exercised by a co-
owner with aspect to his share alone. While the records
show that the petitioner redeemed the property in its
entirety, shouldering the expenses therefor, that did not
make him the owner of all of it. In other words, it did not
put to end the existing state of co-ownership.
Necessary expenses may be incurred by one co-owner,
subject to his right to collect reimbursement from the
remaining co-owners. There is no doubt that redemption
of property entails a necessary expense. Under the Civil
Code:
ART. 488. Each co-owner shall have a right to compel
the other co-owners to contribute to the expenses of
preservation of the thing or right owned in common and
to the taxes. Any one of the latter may exempt himself
from this obligation by renouncing so much of his
undivided interest as may be equivalent to his share of
the expenses and taxes.
No such waiver shall be made if it is prejudicial to the
coownership. The result is that the property remains to
be in a condition of co-ownership. While a vendee a
retro, under Article 1613 of the Code, “may not be
compelled to consent to a partial redemption,” the
redemption by one co-heir or co-owner of the property
in its totality does not vest in him ownership over it.
Failure on the part of all the co-owners to redeem it
entitles the vendee a retro to retain the property and
consolidate title thereto in his name. But the provision
does not give to the redeeming co-owner the right to the
entire property. It does not provide for a mode of
terminating a co-ownership.
Neither does the fact that the petitioner had succeeded
in securing title over the parcel in his name terminate
the existing co-ownership. While his half-brothers and
sisters are, as we said, liable to him for reimbursement
as and for their shares in redemption expenses, he
cannot claim exclusive right to the property owned in
common. Registration of property is not a means of
acquiring ownership. It operates as a mere notice of
existing title, that is, if there is one. The petitioner must
then be said to be a trustee of the property on behalf of
the private respondents. The Civil Code states:
ART. 1456. If property is acquired through mistake or
fraud, the person obtaining it is, by force of law,
considered a trustee of an implied trust for the benefit of
the person from whom the property comes.
Art. 501. Every co-owner shall, after partition, be
liable for defects of title and quality of the portion
assigned to each of the other co-owners.
§ 74. Partition
[74.1] Definition
Partition, in general, is the separation, division and
assignment of a thing held in common among those to
whom it may belong. The thing itself may be divided,
or its value.
[74.5] When Partition Not Available
The action for partition will not be available in the
following instances:
(1) When there is an agreement among the owners
to keep the thing undivided. However, such
agreement must not exceed ten years. Where
the parties stipulate a definite period of
indivision which exceeds the maximum allowed
by law, said stipulation shall be void only as to
the period beyond such maximum. However,
the period of ten years may be extended by a
new agreement.
(2) When the donor or testator prohibits partition for
a period which shall not exceed twenty (20)
years. Although the Civil Code is silent as to the
effect of the indivision of a property for more
than twenty years, it would be contrary to public
policy to sanction co- ownership beyond the
period set by the law. Otherwise, the 20-year
limitation expressly mandated by the Civil Code
would be rendered meaningless.
(3) When the law prohibits partition such as when
the origin or juridical nature of co ownership
prevents partition:
Examples:
(a) The spouses, who are governed by a regime
of absolute community, cannot agree to
partition the community property without a
judicial order.
(b) The heirs cannot partition the family home
upon the death of the person or persons who
constituted the same unless the court finds
compelling reasons therefore. Upon the death
of the person or persons who constituted the
family home and there are two or more heirs,
the whole estate of the decedent (including the
family home) is, before its partition, owned in
common by such heirs, subject to the payment
of the debts of the deceased. As a rule, any one
of the co-owners may demand partition at any
time. However, so long as the family home
continues as such pursuant to the provisions of
Article 159 of the Family Code, the heirs are
prohibited from partitioning the family home
unless the court finds compelling reason
therefore.
(4) When partition would render the thing unserviceable
for the use for which it is intended.
Title V. POSSESSION
POSSESSION AND THE KINDS THEREOF
Art. 523. Possession is the holding of a thing or the
enjoyment of a right.
Art. 526. He is deemed a possessor in good faith
who is not aware that there exists in his title or
mode of acquisition any flaw which invalidates it.
He is deemed a possessor in bad faith who
possesses in any case contrary to the foregoing.
Mistake upon a doubtful or difficult question of law
