PROPERTY MIDTERMS REVIEWER
may be carried on in a building or on a
Definition of Property
- Mass of things or objects useful to human
activity and which are necessary to life.
Right to Property
- Juridical tie by virtue of which a person
has exclusive power to obtain or receive
all benefits from a thing, except those
prohibited by law or by the rights of
others.
- Emphasis on the vinculum between the
man and the thing.
Ownership
- Mass of rights over the thing.
Right to Property v. Ownership
- Used interchangeably.
Requisites of Property:
i. Utility/Capacity to satisfy human
wants
ii. Individuality/Substance
iii. Susceptibility to appropriation
Classification of Property:
RP: Immovables/Real Property (Art 415):
1. Lands, buildings, roads, and
constructions of all kinds adhered to the
soil.
2. Trees, plants, growing fruits, wh ile 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.
a. Objects must be placed by owner
b. Intent to attach permanently
essential
5. Machinery, receptacles, instruments and
implements, intended by the owner of the
tenement for an industry or works which
piece of land, and which tend directly to
meet the needs of the said industry or
works.
a. Machinery, etc. must be placed by
tenement owner or his agent
b. Industry or work must be carried
on in a building or on a piece of
land
c. Machinery, etc. must tend directly
to meet the needs of said industry
or works
6. Animal houses, pigeon-houses,
beehives, fish ponds or breeding places
of similar nature, in case their owner
places 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 in a river,
lake or coast.
10. Contracts for public works, and
servitudes and other real rights over
immovable property.
PP: Movables/Personal Property (Art 416-417)
1. Those movables susceptible for
appropriation which are not included in
the preceding paragraph.
2. Real property which by any special
provisions of law is considered as
personalty.
3. Forces of nature which are brought under
control by science.
4. In general, all things that can be
transported from place to place without
impairment of the real property to which
they are fixed.
1. Obligations and actions which have for
their object movables or demandable
sums.
 2. Shares of stock of agricultural, - Consumables cannot be subject matter
commercial or industrial entities, of a commodatum unless the purpose of
although they may have real estate. the contract is not the consumption of the
object (e.g. exhibition)
Importance of Classification: - Money or other consumable object may
1. Criminal Law be the subject matter of a simple loan or
RP: Usurpation a mutuum.
PP: Robbery and Theft Fungible: can be substituted
2. Forms of Contracts
RP: real mortgage/antichresis; written Property in Relation to Owner
instrument
PP: chattel mortgage/simple Property Classified According to Ownership (Art
loan/mutuum; may be oral 419):
3. Prescription - Public Dominion: owned by State (or its
RP: 10 years, ordinary; 30 years, political subdivisions) in its public or
extraordinary sovereign capacity intended for public
PP: 8 years use
4. Venue - Private Ownership: owned by State in its
RP: RTC of its location private capacity (Patrimonial Property) or
PP: Depends upon election of by private persons, either individually or
plaintiff/defendant collectively.
5. Taxation
RP: real property tax Presumption: Property is State property in the
PP: n/a absence of any showing to the contrary.
6. Double Sales (Art 1544)
RP: first to register in Registry of Property Public Dominion Properties (Art 420)
PP: first to acquire in good faith 1. Those intended for public use, such as
7. Preference of Credits roads, canals, rivers, torrents, ports and
RP: Art 2241 bridges constructed by the State, banks,
PP: Art 2242 shore, roadsteads and others of similar
8. Action for Recovery character.
RP: action for forcible entry/unlawful 2. Those which belong to the State, without
detainer being for public use, and are intended for
PP: replevin/manual delivery of personal some public service OR for the
property development of the national wealth.

Immovable/Real Property (Art 415) Public dominion property is outside the

- By nature: cannot be moved from place
to place (Par 1 ,8)
- By incorporation: essentially movables
but are attached to an immovable in such
a manner as to be an integral part thereof
(Par 2,3,7)
- By destination: basically movables but by
purpose for which they have been placed
in an immovable, partake of latter’s
nature due to added utility (Par 4,5,6,9)
- By analogy/convenience: rights (Par 10)
Concept of Consumable/Fungible:
Consumable: aptitude to repeated use
commerce of men:
1. Cannot be sold, leased, or otherwise be
the subject matter of contracts.
2. Cannot be acquired by prescription, not
even by municipalities against the State.
3. Cannot be encumbered, attached, or be
subject to levy and sold at public auction.
Public lands != government lands
- Government lands may also cover
patrimonial property which are private in
character
Under Art 422, public dominion properties may
be converted to patrimonial properties when
they are no longer intended for public use or
public service.
- There must be a formal and explicit
declaration by executive or legislative
declaring that said property is no longer
needed for public use or public service.
Private Ownership (Art 425)
Ownership in General
- Independent right of exclusive enjoyment
and control of a thing for the purpose of
deriving therefrom all the advantages
required by the reasonable needs of the
owner (or right holder) and the promotion
of general welfare, but subject to the
restrictions imposed by law and rights of
others (see Rights to Property).
Rights included in ownership:
1. Right to use & enjoy (jus utendi)
2. Right to consume the thing by its use (jus
abutendi)
3. Right to dispose or alienate, encumber,
transform & destroy (jus disponendi)
4. Right to vindicate or exclude from the
possession of the thing owned by any
other person to whom the owner has not
transmitted such thing by proper action
for restitution (jus vindicandi)
5. Right to possess (jus possidendi)
6. Right to the fruits (jus fruendi)
7. Right to accessories (jus accessionis)
Actions for recovery: (Note: a possessor has
presumption of title in his favor according to Art
433)
Recovery of Personal Property:
1. Replevin/Manual Delivery
- Covered by Rule 60, ROC. Applicant for
replevin must state in an affidavit that he
is the owner of property claimed and has
the burden of proof of proving his
ownership and/or right of possession
over subject property.
Recovery of Real Property
1. Forcible Entry/Unlawful Detainer (accion
interdictal)
- issue of possession de facto
- Forcible Entry, possession already
unlawful from the time of entry.
- Unlawful Detainer, possession was first
lawful and then lapsed and became
illegal.
- Action should be brought within one year
from the date of actual entry (Forcible
Entry) or from the date of last demand to
vacate (Unlawful Detainer)
- Covered under Rule 70, ROC
2. Accion Publiciana
- for cases of dispossession aside from
forcible entry or unlawful detainer, or 1
year of bringing an action has already
expired.
- must be brought within a period of 10
years
- issue involved is possession de jure of
realty independently of the title
- action for recovery of possession
- he who claims to have a better right to a
property must prove not only his right but
also the identity of the property claimed
3. Accion Reivindicatoria
- recovery of possession based on
ownership
- issue involved is ownership
For differences:
https://carpiodelacruzlawoffice.wordpress.com/tag
/accion-publiciana/
Limitations on the rights of ownership:
Generally,
1. Police Power
- power of the State to enact laws &
regulations in relation to persons and
property as may promote public health,
morals and welfare.
- no compensation due; damage to
property without injury
2. Taxation
- power of the State to impose charges
upon property
3. Eminent Domain
- Power of the State to take private
property and appropriate for public use
subject to just compensation
Specific
1. Easements
2. Non-injury to others (Art 431)
3. State of necessity (Art 432)
 4. Presumption of ownership to possessor;
True owner must resort to judicial
process.
Principle of Self-Help (Art 429)
- owner or lawful possessor has the right
to use reasonable force necessary to
repel or prevent an actual or threatened
unlawful physical invasion or usurpation
of his property.
- Requisites:
1. Person defending is the owner or
lawful possessor
2. Person defending must only use force
as may be reasonably necessary to
repel/prevent
3. Person defending can only exercise
the doctrine of self-help at the time of
actual or threatened dispossession,
or immediately after the
dispossession in order to regain.
4. Person against whom force is
employed has acted or is acting
unlawfully.
Right to enclose or fence (Art 430)
- only limitation is right of others to existing
servitudes imposed on land or tenement
Right to recover just compensation in cases of
eminent domain (Art 435 & 437)
Right to Hidden Treasure (Art 438-439)
Right of Accession
- right of the owner of a thing, real or
personal, to become the owner of
everything which is produced thereby, or
which is incorporated or attached thereto,
either naturally or artificially.
Accession vs Accessory
- Accession are the fruits of, or additions
to, or improvements upon, a thing (the
principal), including buildings, planting,
sowing (industrial), and accession
natural such as alluvion, avulsion,
change of course of rivers and formation
of islands.
- Accessories are things joined to, or
included with, the principal thing for the
latter’s embellishment.
NOTE: Accession is NOT a mode of acquiring
ownership under Art 712. Accession is an
exercise of the right of ownership.
General Principles of Accession:
1. Accessory follows the principal
2. No unjust enrichment: recipient of fruits is
obligated to reimburse necessary
expenses (production, gathering and
preservation) of third person. (Art 443)
3. All works, sowing, and planting are
presumed made by Owner at his
expense, unless contrary is proved. (Art
446)
4. Accessory incorporated to Principal must
be capable of separation without injury
(Art 447)
Kinds of Accession:
1. Accession Discreta: extension of the right
of ownership of a person to the products
(fruits) of a thing which belongs to such
person (Art 440)
i. Natural fruits: spontaneous producs of
the soil and the young of animals
ii. Industrial fruits: produced by lands of
any kind through cultivation or labor
iii. Civil fruits: rents of buildings, lease of
lands, annuities
(Art 442)
Exceptions:
a. Possession in good faith
b. Usufruct
c. Lease of rural lands
d. Pledge
e. Antichresis
Obligation of recipient of fruits to reimburse
necessary expenses of third person, regardless
of good/bad faith (Art 443).
2. Accession Continua: extension of the
right of ownership of a person to that
which is incorporated or attached
(accessory) to a thing which belongs to
such person.
wrt Real Property:
 i. Accession Industrial: building, 1. The deposit or accumulation of soil or
planting, sowing sediment must be gradual and
imperceptible.
Rules: (if both parties are equally in bad faith, 2. Accretion results from the effects or
apply when all are in good faith) action of the current of the waters of
the river.
Land & Materials belong to different owners, 3. The land where accretion takes place
land owner uses materials (Art 447) must be adjacent to the bank of a
river.

