To :

Atty. Aliakhbar A. Jumrani

From :
Miguel A. Anas Jr.
Subject :
Position Paper in Civil Law Review I
Topic :
Whether Actual Occupation Should be a Preferential Right in
Partition of Co-owned Properties
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Have you heard the old saying, “blood is thicker than water?”

This position paper, in one way or the other, has something to do with the answer to the
above-mentioned question as it relates on the issue as to whether or not actual
occupation should be considered a preferential right in partition of co-owned properties.
As author of this manifesto, I am standing on the affirmative side of the issue.

By the way, the afore-quoted saying means that family comes first before friends. In
other words, familial bonds will always be stronger than bonds of friendship. This is
usually true, but if it is taken further and ask the question, “is blood thicker than money?”
then, there are quite numerous instances that such question is proven to be absolutely
false. When I was a kid, I always heard my father saying, “Blood is thicker than water,
but money is thicker than blood.” He always mentioned this ancient proverb whenever
somebody came to our house to seek his legal services regarding a property dispute
among the family members or nearest relatives. And indeed, this is usually happening
among the nearest blood relatives, particularly in cases of controversy involving
common or co-owned properties. Not only in this area has that such ancient saying
been proven to be true, but in the field of politics as well. Even husband and wife,
siblings, and nearest relatives are fighting against one another during election time to
the extent of risking or giving their lives just to hold a public office vested with power and
authority which may be used also as possible means of accumulating wealth.

At any rate, our judicial history reveals that our courts have been flooded with cases
concerning partition of co-owned properties, i.e. from small to big estates. To begin with,
co-ownership means the right of common dominion which two or more persons have
in a spiritual part of a thing, not materially or physically divided. It is defined by the Civil
Code as: “Art. 484. There is co-ownership whenever the ownership of an undivided
thing or right belongs to different persons.” There are various ways of creating this type
of property ownership, but for purposes of discussing the issue at hand, I will limit its
creation by succession which is defined as a mode of acquisition by virtue of which the
property, rights and obligations to the extent of the value of the inheritance, of a person
are transmitted through his death to another or others either by will or by operation of
law.

Undoubtedly, one of the most common disputes Filipino families have is dividing their
inheritance from parents or other relatives who passed away. This happens most of the
time if the deceased failed to leave any Will that will determine what specific or definite
properties belong to each of the heirs, or if the decedent failed to allocate the properties
equally. There are also cases where rights of legitimate and illegitimate children are
unclear. In other words, partition and distribution of the estate left by the decedent is an
issue to all the surviving heirs. It is, therefore, a challenge for all parties to come to an
agreement, which involves the proposed partition as there are various things that must
be taken into consideration.

It bears to stress that before partition, the surviving heirs are co-owners of the whole
estate or property left by the decedent. This is particularly provided under Article 1078
of the New Civil Code of the Philippines, which states: “Art. 1078. 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.” Eventually,

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there will come a time when one of the heirs or co-owners will decide to divide the
property as a way of claiming the portion he/she co-owned, especially when problem
arises due to undivided property. While this can be a classic example of sibling rivalry or
internal feud between family members, such conflict may end up in court if not settled.
Thus, this will now become proof for the afore-quoted saying which states that money is
thicker than blood.

As mentioned earlier, where there are two or more heirs, the whole estate of the
decedent is, before its partition, owned in common by such heirs. To put an end to the
co-ownership, any one of the heirs or co-owners can demand at any time the partition or
distribution of the inherited property as a matter of right. This may be done judicially or
extrajudicially, not to mention the so called constructive partition which refers to every
act that is intended to put an end to indivision among co-heirs and legatees or devisees
is deemed to be a partition, although it should purport to be other transactions.
Corollarily, judicial partition is effected by filing an action for partition under Rule 69 of
the Rules of Court while extra-judicial partition is made by means of a public instrument
filed in the proper office of the Register of Deeds.

On the other hand, the co-owners may agree that the thing owned in common shall
remain undivided for a certain period of time. This is pursuant to Article 494 of the Civil
Code which states that “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 10 years, shall be valid. This term
may be extended by a new agreement.”

To reiterate, there are many cases of this nature that have been resolved and decided
by our courts of law since long time ago up to the present time. These cases stemmed
from varied and different factual antecedents, albeit others have some similarities in
their surrounding circumstances. In view of the complexities of such cases, many errors
have been committed by various trial courts in rendering their decisions, not to mention
the Court of Appeals. Anent this kind of controversy, the Supreme Court, in its catena of
decisions had repeatedly held that no individual can claim title to a definite or concrete
portion before partition of co-owned property. Each co-owner only possesses a right to
sell or alienate his ideal share after partition. However, in case he disposes his share
before partition, such disposition does not make the sale or alienation null and void.
What will be affected on the sale is only his proportionate share, subject to the results of
the partition. The co-owners who did not give their consent to the sale stand to be
unaffected by the alienation.