may be the basis of good faith.
ACQUISITION OF POSSESSION
Art. 531. Possession is acquired by the material
occupation of a thing or the exercise of a right, or
by the fact that it is subject to the action of our will,
or by the proper acts and legal formalities
established for acquiring such right.
Art. 532. Possession may be acquired by the same
person who is to enjoy it, by his legal
representative, by his agent, or by any person
without any power whatever; but in the last case,
the possession shall not be considered as acquired
until the person in whose name the act of
possession was executed has ratified the same,
without prejudice to the juridical consequences of
negotiorum gestio in a proper case.
§ 84. Acquisition of Possession
[84.1] Modes of Acquiring Possession
Possession is acquired in any of the following ways:
(1) By material occupation of a thing or the exercise of
a right;
(2) By subjecting the thing or right to the action of our
will; and
(3) By the proper acts and legal formalities established
for the acquisition of such right.
The first appears to be an original mode of acquisition
while the others refer to derivative modes.
[84.2] Requisites for acquisition of possession
As discussed in supra § 80.2, the acquisition of
possession presupposes the existence of two essential
elements:
(1) the corpus; and
(2) the animus possidendi.
The first refers refer to the material holding of the thing
or the exercise of the right which may be acquired
through any of the modes mentioned in this article. The
second, on the other hand, refers to the intent to
possess the thing or right. In other words, possession is
not acquired in law in the absence of intent to possess
it although there is physical holding of the thing. For
example, if stolen goods are placed in the bag of a
person by another without the former’s knowledge and
consent, the former is not considered a possessor in law
because of the absence of intent to possess the goods.
[84.3] Material Occupation
The term “material occupation” in Article 531 of the New
Civil Code is used in its ordinary grammatical meaning,
to mean “actual physical possession” or “material
apprehension.” Obviously, this mode applies only to
corporeal objects and does not find application to
acquisition of possession over a right. In this sense, the
term “material occupation” in Article 531 is synonymous
to “occupation” as a mode of acquiring ownership under
Article 712 of the New Civil Code because both involve
the material apprehension of things corporeal. They
differ, however, in the following respects:
(1) the term “occupation” in Article 531 is used in its
ordinary grammatical meaning whereas the term
“occupation” in Article 712 is used in a juridical and
technical meaning;
(2) in Article 531, occupation is a mode of acquiring
possession; whereas, in Article 712, occupation is a
mode of acquiring ownership;
(3) in Article 531, the occupation must be coupled with
intent to possess; whereas, in Article 712, what is
required is intent to own or appropriate;
(4) in Article 531, occupation as a mode of acquiring
possession applies whether the property is with an
owner or not; in Article 712, however, occupation can
take place only with respect to property without an
owner;
(5) in Article 531, occupation as a mode of acquiring
possession can have as its object a parcel of land; in
occupation as a mode of acquiring ownership under
Article 712, it cannot have as its object a parcel of land.
The term “material occupation” in Article 531 includes
two forms of constructive delivery:
(1) tradicion brevi manu and
(2) tradicion constitutum possessorium.
Note that in these kinds of constructive delivery,
material occupation is involved.82 But for those kinds of
constructive delivery where material occupation is not
involved, such as tradicion symbolica and tradicion
longa manu, the mode of acquisition of possession is by
subjecting the thing to the action of our will and not
material occupation.
[84.4] Doctrine of Constructive Possession
The doctrine of constructive possession applies when
the possession is under title calling for the whole. As a
rule, the possession and cultivation of a portion of a tract
under claim of ownership of all is a constructive
possession of all, if the remainder is not in the adverse
possession of another.84 Stated otherwise, the actual
possession of part of the property is deemed to extend
to the whole because possession in the eyes of the law
does not mean that a man has to have his feet on every
square meter of ground before it can be said that he is
in possession.
For this doctrine to apply the following requisites must
be present:
(1) the alleged possessor must be in actual
possession of a portion or part of the property;
(2) he is claiming ownership of the whole area;
(3) the remainder of the area must not be in the
adverse possession of another person; and
(4) the area claimed must be reasonable.
[84.5] Subjection to Action of Will
This particular mode does not involve any material
apprehension to distinguish it from the first mode
(material occupation). It connotes, however, a degree of