Avulsion – accretion which takes place when the

current segregates from an estate on its bank a
known portion and transfers it to another estate,
in which case, the owner of the estate to which
the segregated portion belonged, retains
ownership thereof granted that he recovers
within 2 years.
Requisities:
1. The segregation and transfer must be
caused by the current of a river,
Land Owner with Builder, Planter, Sower (Art creek, or torrent.
448-454) 2. The segregation and transfer must be
sudden and abrupt.
3. The portion of land transported must
be known or identifiable.

Change of River Course: (Art 461-463)

- Old river bed shall belong to land owners
occupied by new course of the river
- However, land owners of those adjoined
to old river bed have the right to acquire
the same by paying the value thereof
Requisites:
1. There must be a natural change in the
course of the waters of the river.
2. Change must be abrupt or sudden.

wrt Personal Property:

LO, BPS, & MO (Art 455)
- see BOC pp. 110-112
ii. Accession Natural: alluvion, avulsion,
change of river course, formation of
islands
Alluvion – accretion which the banks of rivers
gradually receive from the effects of the current
of the waters. Ownership is to the owner of lands
adjoining the banks of rivers. (Art 457)
Requisites:
i. Conjunction/Adjunction:
- union of 2 separate things owned
separately by different persons which
cannot be separated without injury to
either.
- Ownership of the whole thing shall be to
the owner of the principal with the other
owner compensated. To consider
principal, it must not be the
ornamentation.
- If cannot be determined from above,
principal is the one of greater value or
then of greater volume.