In the case of Juan Cabrera vs. Henry Ysaac, G.R. No. 166790, November 19, 2014,
the Supreme Court held that specific rules attach when the seller co-owns the object of
the contract. Sale of a portion of the property is considered an alteration of the thing
owned in common. Under the Civil Code, such disposition requires the unanimous
consent of the other co-owners. However, the rules also allow a co-owner to alienate his
or her part in the co-ownership.

These two rules are reconciled through jurisprudence.

If the alienation precedes the partition, the co-owner cannot sell a definite portion of the
land without consent from his or her co-owners. He or she could only sell the undivided
interest of the co-owned property. As summarized in Lopez v. Ilustre, "if he is the owner
of an undivided half of a tract of land, he has a right to sell and convey an undivided
half, but he has no right to divide the lot into two parts, and convey the whole of one part
by metes and bounds."

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Moreover, the Supreme Court declared that a co-owner could enter into a contract to
sell a definite portion of the property. However, such contract is still subject to the
suspensive condition of the partition of the property, and that the other co-owners agree
that the part subject of the contract to sell vests in favor of the co-owner’s buyer. Hence,
the co-owners’ consent is an important factor for the sale to ripen.

In many other cases, the Court has ruled that 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. This is because the sale or other disposition of
a co-owner affects only his undivided share and the transferee gets only what would
correspond to his grantor in the partition of the thing owned in common.

Notwithstanding the foregoing, this position paper maintains the contention that actual
occupation should be a preferential right in partition of co-owned properties. It could not
be denied that there are instances whereby the co-owners or co-heirs are usually
disputing as to who among them have a better right over a specific property or a definite
portion of the undivided property which they co-owned. In the absence of specific rule to
guide the co-owners to come up with the compromise agreement on this issue, the
disputing parties will be constrained to bring the matter before the court. Hence, this will
entail much money for the litigation costs and expenses, not to mention the long time
they will spend for the judicial resolution of the issue. There are also some simple
cases, the common problem of which merely relates to the issue as to who among the
claimant co-owners shall be preferred to own the specific property or a definite portion
thereof which is the subject of partition.

In cases involving determination of preferential right in the course of equitable

distribution and assignment of specific property to the heirs or co-owners, it is deemed
imperative to set a legal basis for the determination of such preferential right. This will
not only simplify the cases of this nature to the benefit of the parties, but it will also ease
the process of amicable settlement on the matter before the Barangay Lupon as well as
the judicial proceedings of complaints in action for partition under Rule 69 of the Rules
of Court. As a matter of course, therefore, I stand firm to my position that actual
occupation should be a preferential right in partition of co-owned properties. Otherwise
stated, such occupation shall be made as basis in determining who among the heirs or
co-owners has a better right to own a specific property or any definite portion thereof in
the process of partition and distribution of co-owned properties, either judicially or
extrajudicially.

To illustrate, if the siblings (heirs) wish to extra-judicially partition their inheritance (co-
owned properties left by their deceased parents), they will have less problem in
determining which specific property to be assigned to each of them by respecting the
preferential right of actual occupation of specific property or a portion thereof by any of
them. Hence, this legal basis is of great help or advantageous to them as it may keep
them away from long, strenuous, and costly litigation, not to mention its adverse effect
on their relationship. Another example is, if a ten-hectare property is owned equally by
ten co-owners, the undivided interest of a co-owner is one hectare. Usually, the definite
portion of that interest is initially determined during extrajudicial partition. As such, it is
crucial that the co-owners agree to which portion of the land goes to whom, and if not
settled, the parties may eventually engage in a court battle. With a settled preferential
right, however, the parties may find ease in agreeing as to what portion of the land goes
to each of them.

If disagreement arises between the heirs or co-owners in their effort to personally settle
and partition their properties in common, thereby compelling them to bring the matter
before the Lupon ng Barangay for mediation or conciliation, the proposed legal basis
setting actual occupation as preferential right over the subject property shall be of great
help to the barangay officials in settling the dispute amicably. This also true if the

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controversy is brought under the operation of judicial proceedings as provided under the
aforementioned Rule 69. As already stated, the setting forth of the legal basis is of
paramount importance and of great help to the contending parties in their effort to agree
and make the partition among themselves pursuant to Sec. 2, Rule 69 of the Rules of
Court. This will also simplify the proceedings and lessen the burden of assigning the co-
owned real estate, or a portion thereof to the preferred parties interested therein as
provided under Sec. 5 of the said Rule.

Foregoing considered, I find no disadvantages nor contrary arguments which may

overrule my position to set a legal basis in the assignment of specific property, or a
definite portion thereof by setting or establishing actual occupation as a preferential right
in partition of co-owned properties. Nevertheless, this right should not be interpreted as
an absolute right as there may be some instances, depending on the surrounding
circumstances of each particular case that requires just and equitable partition and
distribution of co-owned properties, and by taking into consideration the interests of all
the parties.

In fine, I am humbly but vehemently take a stand in holding my position that actual
occupation should be a preferential right in partition of co-owned properties.

Remember, “Blood is thicker than water, but money is thicker than blood!”