control over the thing sufficient to subject the same to
the action of one’s will. What is important in this mode
is the intention to possess manifested by certain facts
which are present. Included in this mode are the two
forms of constructive delivery known as tradicion
simbolica and tradicion longa manu. Tradicion
simbolica takes place through delivery of symbols or
some object which represent those to be delivered thus
placing the thing under the control of the transferee.
Through this mode, the delivery of the keys to a
warehouse is sufficient to transfer possession.
[84.6] Proper Acts and Legal Formalities
This third mode of acquiring possession refers to any
juridical act by which possession is acquired or to which
the law gives the force of acts of possession.96
Examples of these juridical acts are donations, intestate
and testate succession, writs of possession, judicial or
administrative possession and execution of public
instruments. In the case of Muyco v. Montilla, et al., the
possession given by the sheriff to the assignees of the
original purchasers of the hacienda, in compliance with
the order of the court in an action brought against the
former owners of said hacienda was viewed by the
Supreme Court as constituting the proper acts and legal
formalities referred to in Article 531 of the New Civil
Code.
[84.7] Acquisition of Possession Over Rights
As discussed in supra § 84.3, material occupation is not
available as a mode of acquiring possession over rights
since the same requires actual physical possession and
applies only to corporeal objects. With respect to rights,
possession over it is acquired through any of the
following means:
(1) by exercise of such right;
(2) by subjecting it to the action of our will; and
(3) by proper acts and legal formalities.
[84.8] By Whom Possession Acquired
In the same way that possession may be exercised by
the owner or holder either personally or through an
agent, its acquisition may likewise be made personally
by the person who is to enjoy it or through his agent or
legal representative.99 It may even be acquired by any
person, for and on behalf of the person who is to enjoy
it, even in the absence of any authority from the latter.
Of course, the “agent” referred to in Article 532 of the
New Civil Code is someone who has been authorized
to acquire possession by the person who is to enjoy it.
In other words, he is acquiring possession not for
himself but for his principal. In such a situation,
possession is considered acquired by the principal from
the time that the same is acquired by the agent.
If a person has not been authorized by the intended
principal but possession is nonetheless acquired by the
former only in representation of the latter, the intended
principal may or may not ratify the act of possession in
his name. In the event that the intended principal ratifies
the act of possession done in his name, the possession
shall be considered acquired by him only upon such
ratification.
The rule above, however, is without prejudice to the
juridical consequences of negotiorum gestio in a proper
case. According to Senator Tolentino, when a person
voluntarily manages the affairs of another (negotiorum
gestio), the ratification by the person for whom the thing
was acquired will retroact to the time of apprehension
by the gestor, and the possession of the former must be
deemed to have been acquired from that moment.
[84.9] Capacity to Acquire Possession
The rule with respect to the requirement of capacity to
act in relation to acquisition of possession is embodied
in Article 535 of the New Civil Code which reads:
“Art. 535. Minors and incapacitated persons may
acquire the possession of things; but they need the
assistance of their legal representatives in order to
exercise the rights which from the possession arise in
their favor.”
It is clear from this article that it is applicable only to
acquisition of possession by minors and incapacitated
person over things but not over rights. As explained in
supra § 84.7, possession over rights may only be
acquired through any of the modes therein discussed.
Note that in any of said modes, capacity to act is
necessary for the acquisition of possession.
With respect to acquisition of possession over things,
Article 535 contemplates principally of acquisition
through “material occupation” since this mode does not
require capacity to act. However, the law likewise
contemplates of other means of acquisition for which
the minor or other incapacitated persons has the
necessary capacity, such as pure or simple donations
and succession, whether testate or intestate.
Art. 538. Possession as a fact cannot be recognized
at the same time in two different personalities
except in the cases of co-possession.
Should a question arise regarding the fact of
possession, the present possessor shall be
preferred; if there are two possessors, the one
longer in possession; if the dates of the possession
are the same, the one who presents a title; and if all
these conditions are equal, the thing shall be placed
in judicial deposit pending determination of its