Kinds:
a. Inclusion/Engraftment: such as
when diamond is set on a gold ring
b. Soldadura/Soldering: metal united
with another metal. Ferruminacion
if same type of metal; Plumbatura,
if different types of metals.
c. Tejido/Weaving: textiles, threads
belonging to different owners.
d. Pintura/Painting: paints on
another’s canvas
e. Escritura/Writing: writes on paper
of another.
ii. Mixture (Commixtion/Confusion):
confusion-liquids; commixtion-solids
iii. Specification: giving of new form to a
material belonging to other (e.g. grape
to wine)
Quieting of Title
see also: https://batasnatin.com/law-library/civil-
law/property/1178-quieting-of-title.html
Cloud on Title – a semblance of title, either legal
or equitable, or a claim or a right in real property,
appearing in some legal form, but which is, in
fact, invalid or which would be inequitable to
enforce.
Requisites for existence of cloud:
1. There is an instrument, record, claim,
encumbrance, or proceeding which is
apparently valid or effective.
2. Such instrument, is in truth and in fact
invalid, ineffective, voidable or
unenforceable (despite its prima facie
appearance of validity), or has been
extinguished, terminated or has been
barred by extinctive prescription.
3. Such instrument may be prejudicial to
said title.
Broadly, 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.
Requisites for action:
1. Plaintiff has a legal or an equitable title to
or interest in the subject real property.
2. The adverse deed, claim, or proceeding
claimed to be casting cloud on plaintiff’s
title must be shown to be invalid or
inoperative despite its prima facie
appearance of validity or legal efficacy.
Action to Quiet Title vs Action to Remove Cloud:
- Art 476 (1) vs Art 476 (2)
- Action to Quiet Title is a remedial action
involving a present adverse claim while
Action to Remove Cloud is a preventive
action to prevent future cloud on the title.
Nature of Action: Quasi in Rem
- Neither in rem nor in personam but being
against the person in respect of the res,
wherein the judgment does not extend
beyond the subject property.
Prescriptibility of action
1. Plaintiff in possession: Imprescriptible
2. Plaintiff not in possession
- 10 years, ordinary prescription through
possession (Art 1134)
- 30 years, extraordinary prescription
through uninterrupted, adverse
possession without need of a title or of
good faith (Art 1137)
- May be barred by laches/estoppel
Obligation of plaintiff to return/reimburse (Art
479)
- Plaintiff is bound to return to defendant all
the benefits that 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.
Co-Ownership
- Form of ownership which exists
whenever an undivided thing or right
belongs to different persons.
- As a right, 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.
Requisites:
1. There must be a plurality of owners
 2. Object of ownership must be an
undivided thing (or right)
3. Each co-owner’s right must be limited
only to his ideal share of the physical
whole
Characteristics:
1. There are two or more co-owners
2. There is a single object which is not
materially or physically divided and over
which his ideal share of the whole, each
co-owner exercises ownership, together
with his co-owners.
3. There is no mutual representation by the
co-owners.
4. It exists for the common enjoyment of the
co-owners.
5. It has no distinct legal personality.
6. Governed first of all by the contract of the
parties; otherwise by special legal
provisions, and in default of such, Title III
on Co-Ownership of the Civil Code.
Sources of Co-Ownershing:
1. Law: party wall; FC 147
2. Contract: Art 494 (2); Art 1775
3. Succession: heirs ipso facto become co-
owners of the estate
4. Occupation: harvesting & fishing under
Art 713
5. Chance – by mixture or confusion (Art
472, 473)
Distinguished from joint ownership:
- No abstract share ownership by co-
owners, their rights being inseparable
- A joint tenant is not permitted to dispose
his share or interest in the property
without the consent of the others.
- If a joint tenant dies, his ownership dies
with him
- Disability of a joint tenant inures to the
benefit of others for purpose of
prescription
Distinguished from Partnership:
- Partnership may only be created by
contract
- Purpose is to obtain profits
- Partner cannot dispose his share or find
a substitute without the consent of others
- A partner can generally bind the
partnership (mutual agency)
- Distribution of profits is subject to
stipulation of partners while in co-
ownership, proportional to the co-owner’s
interests.
- Death of a partner dissolves the
partnership
- No limits to duration
Rights of Each Co-Owner:
1. Proportionate share in benefits and
charges; Presumption of equality of
shares (Art 485)
2. Limitation on co-owner’s rights (Art 486):
- Co-owner may use the thing owned in
common in accordance with its intended
purpose and in such a way not to injure
the interest of the co-ownership
3. Right to bring an action in ejectment (Art
487)
- A co-owner can institute an action by
himself or on behalf of other co-owners
4. Contribution to expenses for preservation
(Art 488)
- Expenses of preservation and taxes are
borne by all
- A co-owner who advanced for such
purpose may reimburse from the others
in proportion to their respective interests
- Only necessary expenses covered
- A co-owner who wishes to be exempt
from such obligation may renounce only
so much of his undivided interest
equivalent to his share of expenses
5. Right to make repairs for preservation
(Art 489)
- Co-owner must first NOTIFY the co-
owners of the necessity for the repairs
6. Expenses to improve or embellish (Art
489)
- Consent of majority required in relation to
Art 492
7. Different stories of a house belonging to
different owners (Art 490)
8. Alterations (Art 491)
- It contemplates a change made by the
co-owner in the things owned in
common which involves:
 i. Change of the thing from the state or
essence in which the others believe it
should remain
ii. Withdrawal of the thing from the use
to which they were originally intended
iii. Any other transformation which
prejudices the condition or substance
of the thing or its enjoyment by the
others.
- Alterations can only be made with the
unanimous consent of other co-owners.
- However, if withholding the consent by
other co-owners is prejudicial to the
common interest, the court may afford
adequate relief.
Liability of alteration in bad faith:
- Lose what he has spent
- Obliged to demolish improvements done
- Liable to pay for losses and damages to
co-owners.
9. Administration (Art 492)
- For administration, resolution of the
majority of co-owners shall be binding
- Majority = represents controlling interests
- Distinguished from alteration: alteration,
permanent; administration, transitory
effects
- If there’s no majority and a majority
resolution is prejudicial to the interest of
the co-ownership, court may take proper
measures including the appointment of
an administrator.
10. Alienation of Co-Owned Property (Art
493)
- A co-owner shall have full ownership of
his part, that is his undivided interest or
share in the common property
- A co-owner shall have full ownership of
the fruits and benefits pertaining thereto.
- A co-owner may alienate, assign, or
mortgage his ideal interest/share
independently of his co-owners
- A co-owner may even substitute another
person in the enjoyment of his part,
except when personal (relational) rights
are involved.
- A co-owner is given the legal right of
redemption in case the shares of all other
co-owners or any of them are sold to a
third person
Sale/Mortgage of Common Property:
1. Undivided Portion – co-owner may sell
his pro-indiviso share but transferee does
not acquire any specific or determinate
physical portion.
2. Definite Portion – sale is only valid
subject only to the condition that the
interests acquired by the vendee must be
limited to the part that may be assigned
to the vendor co-owner upon termination
of co-ownership.
3. Whole Property – if a co-owner sells the
whole property as his own, or without
consent of co-owners, sale is valid
insofar as his ideal share unless the sale
is authorized by other co-owners.
11. Partition (Art 496)
- In general, is the separation, division,
assignment of a thing held in common by
those to whom it may belong.
- May be made by agreement between
parties or by judicial proceedings.
- Thing itself may be divided or its value
(Art 1079)
- See Rule 69, ROC
12. Right to demand partition/agree to keep
thing undivided (Art 494)
- An agreement to keep the thing
undivided for a certain period of time not
exceeding 10 years is valid. May be
extended by a new agreement.
- Donor/Testator may prohibit partition for
a period not exceeding 20 years.
- No prescription when prohibited by law
(community/conjugal property; family
home; party walls)
13. Prescription in favor of co-owner (Art
494)
- General rule, prescription does not run in
favor of or against a co-owner/co-heir
- Actions of co-owner/co-heir against his
co-owner/co-heirs are imprescriptible if
he recognizes, expressly or impliedly, the
co-ownership
- Acquisitive prescription by laches cannot
be invoked
 - If a co-owner/co-heir repudiates the co-
ownership, prescription begins to run
from time of repudiation.
*co-ownership is a form of trust.
A trustee may claim title by prescription
founded on adverse possession when it
appears that:
- He had performed unequivocal acts of
repudiation of co-ownership amounting
to an ouster of the other co-owners
- Such positive acts of repudiation have
been made known to other co-owners
- Evidence is clear, complete and
conclusive in order to establish
prescription
- Possession is open, continuous,
exclusive and notrious
14. When physical division of thing owned in
common is precluded (Art 495, 498)
- Partition cannot be demanded when the
physical division of the thing owned in
common would render it unserviceable
for its intended use (Art 495)
- May be allotted to one and indemnify the
others
- If above cannot be resolved, the thing
shall be sold and its proceeds distributed
(Art 498)
15. Rights of creditors/assignees of co-
owners (Art 497)
- Creditors/assignees may take part in
division or object to it being effected
without their concurrence.
- Implied right to notice of partition.
Effect of Partition on 3rd Persons:
- Retain rights of mortgage, servituted, or
any other real rights, belonging to them
before division was made. Personal
rights pertaining to third persons against
the co-ownership shall also remain in
force (Art 499)
Obligation of Co-Owners upon Partition:
1) Mutual accounting for benefits received
and reimbursement for expenses made
(in proportion to their interest)
- Each co-owner shall pay for damages
caused by his own negligence. (Art 500)
2) Reciprocal warranty for defects of title or
quality of the portion assigned to a co-
owner.
Possession
- Holding of a thing or right, whether by
material occupation or by the fact that the
thing or the right is subjected to the action
of our will
- Manresa: no need for actual or physical
holding/subject to control
4 Degrees of Possession:
1. Mere holding without any right (e.g.
possession by a thief)
2. Possession with a juridical title but not
that of an owner/Juridical Possession
(e.g. lessee, pledgee)
3. Possession with a just title but not that of
an owner/Real Possessory Right (A
purchases a car from B in good faith but
B is not the true owner)
4. Possession with a title of dominium, with
just title from the owner (possession
springing from ownership)
Requisites:
1. There must be a holding or control
(occupancy, taking or apprehension) of a
thing or a right.
2. There must be deliberate intention to
possess.
3. The possession must be by virtue of
one’s own right
Ownership != Possession
- A person may be declared the owner but
he may not be entitled to possession.
(see lessees or tenants)
What can be possessed? (Art 530)
- Only things and rights which are
susceptible of being appropriated may be
the object of possession (in sum,
Property)
Possession in the name of another –
Direct/Indirect
Art 524. Possession may be exercised in one’s
own name or in that of another
Possession in another’s name:
1. Voluntary – by virtue of agreement
(agent)
2. Necessary – mother possesses for child
still in womb
3. Unauthorized
Possession as owner vs Possession as holder
with ownership belonging to another (Art 525):
1. In the Concept of Owner
- One who whether in good faith or bad
faith, claims to be, and acts as if he is the
owner
- aka adverse possession
- possession that may ripen into ownership
2. In the Concept of Holder, Ownership
Pertaining to Another Person
- Recognizes another to be the owner
Possession in Good Faith vs Bad Faith (Art 526)
Good Faith: not aware of any existing flaw or
defect in his title or mode of acquisition, which
flaw or defect renders it invalid
Bad Faith: aware; state of mind determined by
overt acts or conduct of the possessor
*Mistake upon a doubtful or difficult question of
law may be the basis of good faith
Art 527. Good faith is always presumed, and
upon him who alleges bad faith on the part of a
possessor rests the burden of proof.
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.
- Cessation of good faith upon notice of
defect or flaw
- Possession of good faith is converted to
possession in bad faith
Art 529. It is presumed that possession
continues to be enjoyed in the same character
in which it was acquired, until the contrary is
proved.
- Presumption of continuity of character of
possession
*Things that cannot be appropriated/possessed:
- Property of Public Dominion
- Res Communes (sunlight, air, ocean)
Manner of Acquiring Possession (Art 531)
1. Material Occupation of a thing
a. Constructive Possession
- Occupancy of part in the name of
the whole under such
circumstances that the law
extends the occupancy to the
possession of the whole
b. Constructive Delivery
- acts which, although not
conferring physical possession of
the thing, have been held
equivalent to actual acts of
delivery.
o Traditio Brevi Manu
- thing already in transferee’s hands
(lessee who purchases land leased)
o Traditio Constitutum
Possessorium
- thing remains in transferor’s hands
(owner sells land but retains physical
possession via commodatum)
2. Subject to the action of our will
- Refers more to the right of possession
than to possession as a fact
o Traditio Longa Manu
- effected by the mere consent or
agreement of the parties (vendor
points to thing sold, vendee then
controls thing pointed)
o Traditio Simbolica
- effected by delivering an object
(such as key where the thing sold is
stored or kept, symbolizing the
placing of control to the vendee)
3. Proper acts and legal formalities
- Acquisition by virtue of just title, inter
vivos or mortis causa (succession,
donation, contract, execution of public
instru
In whose name may possession be acquired
(Art 532):
- Personal: must have intent to possess,
capacity to possess, object must be
capable of being possessed
- Thru an authorized person (legal
rep/agent): must have intent to possess
for principal, authority/capacity to
possess for another, principal has intent
and capacity to possess
- Thru an unauthorized person (as in
negotiorum gestio): must have intent to
possess for the principal, capacity of
principal to possess, ratification by
principal (express or implied)
Acquisition of Possession thru Succession
Mortis Causa (Art 533)
1. If heir accepts – from the moment of
death of decedent since there is no
interruption
2. If heir refuses – he is deemed NEVER to
have possessed the same.
Good Faith/Bad Faith vis-à-vis possession of
hereditary property (Art 534)
1. Father in GF, Son accepted in GF:
- For prescription, possession by decedent
may be added to that of present
possessor; 10 years needed (Art 1138.1)
2. Father in BF, Son accepted in BF:
- For prescription, possession by decedent
may be added to that of present
possessor; 30 years needed (Art 1138.1)
3. Father in BF, Son accepted in GF:
- Effects of good faith shall only take place
upon death of decedent
Art 535. Minors and incapacitated persons may
acquire the possession of things; but they need
the assistance of their legal representatives in
order to exercise the rights which from the
possession arise in their favor.
Art. 536. In no case may possession be
acquired through force or intimidation as long as
there is a possessor who objects thereto. He
who believes that he has an action or a right to
deprive another of the holding of a thing, must
invoke the aid of the competent court, if the
holder should refuse to deliver the thing.
Art. 537. Acts merely tolerated, and those
executed clandestinely and without the
knowledge of the possessor of a thing, or by
violence, do not affect possession
- Allowed not by reason of duty or
obligation but by impulse of sense of
neigborliness
- Possession cannot be acquired through
Force/Intimidation, Tolerance, Secret
Possession
Possession by two or more persons at the same
time (Art 538)
- Possession cannot be recognized in two
different personalities, except in cases of
co-possession by co-possessor without
conflict in claim or interest
Order of Preference:
1. Present Possessor or Actual Possessor
2. If there are 2 or more possessors, the
one longer in possession
3. If dates of possession are the same, the
one who presents title
4. If all conditions are equal, the thing shall
be placed in judicial deposit pending
determination of possession or
ownership through proper proceedings.
Effects of Possession
Protection of Possession (Art 539)
- Every possessor has the right to be
respected in his possession; if disturbed
therein, possessor has right to be
protected in or restored to said