possession or ownership through proper
proceedings.
Art. 540. Only the possession acquired and enjoyed
in the concept of owner can serve as a title for
acquiring dominion.
§ 89. Possession in the Concept of Owner
The following are the effects of possession in the
concept of owner:
(1) It raises a disputable presumption of ownership (Art.
433, NCC).
(2) It creates a disputable presumption that the
possessor has just title and he cannot be obliged to
show it. (Art. 541, NCC)
(3) It can ripen into ownership through acquisitive
prescription (Art. 540, NCC), subject to the additional
requirements under Article 1118 of the Civil Code.
[89.1] Presumption of Just Title
Actual possession under claim of ownership raises a
disputable presumption of ownership. In addition, the
possessor in the concept of owner (en concepto de
dueño) has in his favor the legal presumption that he
possesses with a just title and he cannot be obliged to
show it. This presumption can be availed of by the
possessor in cases where another person claims a
better right over the property. In action reivindicatoria,
for example, the person who claims that he has a better
right to the property has the burden of proving his title,
in addition to proving the identity of the land claimed. In
other words, the plaintiff must rely on the strength of his
own title, not on the weakness of the defendant’s title
because the latter enjoys the presumption of just title
which he cannot be obliged to show. The presumption,
however, is disputable and may be rebutted by proof to
the contrary. So long as the person claiming a better
right is unable to prove his own title, the presumption
prevails in favor of the possessor en concepto de
dueño. Hence, the latter is not even required to prove
his title. If such other person, however, prevails in
overthrowing the presumption by proving the existence
of his title upon which the claim is based, the possessor
is now obliged to show and prove his title.
The presumption of the existence of a just title in favor
of the possessor en concepto de dueño may not be
availed by him for the purpose of acquiring ownership
through acquisitive prescription. For the latter purpose,
the law requires that the just title of the possessor must
be proved:
“Art. 1131. For the purposes of prescription, just title
must be proved; it is never presumed.” (New Civil Code)
Art. 546. Necessary expenses shall be refunded to
every possessor; but only the possessor in good
faith may retain the thing until he has been
reimbursed therefor.
Useful expenses shall be refunded only to the
possessor in good faith with the same right of
retention, the person who has defeated him in the
possession having the option of refunding the
amount of the expenses or of paying the increase in
value which the thing may have acquired by reason
thereof.
been unlawfully deprived thereof, may recover it
from the person in possession of the same. If the
possessor of a movable lost or of which the owner
has been unlawfully deprived, has acquired it in
good faith at a public sale, the owner cannot obtain
its return without reimbursing the price paid
therefor.
[101.3] Cases Where There Is No Recovery
There are cases where the owner may no longer
recover the movable property even if he has lost the
same or he has been unlawfully deprived thereof. In the
following cases, the owner of a movable property who
has lost it or has been unlawfully deprived of it may no
longer recover the thing from the possessor:
(1) If the possessor acquired the thing at a merchant’s
store, or in fairs, or in markets in accordance with the
Code of Commerce and special laws;
(2) Where the possessor acquired the thing by sale
under statutory power of sale or under the order of a
court of competent jurisdiction;
(3) When the possessor is a holder in due course of a
negotiable document of title to goods or where the
owner is barred by the principle of negotiable
instruments;
(4) Where the owner is barred by reason of his own acts
or neglect from denying the seller’s title; and
(5) Where the owner can no longer recover the thing
from the possessor by reason of prescription.

Art. 547. If the useful improvements can be removed

without damage to the principal thing, the
possessor in good faith may remove them, unless
the person who recovers the possession exercises
the option under paragraph 2 of the preceding
article.

Art. 548. Expenses for pure luxury or mere pleasure

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

Art. 555. A possessor may lose his possession:

(1) By the abandonment of the thing;

(2) By an assignment made to another either by
onerous or gratuitous title;

(3) By the destruction or total loss of the thing, or

because it goes out of commerce;

(4) By the possession of another, subject to the

provisions of Article 537, if the new possession has
lasted longer than one year. But the real right of
possession is not lost till after the lapse of ten
years.

Art. 559. The possession of movable property

acquired in good faith is equivalent to a title.
Nevertheless, one who has lost any movable or has