possession
Remember Actions for Recovery of Possession:
accion interdictal, accion publiciana, accion
reivindicatoria
Writ of Preliminary Mandatory Injunction
- An order granted by the court prior to a
judgment requiring a party to a case to
perform particular act or acts
 - Must be filed by possessor deprived of
his possession through “forcible entry”
within 10 days from filing action for
“forcible entry”
Requisites for the Issuance of the Writ:
1. In Forcible Entry Cases:
- file within 10 days from the time the
complaint for forcible entry is filed
2. In Unlawful Detainer Cases:
- file within 10 days from the time the appeal
is perfected
Art 540. Only the possession acquired and
enjoyed in the concept of owner can serve as a
title for acquiring dominion.
- Only a possessor in the concept of owner
can eventually acquire by prescription
NOTE: Payment of land taxes is not evidence of
ownership, but a persuasive and positive
indicium which shows the will of a person to
possess in the concept of owner.
Art 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.
- Two Requisites to Raise Disputable
Presumption of Ownership:
1. One must be in (actual or
constructive) possession
2. Possession must be in the concept of
owner
Effects of Possession in Concept of Owner:
1. Possession may by lapse of time ripen
into full ownership, subject to certain
exceptions
2. Presumption of just title and cannot be
obliged to show or prove it (Exception:
Art. 1131, just title must be proved for
purpose of prescription)
3. Possessor may bring all actions
necessary to protect his possession
except accion reivindicatoria
4. May employ self-help under Art 429
5. Possessor may ask for inscription of such
real right of possession in the registry of
property
6. Has right to the fruits and reimbursement
for expenses (subject to determination of
good or bad faith)
7. Upon recovery of possession which has
been unlawfully deprived, may demand
fruits and damages
8. Do everything that the law authorizes
owner to do until he is ousted by one who
has a better right
9. Possession in good faith and possession
in bad faith (Cessation under Art 528)
Kinds of Titles:
1. True and Valid Title: title which by itself is
sufficient to transfer ownership without
the necessity of letting the prescriptive
period elapse
2. Colorable Title: title where, although
there is a mode of transferring
ownership, but something is wrong
because grantor is not the owner.
3. Putative Title: title where, although a
person believes himself to be the owner,
he nonetheless is not, because there was
no mode of acquiring ownership.
Art 542. The possession of real property
presumes that of the movables therein, so long
as it is not shown or proved that they should be
excluded.
- Movables found in an immovable are
presumably possessed also by the
possessor of the latter
Art 543. Each one of the participants of a thing
possessed in common shall be deemed to have
exclusively possessed the part which may be
allotted to him upon the division thereof, for the
entire period during which the co-possession
lasted. Interruption in the possession of the
whole or 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.
- Example: A and B have been co-
possessors of a piece of land since 2002.
Partition was made in 2006. Both A and
B are deemed to have possessed
exclusively their portion since 2002.
Rights of possessor in good faith to fruits (Art
544):
 - Entitled to fruits received before
possession is legally interrupted
- Natural and industrial fruits are
considered received from the time they
are severed/gathered
- Civil fruits are deemed to accrue daily
and belong to the possessor in good faith
in that proportion
Fruits of Cessation of Good Faith (Art 545)
- Refers to pending fruits, natural or
industrial
- Net harvest shall be divided in proportion
to the time of possession
- Expenses shall also be divided pro rata
to the time of possession
Refund/Reimbursement of expenses incurred
by Possessor (Art 546, 547):
Necessary Expenses:
- Refunded to every possessor
- But only possessor in good faith has right
of retention until he has been reimbursed
Useful Expenses:
- Refunded only to possessor in good faith
with same right of retention until he has
been reimbursed with the amount spent
or increase in value (option held by lawful
possessor); or
- Right of removal if not reimbursed
provided no substantial damage is
caused to the principal (Art 547)
Luxurious Expenses (Art 548, 549)
If Possessor in Good Faith:
- Right of removal without right of
reimbursement
o Granted that principal will not
suffer any damage
o Lawful possessor does not prefer
to refund the amount expended
If Possessor in Bad Faith:
- Same as possessor in good faith but
lawful possessor is only liable for the
value of the ornaments if he wishes to
retain them
Art 550. The costs of litigation over the property
shall be borne by every possessor.
Art 551. Improvements caused by nature or time
shall always inure to the benefit of the person
who has succeeded in recovering possession.
- Goes to lawful possessor
Liability of Possessors for deterioration/loss (Art
552):
If Possessor in Good Faith:
- Not liable before judicial summons in any
case
- Not liable thru fortuitous event
- Liable after judicial summons if he acted
with fraudulent intent or negligence
If Possessor in Bad Faith:
- Liable in all cases, including fortuitous
event
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.
Loss of Possession (Art 555):
1. Abandonment
2. Assignment to another, either onerous or
gratuitous
3. Destruction or total loss of thing or goes
out of commerce
4. Possession by another; if possession
had lasted longer than one year; real
right of possession not lost after 10 years
Abandonment – voluntary renunciation of the
thing
Requisites:
- Abandoner is possessor in the concept of
owner
- Abandoner must have capacity to
renounce or to alienate
- There must be physical relinquishment of
the thing to be abandoned
- There must be no expectation to recover
or intent to return/get back
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.
- Possession of movables is not lost if he
knows the general location
Art 557. The possession of immovables and or annotated in the Registry of Property to
real rights is not deemed lost, or transferred for prejudice third persons)
purposes of prescription to the prejudice of third
persons, except in accordance with the How Constituted? (Art 563)
provisions of the Mortgage Law and the Land - By Law
Registration Laws. - By will of private persons expressed in
- Applies to usufruct or easements acts inter vivos
- By will of private person expressed in last
Art 558. Acts relating to possession, executed will
or agreed to by one who possesses a thing - By prescription
belonging to another as a mere holder to enjoy
or kept it, in any character, do not bind or Extent of Usufruct (Art 564):
prejudice the owner, unless he gave said holder - As to extent of object: whole of a thing or
express authority to do such acts, or ratifies part of the thing
them subsequently. - As to number of beneficiaries one or
- Acts of possessor in the concept of several (latter may be simultaneous or
holder does not bind actual owner successive)
- As to effectivity or extinguishment: Pure
Acquisition of possession of movable property (no condition), With a Term, or
(Art 559): Conditional (either suspensive or
- If acquired in good faith, equivalent to title resolutory)
- As to subject matter: over things or over
Art 561. One who recovers, according to law, rights (must not be strictly personal or
possession unjustly lost, shall be deemed for all intransmissible)
purposes which may redound to his benefit, to
have enjoyed it without interruption Lease vs Usufruct
- Lawful recovery is required. Lease Usufruct
- Presumption of continuous possession. Creation Generally by By law,
contract contract, will
of testator or
prescription
Nature Personal Real right
Usufruct right
- A real right of a temporary nature, which Execution of Lessee not Usufructuary
authorizes its holder to enjoy all the Repairs obliged pays for
benefits which results from the normal ordinary
enjoyment of another’s property, with the repairs and
obligation to return, at the designated fruits (Art
time, either the same thing, or in special 592)
cases, its equivalent. (Art 562) Payment of Generally not Annual
- Includes both jus utendi and jus fruendi Taxes obliged charges,
liens and
Characteristics: taxes on the
1. It is a real right of use and enjoyment fruits are at
2. It is of temporary duration the expense
3. It is transmissible of the
4. It may be constituted on real or personal usufructuary
property, consumable or non- (Art 596)
consumable, tangible or intangible, the
ownership of which is vested in another.
(if constituted on real property, must be Rights of the Usufructuary:

Art 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.
- Entitled to all fruits but treated as a
stranger when it comes to hidden
treasure (see Art 438)
Rules on Growing/Pending Natural & Industrial
Fruits (Art 567):
1. Fruits growing at beginning of usufruct:
belongs to the usufructuary with no
requirement to refund the owner for
cultivation and production expenses
2. Fruits growin at termination of usufruct:
belongs to the owner but he is bound to
reimburse the usufructuary for his
cultivation expenses
Lease by Usufructuary (Art 568)
- If usufruct expires before lease,
usufructuary and his heirs are only
entitled to the portion of lease during
period of usufruct, rent for remaining
period belong to the owner.
Art 569. Civil fruits are deemed to accrue daily,
and belong to the usufructuary in proportion to
the time the usufruct may last.
- Rents are civil fruits.
Usufruct constituted on certain rights (Art 570)
- Any payment due, such as rent, interest
on bonds, are considered civil fruits.
Art 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.
Transactions by the Usufructuary (Art 572)
- He may lease it (Art 568) even without
owner’s consent (Art 590)
- He cannot alienate, pledge or mortgage
(Art 2085.2)
- Cannot sell future crops (Art 567)
- Cannot lease things for longer periods
except rural lands (Art 1682)
Usufruct over things subject to deterioration (Art
573)
- Usufructuary not liable if due to wear and
tear/normally deteriorates. He only needs
to return the thing at its current condition
a the termination of usufruct. If he fails to
do so, he should pay its value.
- Usufructuary is liable for damage
suffered by the thing by reason of his
fraud or negligence
Usufruct over consumable things (Art 574):
At the end of the usufruct, usufructuary
should either:
- Pay the appraised value if they were
appraised when delivered; or
- Return the same quantity and quality; or
- Pay current price at time of termination of
usufruct
Rights/Obligations of Usufructuary of Fruit-
Bearing Trees/Shrubs (Art 575, 576):
- Usufructuary may make use of dead
trunks or accidentally cut-off/uprooted as
long as he replaces them with new plants
- If by calamity or extraordinary event, it
would be burdensome to replace all
uprooted plants, he may demand owner
to clear them.
Note: Art 577 no longer applicable as State
owns forest resources
Usufructuary of judicial action to recover (Art
578)
- Usufructuary is just a designated
attorney-in-fact
- Usufructuary is considered a real party-
in-interest
Improvements Made by Usufructuary (Art 579,
580) Rules:
1. Usufructuary may make improvements
on the property held in usufruct but must
not alter the form or substance of the
property
2. He may remove the improvements only if
possible to do so without damage to the
property
3. He has no right to be indemnified if he
does not exercise his right to remove
 4. If the improvements cannot be removed
without damage, he may set-off the same
with the owner
5. If the usufructuary does not wish to
exercise his right of removal, the owner
cannot compel him to remove the
improvements
6. If the usufructuary wishes to exercise his
right of removal, owner cannot prevent
him
7. Usufructuary’s right to remove includes
the right to destroy them as long as it
won’t damage the principal
8. The right to remove is enforceable only
against the owner but not against a
purchases in good faith to whom a clean
title has been issued.
Right to Set-Off: improvements made have
increased the value of the property and damage
to the same was caused through the fault of the
usufructuary.
- If damage > value of improvements:
usufructuary is liable for the difference as
indemnity
- If damage < value of improvements:
usufructuary may remove excess in
value corresponding to a portion of the
improvements if this can be done without
injury to property. Otherwise, excess in
value accrues to the owner.
Right of naked owner (Art 581)
- Not precluded from alienating the
property held in usufruct as long as he
does not alter its form or substance
Right of usufructuary of thing held in common
(Art 582)
- Usufructuary assumes all administration
rights of the co-owner
- Upon partition, usufructuary is only
limited to the fruits of the part allocated to
the naked co-owner.
Obligations of the Usufructuary:
Obligations before entering into enjoyment of
property (Art 583)
- Only necessary before physical
possession and enjoyment
1. To make an inventory of the property
2. To give security/bond
Notice to be given: Notice must be made by
usufructuary; Concurrence by naked owner not
required.
Form of inventory: may be contained in a private
document. But in order to bind third persons,
must be in a public instrument
Contents of inventory: itemized list and an
appraisal of the movables, and description &
condition of the immovables.
Legal Exceptions to give security by
usufructuary (Art 584)
1. Donor who has reserved the usufruct of
the property donated
2. Parents who are usufructuaries’ of their
children’s property except when the
parents contract a second marriage
Exemption from making inventory or giving
security (Art 585) “when no one will be injured
thereby”
Cases when usufructuary is excused from the
preliminary obligation:
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 (usually in last wills)
3. Where the usufructuary asks that he be
exempted from the obligation and no one
will be injured thereby
Effects of failure to give security (Art 586)
- Owner may demand that immovables be
placed under administration o
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.

Caucion Juratoria/Promise Under Oath (Art
587)
- Court allows usufructuary to enjoy the
usufruct by virtue of a promise under oath
if the usufructuary cannot afford to give
security
- Usufructuary must first ask the naked
owner to grant him the usufructuary
rights despite not fulfilling his preliminary
obligation; If naked owner refuses, he
may resort to courts.
- - If usufructuary advanced, he shall
Effect of Giving Security (Art 588)
- Benefits retroacts to the day usufruct was
constituted
Duty to exercise due care (Art 589)
- Usufructuary should take care of the
usufruct like a good father of a family
Consequence of alienation or lease of right of
usufruct (Art 590)
- If usufructuary alienates or leases his
right of usufruct, he is liable for the
negligence of his substitute
Obligation with respect to ordinary repairs (Art
592)
- Usufructuary is bound to make ordinary
repairs (as required by wear and tear due
to natural use of the thing and is
indispensable to its preservation) without
demand from the owner
- If usufructuary fails to make them after
demand of the owner, owner may make
the repairs at the expense of the
usufructuary
Extraordinary Repairs (Art 593, 594)
- Usufructuary has obligation to notify
owner if the need is urgent
- Repairs will be at the expense of the
owner but may demand legal interest
from the usufructuary
- Usufructuary may make the repairs at his
expense if owner did not make them and
repair is indispensable. He may exercise
right to set-off at end of usufruct.
Non-diminution of value of things in usufruct (Art
595)
- Owner may construct any works or
improvements to the immovable property
held in usufruct provided that it does not
diminish the value of the property or
prejudice usufructuary rights
Annual Charges and Taxes on Fruits (Art 596)
- At the expense of usufructuary
Taxes on Capital During the Usufruct (Art 597)
- At the expense of naked owner and may
demand legal interest from usufructuary
recover from owner at end of usufruct
Universal/Comprehensive Usufruct (Art 598)
- Comprehends the whole of the patrimony
of the owner and he has debts
1. If there is a stipulation for the payment by
the usufructuary of the debts of the
owner, former is only liable to debts
contracted by the later before the
constitution of the usufruct and does not
exceed the value of property held in
usufruct
2. In the absence of stipulation,
usufructuary will be liable to pay as if the
usufruct was constituted in fraud of
creditors
Matured Credits Forming Part of Usufruct (Art
599)
- If usufructuary did not give security, he
needs authorization from naked owner to
claim and use it
Usufruct of mortgaged immovable (Art 600)
- Usufructuary not obliged to pay mortgage
- If property was judicially foreclosed,
owner is liable to usufructuary
Notice of acts prejudicial to owner (Art 601)
- Usufructuary is obliged to notify acts of
any third person that is prejudicial to the
owner. Failure to do so, would make
usufructuary liable to damages as if it’s
his fault.
Costs of suit with regard to the usufruct (Art 602)
- Borne by the usufructuary
Extinguishment of Usufruct:
Causes of Extinguishment (Art 603)
1. Death of usufructuary (not of owner!)
2. Expiration of period or fulfillment of
resolutory condition
3. Merger of rights of usufruct and naked
ownership in one person
4. Express renunciation of usufruct
5. Total loss of property
6. Termination of right of the person
constituting the usufruct
7. Prescription
Partial loss of a thing given in usufruct (Art 604)
- Usufruct continues with the remaining
part unless the partial loss is substantial
to consider it as total loss
Note: Art 605 not applicable since corporate life
is not restricted to 50 years under Revised
Corporation Code
Usufruct until a Third Person Reaches a
Specified Age (Art 606)
- Still subsists for the number of years
specified even if third person dies before
attaining such age
Usufruct on Land & Building when Building is
Destroyed (Art 607)
- The destruction of the building terminates
the usufruct on the building but not the
usufruct on the land. Therefore, the
usufructuary is still entitled to the use of
the land and in place of the building, the
materials thereof.
- If owner wishes to construct another
building on the land, he shall be obliged
to pay to the usufructuary interest upon
the value of land and materials during the
continuance of the usufruct
Sharing in Insurance Expenses (Art 608)
- If usufructuary and naked owner shares
in payment, usufructuary shall continue
to enjoy the new building to be
constructed, or if the owner does not wish
to rebuild, the usufructuary shall receive
the legal interest on the insurance
proceeds which will go to the owner.
- If usufructuary does not contribute,
owner gets the full insurance indemnity in
case of loss, the right of the usufructuary
being limited to the legal interest on the
value of the land and of the materials.
Expropriation of thing in usufruct (Art 609)
- If expropriated for public use, naked
owner is given the option to replace it with
another thing of the same value and of
similar conditions or to pay to the
usufructuary the legal interest on the
amount of indemnity for the whole period
of the usufruct.
Effect of Bad Use of Usufruct (Art 610)
- if the bad use causes considerable injury
to the owner, not to the thing itself, he
may demand delivery of the thing and
bind himself to pay annually to the
usufructuary net proceeds of the same
Usufruct in favor of several persons (Art 611)
- only extinguished upon death of last
usufructuary
Obligation of usufructuary to return thing (Art
612)
- Upon the termination of the usufruct, it is
the duty of the usufructuary to return the
property to the naked owner. The
usufructuary is expressly granted the
right of retention until he is reimbursed for
the amount of taxes levied on the capital
(Art.
- 597.) and for the increase in value
caused by extraordinary repairs. (Art.
574.) He has no right to reimbursement
for useful improvements. (Art. 579.)
- After delivery has been made, the
security or mortgage given by the
usufructuary shall be cancelled
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EASEMENTS/NUISANCE/ETC
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DONATION
Art. 725: an act of liberality whereby donor
disposes gratuitously a thing or a right in favor
of the done who accepts it
Elements:
1. Bilateral Act – requires an offer from donor
and acceptance of donee
2. Unilateral Contract – only the donor is bound
to fulfill an obligation
3. Consideration – liberality of the donor
4. Delivery – ordinarily not required before
ownership can be transferred
Kinds of Donations:
As to Effectivity
1. Donation Inter Vivos
- takes effect during lifetime of donor
- must follow formalities of a donation
(simple/remuneratory) or a contract (onerous)
- governed by general provision on contracts
and obligations in all that is not determined in
this Title (Art. 732)
2. Donation Mortis Causa
- takes effect after death of donor
- partake of the nature of testamentary
provisions and shall be governed by the rules on
Succession (Art 728)
- special case; if donor intends that donation be
effective during donor’s lifetime but property
delivered after death, considered as inter vivos.
Donee is entitled to the fruits of the property at
the time of acceptance unless donor provides
otherwise. (Art 729)
- must have formalities of a will
As to Cause:
1. Simple
- cause is pure liberality; not subject to any
condition (no strings attached)
2. Remuneratory
- given on account of donee’s merits or services
rendered to the donor provided that they do not
constitute a demandable debt (reward for past
service)
3. Conditional
- subject to condition (suspensive or resolutory)
- Special Cases:
a. Illegal or impossible conditions: condition is
considered not imposed in simple or
remuneratory donations (donation is still valid)
b. If suspensive condition takes effect beyond
death of donor: still considered inter vivos
donation
c. Subject to resolutory condition of donor’s
survival: still considered inter vivos
4. Modal
- to reward future services or when certain future
charges or burdens is less than the value of the
donation
- Form: In so far as it is onerous, follow
contracts; insofar as simple, follow donations.
5. Onerous
- burden, charges or value of future service is
equal to that of the thing donated
- strictly not a donation but a contract
Perfection of Donation
- from the moment the donor knows of the
acceptance by the done
- may be actual or constructive
- Acceptance must be made in both lifetime of
donor and donee for inter vivos (Art. 746)
Donation of Movable
- may be made orally or in writing
- if oral, object of donation must be
simultaneously delivered
- if value of personal property to be donated
exceeds PHP 5000, donation and acceptance
must be made in writing (Art 748)
Donation of Immovable
- must be made in a public document, specifying
the property donated and the value of the
charges which donee must satisfy
- acceptance may be made in the same deed of
donation or separate public document (Art 749)
PERSONS WHO MAY GIVE/RECEIVE A
DONATION
Who may make donations?
Art 735 – All persons who may contract and
dispose of their property may make a donation
Important: CAPACITY TO CONTRACT AND
DISPOSE
Remember:
Art. 39. The following circumstances, among
others, modify or limit capacity to act: age,
insanity, imbecility, the state of being a deaf-
mute, penalty, prodigality, family relations,
alienage, absence, insolvency and trusteeship.
Art. 1390 (1):
The following contracts are voidable or
annullable, even though there may have been
no damage to the contracting parties:
(1) Those where one of the parties is incapable
of giving consent to a contract;
Guardians and trustees are not allowed to
donate the property entrusted to them (Art 736)
- Prohibition did not exist in old law
- May only apply to simple donations;
onerous donations has benefit (Araneta
v. Perez)
- Donation would be valid if it’s made in the
name of and with the consent of the ward
provided if judicial permission is
obtained.
Donor’s capacity is determined at the time of
making of the donation (Art 737)
- Making -> perfection of donation, there is
knowledge of acceptance
Who may receive donations?
Art 738 – All those who are not specially
disqualified by law therefor may accept
donations.
Example:
- Art. 739 (void due to immoral
considerations)
- Spouses making/receiving donations
from each other
- Alien corporations (Consti prohibition)
Art 740 – Incapacity to succeed by will shall be
applicable to donations inter vivos
- Those listed under Art 1027 are
incapable of succeeding
- Absolute DQ: Art 739; Art 919-921
(causes against descendants,
ascendants and spouses that would
disqualify); no case can donations be
made
- Relative DQ: Art 1027 (except Par 4);
under certain conditions, these persons
cannot inherit/receive donations
Art 741 – minors and others who cannot contract
may become donees but acceptance shall be
done through their parents or legal
representatives.
Art 742 – Donations made to conceived and
unborn children may be accepted by those
persons who would legally represent them if
they were already born
- Civil personality of the child shall
commence from the time of conception
for all purposes favorable to him subject
to conditions of Art. 41 (Art 40)
- Fetus is considered born if it is alive at the
time of delivery. If intra-uterine life is less
than 7 mos, will only be considered born
if still alive after 24 hrs from delivery. (Art
41)
Art 743 – Donations made to incapacitated
persons shall be void, though simulated under
the guise of another contract or through a
person who is interposed.
- Incapacitated here means
disqualified/not allowed to become
donees.
Art 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 (same principle
as double sales, Art 1544)
If movable: first possessor in good faith
If immovable: first person who acquired
in good faith and had it recorded in the Registry
of Property. If no registration, first in possession
of good faith or who has oldest title.
Art 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,
donation shall be void.
- applies only for donations inter vivos
Thru whom acceptance may be made:
- Donee, personally
- Authorized person with special power to
accept donation
- Authorized person with general power
sufficient to accept donation.
*Authorization must be in a public instrument
Art 746 – Acceptance must be made during the
lifetime of the donor and of the done
- Applies only for donation inter vivos
Art 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 Art 749
speaks.
- Acceptance in representative capacity
must notify the donor subject to
formalities of Art 749 (3).
EFFECT OF DONATIONS AND LIMITATIONS
THEREON
Art 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
acceptance of donation, are by law entitled to be
supported by the donor. Without such
reservation, the donation shall be reduced on
petition of any person affected.
- Reduction of donation may be upon
discretion of the court (circumstances
affecting: sufficient income)
- Excessive donation is not void but merely
reducible to the extent support of the
relatives is impaired.
- See also donations that would defraud
creditors (Art 1387)
Art 751 – Donations cannot comprehend future
property (anything which the donor cannot
dispose of at the time of donation)
Art 752 – the donor could not donate more than
what he may give by will. Donations in excess of
this limitation are inofficious.
Inofficiuous donations – those that impair or
prejudice the legitime or successional rights of
compulsory heirs
- Action to revoke or reduce the inofficious
donation must be brought by the donor’s
compulsory heirs within 5 years after the
donor’s death (Art 1149)
General Limitations on Right to Give Donations:
- Must not be inofficuous
- Must not prejudice creditors
- Must not harm the donor’s and his
relative’s support
Right to accretion:
Definition: accretion is a right by virtue of which,
when 2 or more persons are called to the same
inheritance, devise or legacy, the part assigned
to the one who renounces or cannot receive his
share, or who died before the testator, is added
or incorporated to that of his co-heirs, co-
devisees, or co -legatees (Art 1015)
Under Art 753:
No right of accretion if donation is made to
several persons jointly and it is understood to be
in equal shares, unless donor has otherwise
provided.
There is right of accretion over donations made
to the husband and wife jointly.
Art 754 – Subrogation
Art 755 – Right to dispose of donated property
may be made by donor. Failure to exercise such
right in the lifetime of donor, the right would be
reserved to done (See Range Rover example,
Paras 932)
Art 756 – Property may be donated to one
person and the usufruct of such to another
person provided that all the donees are living at
the time of the donation
Art 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. (see example in Paras
933)
Art 758 – Donation with obligation to pay debts
of donor. Only when it is stipulated in the
donation, done only liable to debts incurred by
donor prior to donation and should not exceed
value of donated property.
Art 759 – if there’s no stipulation regarding
payment of debts, donee is only liable to pay
debts when the donation is made in fraud of
creditors. 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 donation.
REVOCATION AND REDUCTION OF
DONATIONS
Art 760 – donations inter vivos made by a
person with no descendant may revoke or
reduce his donation subject to the following
conditions:
1. Birth of donor’s child
2. Appearance of a donor’s child
3. Subsequent adoption of a minor child
- Extent of Revocation (Art 761):
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 birth, appearance
or adoption of a child.
- Effect of Revocation (Art 762):
If donation has been reduced/revoked,
done must:
1. Return the property if it is still with
him.
2. Give the value (price of sale) if
property has been sold
3. Donor may pay off debt but he can
recover reimbursement from donee if
property is mortgaged
4. Return value (at perfection of
donation) if property cannot be
returned.
- Prescription of action for revocation (Art
763):
4 years counted from birth,
reappearance, adoption (conditions in Art
760).
Action cannot be renounced but is
transmitted upon the death of donor to
his descendants.
Art 764 – donor may revoke donation due to
non-compliance of conditions set to donee
within 4 years from non-compliance of condition.
(serves as a resolutory condition)
o Court action necessary
Revocation by reason of ingratitude:
Art 765 – instances when donor can revoke
Art 766 – alienations and mortgages before the
notation of the complaint for revocation in the
Registry of Property shall subsist despite
revocation.
Art 767 – if donated property is already with third
persons or the sum of which has been
mortgaged, donor shall have right to demand
value of property (valuated at time of donation)
Renunciation/Transmission of Right to Revoke
on ground of ingratitude
Art 769 – Renunciation of right to revoke cannot
be made in advance; Can renounce after act of
ingratitude has been committed (sign of
forgiveness)
Action to revoke because of ingratitude
prescribes in one year counted from the time:
- Donor knew of the fact/cause of
ingratitude
- It was possible for donor to bring action

Art 770 – Action to revoke is not transmissible to

heirs

Obligation of Donee to Return Fruits: (Art 768)

If revoked under Art 760/Ingratitude
(765)/Inofficious (771) – not obliged to return
fruits except from the date of filing of complaint.

If based on non-compliance of conditions of

donation, return property and fruits received
after having failed to fulfill the condition.

Reduction in Inofficious Donations:

Art 771 – inofficious donations 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
done from appropriating the fruits.

Art 772 – who can ask for the reduction of

inofficious donation:
(a) the compulsory heirs of the donor (whether
children, other descendants, ascendants or
surviving spouse)
(b) the heirs and successors-in-interest of the
abovementioned compulsory heirs.
*Cannot be waived during lifetime of donor
*Prescribes within 5 years from death of donor
(Art 1149, when law does not set prescription
period)